Fleming v. State

• Decision Date: 23 June 1911
• Citation: 139 S.W. 598
• Parties: FLEMING v. STATE.
• Court: Texas Court of Criminal Appeals

Page 598

139 S.W. 598

FLEMING v. STATE.

Court of Criminal Appeals of Texas.

June 23, 1911.

Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.

Fred Fleming was convicted of crime, and he appeals. Reversed and remanded.

Lewis T. Carpenter and Crawford, Muse & Allen, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The article of the Penal Code under which appellant was indicted is the act of the Twenty-Fifth Legislature, found at page 130, and reads as follows:

"Be it enacted by the Legislature of the state of Texas: That 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, or the president, vice president, secretary, treasurer, director, or agent, of any trust company or institution, doing business in this state, shall receive or assent to the reception of any deposit of money or other valuable thing into such bank or banking institution, or trust company or institution, or if any such officer, owner, or agent, of such bank or banking institution, or if any president, vice president, secretary, treasurer, director or agent, of such trust company or institution, shall create or assent to the creation of any debt, debts, or indebtedness, in consideration of or by reason of which indebtedness any money or valuable property shall be received into such bank or banking institution, or trust company or institution, after he shall have had knowledge of the fact that such bank, banking institution, or trust company or institution, or the owner or owners of any such private bank, is insolvent or in failing circumstances, he shall be deemed guilty of a felony, and upon conviction thereof shall be punished by confinement in the penitentiary for a term of not less than two nor more than ten years; provided, that the failure of any such bank or banking institution, or trust company or institution, shall be prima facie evidence of knowledge on the part of any such officer or person that the same was insolvent or in failing circumstances when the money or property was received on deposit."

Under this statute it is necessary that the indictment should charge the particular named officer with a violation of the statute, and that such officer shall receive or shall assent to the reception of a deposit of money or other valuable thing into the bank of which he is an officer, knowing at the time of the deposit that the bank was insolvent or in failing circumstances. In order to constitute an officer of the bank guilty under this law, it must be alleged and proved that the bank in which the deposit was received was at the time of the reception insolvent or in failing circumstances. It must be further alleged and proved that the accused knew that such bank was then insolvent or in failing circumstances. It must be further alleged and proved that the accused, either in person received the deposit, or that he assented to its reception, with the full knowledge on his part that the bank was insolvent at the time of the reception. This statute carries with it the distinct idea that the reception of such deposit must be attended with such circumstances as indicate that the accused received the deposit when there was no intention to return the money, or for the purpose of placing the deposit in such condition that the depositor could not recover the deposited property. If the accused was not aware of the insolvency of the bank or that it was in failing circumstances, he could not be brought within the purview of this statute. The bank, therefore, must be, first, insolvent or in failing circumstances, and, second, that the accused had knowledge of that condition of affairs. The statute carries the further idea that the deposit creates the relation of the debtor and creditor. If this relation was not created, so far as this indictment was concerned, then it could not be a deposit.

The indictment, omitting formal parts, charges that appellant was president of the Western Bank & Trust Company, "the same being then and there a corporation organized and incorporated under the laws of the state of Texas, to do and then and there, amongst other things, doing a banking business in the aforesaid county and state of Texas, and the said Fred Fleming, as president of said company aforesaid, did then and there unlawfully receive and assent to the reception into the banking department of said Western Bank & Trust Company aforesaid, as a deposit, valuable property, to wit, a bank check on the Commonwealth National Bank of Dallas, Tex., in the sum of thirteen hundred and seventy-eight dollars and forty-seven cents ($1,378.47), payable to the order of Sides & McAlister, and made by Boedeker Mfg. Co. (meaning thereby Boedeker Manufacturing Company), by J. A. Smith, treasurer; said check having been then and there deposited as aforesaid by the said Sides & McAlister, by the said J. M. Sides of said firm; said check then and there so deposited being then and there of the value of thirteen hundred and seventy-eight dollars and forty-seven cents ($1,378.47); the said Fred Fleming, president of the said Western Bank & Trust Company as aforesaid, having assented to and received said check as aforesaid, and the value and amount thereof aforesaid, to be and it was then and there deposited to the cash and checking account of said firm of Sides & McAlister, in said company; that the said Fred Fleming, as president aforesaid of the said Western Bank & Trust Company aforesaid, did unlawfully receive and assent to the reception into the banking department of said Western Bank & Trust Company said check as aforesaid, after said Western Bank & Trust Company was in failing circumstances and insolvent, and after he, the said Fred Fleming, as president aforesaid, knew that the said Western Bank & Trust Company was in failing circumstances and insolvent, and after the banking department of said Western Bank & Trust Company was in failing circumstances and insolvent, and after he, the said Fred Fleming, president aforesaid, knew that the said banking department of said Western Bank & Trust Company was in failing circumstances and insolvent, contrary," etc.

There was another similar count in the indictment, also submitted to the jury, which we deem unnecessary to set out. This indictment was attacked upon various grounds, two of which we will notice: First, that it did not allege affirmatively that the bank was insolvent at the time, of the reception of the deposit, and, second, that the allegations are not sufficient to show and do not aver that the check, payable "to the order of Sides & McAlister," was in such condition as to become a deposit in the bank to their credit, and that under the allegations of the indictment said check was not transferred as a deposit to the bank. We are of opinion both propositions are sound. The indictment charges that appellant received the check, "payable to the order of Sides & McAlister," after said bank was in failing circumstances and insolvent. This is not an allegation that the bank was at the time insolvent, nor is there any allegation that the bank was then insolvent. The reception and deposit "after" a bank is insolvent or in failing circumstances is not an allegation that the bank was insolvent at the time of its reception. Under the statute and the authorities relating to similar statutes in other states, as well as in Texas, to constitute the offense sought to be charged, it is essential, that the banking institution be in failing circumstances and insolvent at the very time the deposit is received, and that the person sought to be held amenable must have knowledge of the fact that the bank was then insolvent and in failing circumstances when he assented to or received the deposit.

It was contended by the state that this indictment follows that in the Roby Case, 41 Tex. Cr. R. 152, 51 S. W. 1114, and reference is made to that case as authority for upholding this indictment. That contention is not correct. The indictment in the Roby Case was held to be vicious, the judgment was reversed, and the prosecution dismissed, because the indictment was not sufficient; but the opinion in that case did not discuss the question here raised. An inspection of the opinion will show these particular matters were not referred to nor discussed. It will be understood by the bench and the profession, at least ought to be, that a case is authority only on questions discussed and decided. An inspection of the authorities where such indictments are set out, framed under similar statutes, will show that the defects here pointed out were not to be found in the indictments in those cases. In fact, so far as we have been able to ascertain, in the time we have been able to look up the matter, all of those cases contain specific allegations that the bank was insolvent at the time the accused received or assented to the reception of the deposit. See Parrish v. Commonwealth, 136 Ky. 77, 123 S. W. 344; State v. Wells, 134 Mo. 238, 35 S. W. 616.

It is a rule in criminal pleading, not only so under criminal law generally, but expressly so under our statute, that everything should be stated in an indictment which is necessary to be proved, but that which is not necessary to be proved need not be stated. See Code of Criminal Procedure 1895, art. 440. It is laid down by Mr. Bishop that "the omission of any fact or circumstance to the constitution of the offense — in other words, made by law essential to the punishment — renders the indictment bad." 2 Bish. Crim. Proc. (3d Ed.) § 325. It has been held in this state that an indictment must set forth by proper and certain averments all the facts necessary to constitute a complete offense. Vaughan v. State, 9 Tex. App. 567; Gaddy v. State, 8 Tex. App. 127; White v. State, 3 Tex. App. 605.

In Kerry v. State, 17 Tex. App. 185, 50 Am. Rep. 122,...