Ritter v. State

• Citation: 69 S.W. 262,70 Ark. 472
• Parties: RITTER v. STATE
• Decision Date: 14 June 1902
• Court: Arkansas Supreme Court

69 S.W. 262

70 Ark. 472

RITTER v. STATE

Supreme Court of Arkansas

June 14, 1902

Appeal from Greene Circuit Court, FELIX G. TAYLOR, Judge.

Affirmed.

Judgment affirmed.

B. H Crowley and Lamb & Gautney, for appellant.

The indictment is defective. Sand. & H. Dig., § 1710. It should have contained an allegation to the effect that appellant was an officer. 47 Ark. 488; 48 Ark. 76; 12 Ark 608; 29 Ark. 68; 32 Ark. 124; 38 Ark. 519; 43 Ark. 493; Sand. & H. Dig., § 1712. The indictment should have stated all the facts showing the relation between bailer and bailee. 20 P. 171; 26 P. 616; 12 S.E. 1058; 2 & S.W. 223; 39 Am. 189; 6 Grav, 15; 2 N.W. 492; 36 S.E. 169; 42 S.W. 302; 1 Whar. Cr. Law, 1061. The indictment should have made clear and specific what the statute covers in a general way. 6 Ark. 165; 10 Ark 536; 11 Ark. 169; 19 Ark. 613. The evidence of Sullivan and Mosby should have been excluded. 35 S.E. 452; 35 A. 915; 41 A. 144; 34 S.E. 1937; 25 Ark. 89; 56 Ark. 326; 22 Ark. 372; 1 Gray, 83; 35 A. 804; 66 Ark. 110. The court erred in admitting the evidence of Elliot. 109 Mass. 457. Instruction No. 5 was not the law. 2 Ark. 143; 14 Ark. 143; 14 Ark. 530; 14 Ark. 286; 31 Ark. 684; 45 Ark. 263; 66 Ark. 506; 68 Ark. 462. Instructions Nos. 6 and 7 were abstract, and should not have been given. 6 Ark. 161; 7 Ark. 720; 8 Ark. 186; 13 Ark. 317; 13 Ark. 676; 14 Ark. 530; 16 Ark. 651; 23 Ark. 289; 30 Ark. 328; 36 Ark. 284; 42 Ark. 52; 36 Ark. 641, 242, 469; 41 Ark. 282; 37 Ark. 580-593. The meaning, bearing and weight of evidence are for the jury. 55 Ark. 244; 49 Ark. 439; 54 Ark. 621; 46 Ark. 165; 63 Ark. 447; 66 Ark. 506; 52 Ark. 263; 45 Ark. 192; 44 Ark. 115; 34 Ark. 699; 58 Ark. 108; 37 Ark. 580; 31 Ark. 306; 43 Ark. 289; 49 Ark. 147; 23 Ark. 115; 26 S.E. 858; 39 S.W. 940; 37 S.W. 436; 27 S.E. 526; 25 S.E. 388; 40 S.W. 1050. Instruction No. 8 was erroneous. 35 Ark. 585; 38 Ark. 334; 16 Ark. 628; 59 Ark. 143.

Luna & Johnson, and George W. Murphy, Attorney General, for appellee.

A cashier is the chief executive officer of the bank, and has control of all its funds and operations. 10 Wall. 604, 8 Wheat. 338; 64 Barb. 333; 69 Pa.St. 415; 3 Mason, 505; 37 Me. 319; 1 Holmes, 209. The indictment is sufficient. Sand. & H. Dig., §§ 2075, 2090; 58 Ark. 98; 11 Ark. 169. Defects in the indictment were waived by appellant in going to trial, except such defects as were of the substance of the offense. 3 P. 70; 71 Cal. 385; 3 Utah 334. The indictment sufficiently charges appellant. Sand. & H. Dig., § 1712; 37 Ia. 407; 3 Ct. of Cl. 257; 54 Ark. 611; 76 Ga. 557. The indictment charged a public offense, and was good. 108 Mo. 208; 37 Ia. 404; 66 Cal. 344, 136 Ind. 217; 29 Ark. 216; 98 Mo. 482; 19 S.W. 717. Copies of the books of the Laclede Bank were admissable. Greenl. Ev. 115-120; Abbot's Tr. Ev. 64; 45 Ind. 43; 4 Allen, 122; 1 Greenl. Ev. §§ 84. 558. The testimony of Mosby was not prejudicial. 11 S.W. 979. The testimony of Elliot was proper. 61 Ark. 157; 10 S.W. 895; 14 S.W. 185; 64 S.W. 899. The court had a right to assume the appellant was the cashier. 48 Ark. 317; 1 N.E. 805. The instructions were proper. 61 Ark. 308.

BATTLE, J. RIDDICK, J., did not participate.

OPINION

BATTLE, J.

W. H. Ritter was indicted by a grand jury of the Greene circuit court, at the February term, 1901, for embezzlement. The indictment, omitting the formal parts, is as follows: "The said W. H. Ritter on the 14th day of December, 1900, in the county of Greene aforesaid, then and there being over the age of 16 years and being the cashier of the Greene County Bank, an incorporated company, and having in his custody and possession as such cashier as aforesaid, and then and there having come into possession as such cashier as aforesaid, $ 10,000, gold, silver and paper money, lawful money of the United States of America and the property of the Greene County Bank as aforesaid, did unlawfully, feloniously and fraudulently make away with, embezzle and convert to his own use said sum of $ 10,000 as aforesaid, without the consent of the Greene County Bank as aforesaid, against the peace," etc.

He was arraigned, and pleaded not guilty; and was tried and convicted; and his punishment was fixed at one year's imprisonment in the penitentiary. He filed a motion for a new trial, which was overruled, and he appealed.

The Greene County Bank, mentioned in the indictment, was a corporation, organized under the laws of Arkansas, and did a general banking business. The appellant was its cashier from the year 1892 up to January 1, 1902, on or about which time it failed. He was and is over the age of 16 years. His duties as cashier were to take charge of the money and assets of the bank, and to receive funds on deposit; make collections; keep the records of the bank; receive the mail of the bank and answer it; and to keep the statements of other banks to it on file. It was his duty also to keep the cash book, balance book, collection register, remittance register, interest and exchange book, while the assistant cashier kept the journal and depositor's ledger, and made out statements to depositors. He "had in his charge at the time of his election, that is, at the time he took charge as cashier, in cash about $ 16,000, and in bills receivable and scrip, both county and city, and cash accounts with other banks, and collection items, to the amount of $ 80,000 or $ 90,000." After he had been cashier for many years a large portion of the assets of the bank disappeared, and he, failing to account for them satisfactorily, was indicted for their conversion.

1. Appellant's first contention is that the indictment is defective, because it does not allege that he was an officer of the bank. This was unnecessary. A cashier is an officer. Merchants' Bank v. State Bank, 77 U.S. 604, 10 Wall. 604, 19 L.Ed. 1008; Bissell v. First Nat. Bank of Franklin, 69 Pa. 415; Baldwin v. Bank of Newbury, 68 U.S. 234, 1 Wall. 234, 17 L.Ed. 534. An allegation that he was cashier of the bank was equivalent to an averment that he was an officer.

2. Appellant insists that the trial court erred in admitting a copy of the account of the Greene County Bank with the Merchants' Laclede National Bank, of St. Louis, Missouri, as evidence. The last named bank, which for convenience we will call Laclede Bank, was a correspondent in St. Louis, Missouri, of the former bank. J. B. Sullivan was its bookkeeper, and kept an account of the business transactions of the two banks with each other in the books of the Laclede Bank. Many of the items of the account were derived by him from letters of remittance by the Greene County Bank to the latter, which were received, opened, and handed to him by mailing clerks. Other items were for drafts drawn by the former upon the latter, deposits and perhaps money sent by express. The drafts were returned to the former monthly, and the letters of remittance were retained by the latter. From time to time, and frequently, Sullivan, the bookkeeper of the Laclede Bank, furnished the Green County Bank with statements of its account with his bank. He testified that these statements were a correct copy of the account kept by him, except certain changes which were made in them after they were forwarded to the Greene County Bank; and that these changes increased the credits of the last named bank to a considerable amount, which he stated. Upon this testimony and the facts stated, which were proved, the statements forwarded to the Greene County Bank were received as evidence.

The objection to the evidence was specific. There was no objection to its admission on the ground that the bookkeeper did not make entries in the account in the discharge of his duties and in the regular course of his business, and that each entry was not made at or about the time of the transaction thereby recorded. But appellant objected to its admission, in part, because many of the items in the account were for remittances and drafts of the Greene County Bank, of which the letters of remittances and the drafts themselves were the best evidence. This may be true, but they could not have answered the purpose for which the account was adduced. It contained a statement of all the debits and credits of the Greene County Bank, and was a record or history of the business transactions of the two banks with each other, and was admitted for the purpose of showing the indebtedness of one to the other at various times, the funds of one in the hands of the other, and the fraudulent and unauthorized alterations in the same while in the possession of appellant. This the letters of remittance and drafts could not do. The drafts were evidence of their contents, but do not for their payment, as the account was.

The letters of remittance were in the possession of the Laclede Bank, were outside of the state, and secondary evidence was admissable to prove their contents. Burton v. Driggs, 87 U.S. 125, 20 Wall. 125, 134, 22 L.Ed. 299; Shepard v. Giddings, 22 Conn. 282; Eaton v. Campbell, 24 Mass. 10, 7 Pick. 10.

While it is not positively stated, the evidence indicates that all the drafts of the Greene County Bank upon the Laclede Bank that could be found were read as evidence in the trial of appellant, and to this extent the objection to the admission of the account was thereby made of no avail.

Another objection to the admission of the account as evidence was that many of its items were for remittances, and that they were shown by letters received by the Laclede Bank from the Greene County Bank; and that Sullivan, the bookkeeper testified that these letters were received through the mails, and were opened and handed to him by a mail clerk, and that all he knew of what was received from the Greene County Bank he learned from the letters...