Murphy v. the People

• Decision Date: 28 February 1886
• Parties: WILLIAM S. MURPHYv.THE PEOPLE, ETC.
• Court: United States Appellate Court of Illinois

19 Ill.App. 125

19 Bradw. 125

WILLIAM S. MURPHY

v.THE PEOPLE, ETC.

Appellate Court of Illinois, Fourth District.

February Term, 1886.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Jackson county; the Hon. DAVID J. BAKER, Judge, presiding. Opinion filed July 12, 1886.

This is a prosecution under the statute passed in 1879 entitled “An act for the protection of bank depositors” which is in the following language: “That if any banker or broker, or person or persons doing a banking business, shall receive from any person or persons, firm, company or corporation, or from any agent thereof not indebted to said banker or broker, banking company or incorporated bank, any money, check, draft, bill of exchange, stocks, bonds or other valuable thing which is transferable by delivery, when at the time of receiving such deposit, said banker, broker, banking company or incorporated bank is insolvent, whereby the deposit so made shall be lost to the depositor, said banker, broker or officer so receiving such deposit, shall be deemed guilty of embezzlement, and upon conviction thereof shall be fined in a sum double the amount of the sum so embezzled and fraudulently taken, and in addition thereto may be imprisoned in the State penitentiary not less than one, or more than three years. The failure, suspension or involuntary liquidation of the banker, broker, banking company, or incorporated bank within thirty days from and after the time of receiving such deposit, shall be prima facie evidence of an intent to defraud, on the part of such banker, broker or officer of such banking company or incorporated bank.” Session Laws 1879, page 113, § 1. The indictment contains two counts. The first charges that William S. Murphy on the 16th of July, 1884, at and within said county, then and there being a banker, did then and there receive on deposit, from one Samuel Desbarger, the sum of two hundred and fifty dollars in money, said Samuel Desbarger not then and there being indebted to said William S. Murphy, banker. The said William S. Murphy, banker, at the time of receiving such deposit, was insolvent, whereby the said deposit, the said sum of two hundred and fifty dollars in money, was lost to said Samuel Desbarger, said depositor, and the same then and there feloniously and fraudulently was converted to the use of him, said William S. Murphy, banker. Second count: that, William S. Murphy, on the 16th day of July, 1884, at and within said county, then and there doing a banking business, did then and there unlawfully, fraudulently and feloniously receive on deposit from one Samuel Desbarger the sum of two hundred and fifty dollars in money, said Samuel Desbarger not then and there being indebted to said William S. Murphy. Said William S. Murphy at the time of receiving said deposit, said sum of two hundred and fifty dollars in money, was insolvent, whereby the said deposit of two hundred and fifty dollars in money was lost to the said Samuel Desbarger, depositor. This indictment was returned at the August term, 1884. At the December term, 1884, there was a motion to quash the indictment which was overruled. At this term of the court there was a plea of not guilty, and a trial resulting in a failure of the jury to agree. After the jury was discharged defendant applied for a change of venue on account of the prejudice of the people. The attorneys for the people denied the facts set forth in the petition and numerous affidavits both in support of the petition and denial were filed. The court overruled the motion.

At the August term, 1885, a jury was impaneled and a trial had, resulting in a verdict of guilty and fixing the punishment by fine in the sum of $487.40. It appears from an affidavit by the defendant that during the argument of the case to the jury the judge called a member of the bar to the bench and retired from the bench and court room and was absent perhaps fifteen minutes.

Motion for new trial being overruled the case comes to this court by writ of error.

Errors assigned as follows:

1st. The said circuit court erred in overruling the motion to quash the indictment.

2d. The said circuit court erred in denying and refusing the application for a change of venue.

3d. The said circuit court erred in overruling the motion for a new trial and in rendering a judgment upon the said verdict.

4th. The circuit court erred in leaving the bench and court room, and in leaving a lawyer to occupy the bench during his absence and while the case was being finally argued to the jury. 5th. The circuit court erred in admitting improper evidence to go to the jury on the part of the people.

6th. The circuit court erred in giving improper instructions to the jury on the part of the people.

7th. The circuit court erred in refusing proper instructions asked to be given on the part of the defendant.

8th. The circuit court erred in modifying proper instructions asked to be given on the part of the defendant.

9th. The circuit court erred in refusing defendant's challenge to jurors and to the panel.

The following instructions with others were given at the instance of the people and were excepted to by the defendant:

4th. If you believe beyond a reasonable doubt from the evidence that the defendant was engaged in the business of banking, and in such business received on deposit with intent to defraud, from Samuel Desbarger, the sum of $243.70 or any other sum, that at the time such deposit was made said Desbarger was not indebted to defendant, that at the time of receiving said deposit the defendant was insolvent and knew himself to be so, that said deposit or any portion of it was lost to Desbarger, then you should find the defendant guilty.

5th. The court instructs the jury that a depositor of money in a bank is a person who places his money therein for safe keeping.

6th. The court instructs you that while the allegation of insolvency of the defendant at the time of the receipt of deposit of Desbarger is a material allegation, yet if you further believe beyond a reasonable doubt from the evidence that the defendant received said deposit within thirty days before the time of his suspension, then the burden of proof is on the defendant to show that he was solvent at the time of receiving said deposit and that he did not fraudulently convert the same to his own use.

9th. It is not necessary that the prosecution should prove by direct and positive evidence that the defendant was insolvent on the 16th day of July, 1884, or that he knew that he was insolvent, but it is sufficient if you are satisfied beyond a reasonable doubt from all the circumstances in evidence in the case that he was insolvent at that time, and took and converted the deposit with fraudulent intent.

10th. It is your province as jurors to say under your oaths, from the evidence, whether or not the defendant William S. Murphy was insolvent at the time he received the deposit of $243.70 from Samuel Desbarger, on the 16th of July, 1884, at the time of his suspension.

The court was asked to give the following instructions on behalf of the defendant, but refused to do so:

9th. You can not find the defendant guilty unless you are satisfied from the evidence, beyond a reasonable doubt, that at the time of receiving the deposit in the indictment herein mentioned, the defendant was not only insolvent, but also that he knew at the time of receiving such deposit that he was insolvent.

14th. The court instructs you that if you believe from the evidence that the defendant, at the time he received the deposit of Desbarger (if the evidence shows that he did receive it), had sufficient property, real and personal, if realized upon, to pay all his liabilities, then in law he was solvent; and if you find from the evidence that defendant was solvent at the time of receiving such deposit, or that he honestly and in good faith believed he was solvent, and that he was the owner of sufficient property to induce that belief in a reasonable mind, then you should find the defendant not guilty.

19th. In this case it is immaterial as to whether or not the defendant made loans to his brother or other relatives, or whether such loans, if any such are shown, are sufficiently secured or not, except so far as such fact may tend to show what was the value of so much of defendant's property and assets as was made up of such loans; nor will the jury consider any evidence as to what was the purchase price of the property mortgaged as security for such loans, except so far as you may believe that such fact may tend to show the value of such property; nor should the jury consider any question as to where the money was obtained to purchase such property. 20th. A quit-claim deed is as effectual in law to convey the title to land therein mentioned as would be a deed with full covenants of warranty if the party making such quit-claim deed had the title when the deed was made; and although portions of the land owned by defendant or by those who mortgaged land to him as...