Ex parte Rickey

• Decision Date: 01 March 1909
• Docket Number: 1,781.
• Citation: 100 P. 134,31 Nev. 82
• Parties: Ex parte RICKEY.
• Court: Nevada Supreme Court

100 P. 134

31 Nev. 82

Ex parte RICKEY.

No. 1,781.

Supreme Court of Nevada

March 1, 1909

Application by T. B. Rickey for writ of habeas corpus for his discharge from custody. Petitioner discharged.

R. C Stoddard, Atty. Gen., L. B. Fowler, Dep. Atty. Gen., P. A McCarran, Dist. Atty. of Nye county, and E. E. Roberts, Dist Atty. of Ormsby county, for the State.

PER CURIAM.

As counsel for the state and petitioner were practically agreed upon the scope of the inquiry upon habeas corpus, we shall not at this time enter into an extended discussion of the question. Suffice it to say that where, as in the petition in this case, it is claimed upon the part of petitioner that the indictment does not allege an offense known to the law, and it is admitted by the state that the true facts are stated in the indictment, it becomes the duty of the court to consider the question thus presented; and, if the facts so alleged and admitted as true and complete do not constitute an offense known to the law, then the defendant is entitled to his discharge. The authorities supporting this view, especially those based on constitutional and statutory provisions like ours, are numerous, and apparently without conflict. As was said in Re Corryell, 22 Cal. 178, quoted in Ex parte Kearny, 55 Cal. 229: "The court derives its jurisdiction from the law, and its jurisdiction extends to such matters as the law declares criminal, and none other; and, when it undertakes to imprison for an offense to which no criminality is attached, it acts beyond its jurisdiction." Chief Baron Gilbert said: "If the commitment be against law as being made by one who had no jurisdiction of the cause, or for a matter for which by law no man ought to be punished the court are to discharge." Bac. Abr., Hab. Corp. B, 10. Lord Hale says: "If it appear by the return of the writ that the party be wrongfully committed, or by one that hath not jurisdiction, or for a cause for which no man ought not to be imprisoned, he shall be discharged or bailed." Hale's H. P. C. 144. See, also, Ex parte Prince, 27 Fla. 196, 9 South. 659, 26 Am. St. Rep. 67; Ex parte Goldman (Cal. App.) 88 P. 819; Ex parte Maier, 103 Cal. 476, 37 P. 402, 42 Am. St. Rep. 129; Ex parte Harrold, 47 Cal. 129; Ex parte McNulty, 77 Cal. 164, 19 P. 237, 11 Am. St. Rep. 257; In re Buell, 3 Dill. 116, Fed. Cas. No. 2,102; In re Farez, 7 Blatchf. 34, Fed. Cas. No. 4,644; 2 Freeman on Judgments (4th Ed.) § 622; 21 Cyc. 302; Hurd on Habeas Corpus (2d Ed.) ch. 6, p. 324; Church on Habeas Corpus (2d Ed.) p. 344 et seq.; Const. of Nevada, art. 1, § 5; Comp. Laws, §§ 3744, 3762.

At the threshold of the consideration of the indictment we are confronted with the following allegations of fact: The indictment charges specifically the physical receipt of the deposit by one John Doe, then being or acting as the receiving teller of the State Bank & Trust Company, a corporation, acting for and on behalf of, and under the authority of, the officers of said bank, and of the said defendant, T. B. Rickey, as an officer, to wit, the president of said company, that at the time of the receipt of the deposit the said bank was insolvent, and that the said defendant then and there knew that the said bank was insolvent. The indictment further charges that the defendant received the deposit as an officer, to wit, as president of said bank by and through the receiving teller as aforesaid. This allegation it is conceded is a conclusion of law based upon the facts above stated. It will therefore appear from the indictment that the defendant is not charged directly with receiving the deposit, in the language of the statute, as in the cases of the other indictments returned against the defendant in the counties of Ormsby and Esmeralda, involved in the cases recently determined. The receiving teller is not charged with knowledge that the bank was insolvent at the time of the receipt by him. Hence no question is or could be presented, nor has any contention been made, that the indictment charges the defendant with being an accessory before the fact. State v. Yetzer, 97 Iowa, 438, 66 N.W. 737. The indictment further presents the case of an incorporated bank receiving the deposit, and not that of an individual banker or partnership receiving a deposit through his or their personal agent. Without going into a more minute analysis of the indictment we will consider it from the position, in reference thereto, taken by counsel in the case. The contention of counsel for the state may be gathered from the following excerpt taken from their opening brief: "We contend that notwithstanding the fact that the Missouri and like statutes make it a crime for an officer of an insolvent bank, to receive or accept, or assent to the reception of, a deposit knowing the bank to be insolvent, under the Nevada statute the receipt of a deposit by an employé of an insolvent bank is the act of the president or other officer, having the authority over the employé; and, although the statute could have been differently framed, it is not necessary that the words 'accept' or 'assent' be therein embodied in order to convict under the same state of facts, as in the Darrah Case, supra. ***"

The Darrah Case, referred to in the brief for the state ( State v. Darrah, 152 Mo. 522, 54 S.W. 226), quotes the constitutional provision of that state which is as follows: "It shall be a crime, the nature and punishment of which shall be prescribed by law, for any president director, manager, cashier or other officer of any banking institution, to assent to the reception of deposits, or the creation of debts by such banking institution, after he shall have had knowledge of the fact that it is insolvent or in failing circumstances; and any such officer, agent or manager shall be individually responsible for such deposits so received, and all such debts so created with his assent." By the statute of Missouri (Ann. St. 1906, § 1945), passed in pursuance of the foregoing constitutional mandate, it is provided: "If any president, director, manager, cashier or other officer of any banking institution, or the owner, agent, or manager of any private bank or banking institution doing business in this state, shall receive or assent to the reception of any deposit of money or other valuable thing in such bank or banking institution, *** after he shall have had knowledge of the fact that such banking institution or the owner or owners of any such private bank is insolvent or in failing circumstances, he shall be deemed guilty of larceny, and upon conviction thereof shall be punished," etc. Counsel for the state in their brief lay stress upon the following instruction, given by the trial court in the Darrah Case, which instruction, upon appeal, was found not to be subject to the objections interposed against it: "If the jury believe from the evidence that on July 10, 1893, the witness Christina Voight did deposit in the Kansas City Safe Deposit & Savings Bank, a banking institution doing business in the state of Missouri, at the county of Jackson, $300, or any part thereof, of the value of $30 or more, lawful money of the United States, of the money and property of the witness Christina Voight, and shall further believe from the evidence that the said deposit was not taken and received by the defendant himself, but was taken and received by some other person, but that such person was then and there in the employ of the said Kansas City Safe Deposit & Savings Bank, and acting under the direction and control of the defendant in said employment, and that such other person had general power and authority from the defendant to receive deposits of money into said bank, and that said bank was then and there in failing circumstances, and the defendant had knowledge that said bank was there and then in failing circumstances, they will find the defendant guilty as charged." The only objections made against this instruction were "that the jury were not therein required to find that the offense charged was committed in Jackson county, nor was it required to find from the evidence that the defendant was an officer of the Kansas City Safe Deposit & Savings Bank." The court, after stating that the instructions should be taken as a whole, that instruction No. 2 cured the objection in question, and, further, that the evidence touching the points of the objection, including the admissions of the defendant himself, was without conflict, remarked: "Under such circumstances the fact that this instruction was not explicit in the particulars mentioned as it might have been could not possibly have injured the defendant." In considering the force of the instruction it must be borne in mind that Darrah was doubtless being prosecuted under an indictment charging him with the crime of assenting to the reception of the deposit. While it does not appear in the opinion what the form of the indictment was, it is indicated from instruction No. 2, which uses this language: "The court instructs the jury that if you shall believe from the evidence that the defendant, *** did then and there unlawfully and feloniously assent to the taking and receiving on deposit in said banking institution, *** you will find the defendant guilty." If it be as contended by counsel for petitioner that under the Missouri statute the assenting to the reception of a deposit, under the conditions named in the statute is a separate and distinct offense from the unlawful reception of such deposit, then instruction No. 3 would be in consonance with the character of the action in which it was given, and would throw little, if any, light on the question now before us for consideration. That the Supreme Court of Missouri holds that the receiving and the assenting to the reception of a...