Skarda v. State

• Decision Date: 19 April 1915
• Docket Number: 328
• Citation: 175 S.W. 1190,118 Ark. 176
• Parties: SKARDA v. STATE
• Court: Arkansas Supreme Court

175 S.W. 1190

118 Ark. 176

SKARDA v. STATE

No. 328

Supreme Court of Arkansas

April 19, 1915

Appeal from Prairie Circuit Court, Southern District; Eugene Lackford, Judge; reversed.

Judgment reversed and cause remanded.

J G. & C. B. Thweatt and Manning, Emerson & Morris, for appellant.

1. The indictment does not charge any offense under Kirby's Dig., § 1814. It is fatally defective. Penal statutes are strictly construed and the language of the indictments must state facts within the terms of the statute. 90 Ark. 1; 49 So. 615; 107 N.W. 927; 32 A. 617; 57 N.E. 109; 58 Ark 35-38; 50 N.E. 106, etc.

2. There is variance between the indictment and proof. 91 Ark 1; 50 N.E. 106; 13 Ark. 62; 29 Id. 299; 34 Id. 160; 96 Id. 63; 70 Id. 144; 73 Id. 169; 55 Id. 242-389; 62 Id. 516; 102 Id. 513; 60 Id. 141-161; 71 Id. 415; 107 N.E. 927.

3. The court admitted incompetent testimony and refused competent testimony offered. 42 Mo. 242; 74 S.W. 846; 48 Id. 72-77; 98 N.W. 190; 91 Ark. 555-9; 39 Id. 278; 52 Id. 303-9.

4. The court erred in giving and modifying instructions and in refusing instructions requested. 38 P. 296-9.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. The indictment was sufficient to bring appellant within the terms of the statute. 102 Ark. 513-517; 99 Id. 547; 90 Id. 596;102 Id. 651; 64 So. 740; 20 L. R. A. (N. S.) 444-449; 35 L. R. A. 176-182.

2. There is no variance between the indictment and proof. 37 L. R. A. 132; 57 A. S. R. 339-492; 20 L. R. A. (N. S.) 444-448; 115 S.W. 1106-1122.

3. No incompetent testimony was admitted, but, if so, the error was cured by instruction No. 11, as modified. 118 P. 9; Davis v. State, 115 Ark. 566.

4. There is no error in the instructions. 57 A. S. R. 339-402; 92 N.W. 420; 38 P. 298; 54 S.W. 226; 119 P. 30; 20 L. R. A. (N. S.) 444. The cases above state the two rules or methods used by the courts to determine "insolvency" of a bank. Instruction 5 correctly states the law, cases supra, and even if No. 4 improperly defined "debts of the bank," in view of No. 5 stating the test properly no prejudice resulted.

SMITH, J. KIRBY, J., dissents.

OPINION

SMITH, J.

Appellant was convicted for accepting money for deposit in a bank of which he was the cashier when he knew the bank was insolvent.

The prosecution was had under section 1814 of Kirby's Digest, which reads as follows:

"No bank shall accept or receive on deposit, with or without interest, any money, bank bills or notes, or United States treasury notes, gold or silver certificates, or currency, or other notes, bills or drafts, circulating as money or currency, when such bank is insolvent; and any officer, director, cashier, manager, member, party or managing party of any bank who shall knowingly violate the provisions of this section, * * * shall be guilty of a felony.

The indictment alleged that on the 17th day of March, 1913, (appellant), then and there being the cashier of the Bluff City Bank, of DeValls Bluff, Ark., said bank being a corporation organized and doing a banking business under the laws of the State of Arkansas, did unlawfully, willfully, knowingly and feloniously accept and receive on deposit in said bank, the Bluff City Bank, of and from Joe Janet, fifty-five dollars, gold, silver and paper money, said money being then and there accepted and received on deposit in said bank by said defendant, Joe Skarda, the said Bluff City Bank, being then and there insolvent, and the said Joe Skarda being then and there the cashier of said bank, well knowing at the time he so accepted and received on deposit said money as aforesaid that said Bluff City Bank was then and there insolvent. * * *"

The record is a voluminous one, and many questions are discussed in the appellant's brief, but all of the questions which it will be necessary to consider may be arranged under the following topics:

1. Does the indictment charge an offense?

2. Is there a variance between the indictment and the proof?

3. Was error committed in the admission or rejection of testimony?

4. Did the court err in giving or refusing instructions?

It is first insisted that the indictment does not charge the commission of a public offense, in that it does not allege that the money deposited circulated in this jurisdiction as money, and fails to allege that the money so deposited was of any value.

In reply to this it may be said that the indictment does allege the deposit of $ 55 gold, silver and paper money; and such deposit is within the protection of the statute if it is of any value. Fifty-five dollars of gold, silver and paper money, whether current in this jurisdiction or not, necessarily have some value. Morris v. State, 102 Ark. 513, 145 S.W. 213. And if an officer of an insolvent bank knowingly receives such money on deposit he can not defend by showing that the money so received was not current in this country. Nearly all of the States now have laws more or less similar to our statute on this subject, and the courts of all the States, in construing their respective statutes, say they are designed for the protection of depositors, and our own court has said that a special deposit, as well as a general one, is within the protection of this statute. State v. Smith, 91 Ark. 1, 120 S.W. 156.

It is also urged that the indictment is defective in that it fails to allege that appellant received the money as cashier. Support for this position is found in the case of State v. Winstandley, 154 Ind. 443, 57 N.E. 109. In that case an indictment very similar to the one in the present case was held insufficient for the reason stated. But a contrary view has already been taken by this court in the cases of Morris v. State, supra, and Davey v. State, 99 Ark. 547, 139 S.W. 629. In the Morris case, supra, it was said:

"A corporation can only act through its agents. The allegations of the indictment were sufficient to charge that the bank had received and accepted the deposit while insolvent, and that the appellant, who was president of the bank, and who acted for it in receiving and accepting the money on deposit, knew at the time the bank was insolvent, and therefore violated the provisions of the statute in thus accepting the money on deposit.

"It was unnecessary for the indictment to charge in specific terms that appellant was an officer of the bank. He was designated in the indictment as president of the bank, which was sufficient to show that he was an officer of the bank. The allegations of the indictment were amply sufficient to show that the bank, through its duly constituted agent, accepted and received the deposit, being at the time insolvent, and that the appellant, being at the time president, and therefore an officer of the bank, and knowing of its insolvency, accepted and received the deposit. Everything necessary to constitute the offense charged was stated."

The indictment here was substantially in the form of the indictment which was approved in the two cases last cited.

This question was recently before the Supreme Court of the State of Mississippi, and that court refused to follow the Indiana case. State v. Taylor, 106 Miss. 850, 64 So. 740.

Appellant also insists that the proof fails to show that he was the cashier of the bank at the time the alleged deposit was made, and he says that, upon the contrary, the proof shows that he was not the cashier at that time, and that there was therefore a failure of proof to sustain a material allegation of the indictment. The proof on the part of the defense was that appellant had been cashier of the bank for a number of years, but had been superseded by his assistant. Yet there was proof from which the jury no doubt found, and which was sufficient to sustain the finding, that appellant continued to remain in t h e bank and to discharge, ostensibly, his customary duties there. This change in the cashier appears to have been made at the direction of the managing officer of one of the defunct bank's correspondents, and while after the change was made, there was a limitation upon the authority which appellant had previously exercised, at least, so far as the defunct bank's dealings with this correspondent bank were concerned, yet, as has been said, appellant continued in the performance of his former duties.

Upon this question the court gave the following instruction:

"You are instructed that one who has been elected and made cashier of a bank and remains in the bank and holds himself out to the public as cashier of the bank and is held out by the bank as its cashier for the purpose of receiving deposits is under the law under which this defendant is being tried the cashier of the bank."

We think no error was committed in giving this instruction.

It is insisted that the proof failed to show the bank was insolvent at the time it closed its doors; and the contention is also made that incompetent evidence was admitted upon the question of the bank's insolvency and of appellant's knowledge of that fact.

The evidence is very voluminous and conflicting, and we shall not undertake to state the evidence in regard to the various transactions relating to these questions. We shall merely state the general principles which should govern trial courts upon such issues. To sustain the conviction the State must not only show that the bank is insolvent, but must further show that the officer receiving the deposit has knowledge of that fact. It would be very unusual if these facts could be established by proof of a single transaction. It is almost certain that these facts can be established only by an examination into the affairs generally of the bank. It is therefore, competent and proper for the State to show the nature and value of the bank's...