Dover v. State
| Decision Date | 06 October 1924 |
| Docket Number | 155 |
| Citation | 265 S.W. 76,165 Ark. 496 |
| Parties | DOVER v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Polk Circuit Court; B. E. Isbell, Judge; affirmed.
Judgment affirmed.
Norwood & Alley, for appellant.
J. S Utley, Attorney General, and John L. Carter, Assistant, for appellee.
Mark Dover prosecutes this appeal to reverse a judgment of conviction against him for the crime of assenting to the reception of a deposit by a bank of which he was director, after having had knowledge of the fact that it was insolvent.
The first assignment of error is that the court erred in not sustaining a demurrer to the indictment. It does not appear from the record that a ruling of the court on the demurrer was asked or obtained, and, under the settled rules of practice of this court, the alleged error cannot be considered on appeal. Kiernan v. Blackwell, 27 Ark. 235; Pratt v. Frazer, 95 Ark. 405 129 S.W. 1088; and Harbottle v. Central Coal & Coke Co., 134 Ark. 254, 203 S.W. 1044. The defendant did, however, file a motion in arrest of judgment. Under our statute (Crawford & Moses' Dig., § 3224), a judgment can only be arrested on the ground that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court. Under this statute every material fact constituting the offense must be alleged in the indictment; but in determining this question the language used will be construed in favor of the validity of the indictment unless such interpretation is contrary to the plain and usual meaning of the words of the indictment. Loudermilk v. State, 110 Ark. 549, 162 S.W. 569.
The body of the indictment is as follows: "The grand jury of Polk County, in the name and by the authority of the State of Arkansas, accuse Mark Dover of the crime of receiving deposits in an insolvent bank, committed as follows:
"The said Mark Dover, in the county and State aforesaid, on the 16th day of October, 1923, being then and there a director in the Bank of Hatfield, a corporation, did unlawfully, knowingly and feloniously permit, connive at and assent to the receipt on deposit in the said Bank of Hatfield, $ 40 in gold, silver and paper money, of the value of $ 40, from Boyd Coleman, the said Mark Dover then and there well knowing at the time that said Bank of Hatfield was insolvent and in a failing condition, against the peace and dignity of the State of Arkansas."
The indictment charges that Mark Dover, as a director in the Bank of Hatfield, a corporation, did, at a certain time and place, assent to the receipt of a deposit in said bank of $ 40 from Boyd Coleman, knowing at the time that the bank was insolvent.
The defendant was indicted under § 697 of Crawford & Moses' Digest. The section reads as follows:
Thus it will be seen that the language of the indictment contains a statement of the facts constituting the offense under the statute in ordinary and concise words and in such manner as to enable a person of common understanding to know what is intended. But it is insisted that the indictment does not charge that the Bank of Hatfield was in fact a bank or engaged in the banking business. We think that this fact is charged by necessary intendment from the language used in the indictment. The corporation of which the defendant was a director is called the Bank of Hatfield, and it is charged that the defendant assented to receiving a deposit of $ 40, knowing at the time that the Bank of Hatfield was insolvent. A bank is usually defined to be an association or corporation whose business it is to receive money on deposit, etc. 7 C. J., p. 473. Therefore we think the indictment meets the requirements of the law under a motion in arrest of judgment. See Wilkin v. State, 121 Ark. 219, 180 S.W. 512, and Collman v. State, 161 Ark. 351, 256 S.W. 357.
A reversal of the judgment is also urged because the evidence is not legally sufficient to support the verdict, and because the court erred in giving certain instructions to the jury. Both of these alleged errors may be disposed of together, for the reason that they are based upon the same state of facts. The facts summarized make it clear that the Bank of Hatfield was a corporation engaged in the banking business in the town of Hatfield, Polk County, Arkansas; that the defendant, Mark Dover, was a director in the bank during the year 1923; that Boyd Coleman deposited $ 40 in the bank on the 16th day of October, 1923, and that the deposit was accepted by Roy Holder, the cashier of the bank; that the defendant, Mark Dover, was not present in the bank at the time; that the bank was insolvent at the time the deposit was received, and had been for some time prior thereto; that the bank suspended business on October 17, 1923, and the State Bank Commissioner took charge of it, and that several witnesses testified that the defendant had told them, some time before the deposit in question was received, that he knew the bank was insolvent.
It is the contention of counsel for the defendant that the instructions complained of are erroneous, and the facts relied upon for a conviction are insufficient in law, because the defendant did not receive the deposit, was not personally present in the bank when it was made, and did not in any wise advise or consent to the cashier's receiving the particular deposit in question.
We have copied above the section of the statute under which the defendant was indicted and convicted. It provides that it shall be a crime for any director of any bank, after knowledge that it is insolvent, to assent to the reception of any deposit. The purpose of this statute is to protect the depositors in a bank by punishing its officers for assenting to the receiving of deposits when the bank is insolvent. By necessary...
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