State v. Bardwell

• Decision Date: 22 April 1895
• Court: Mississippi Supreme Court
• Parties: THE STATE v. W. H. BARDWELL

18 So. 377

72 Miss. 535

THE STATE v. W. H. BARDWELL

Supreme Court of Mississippi

April 22, 1895

FROM the circuit court of Oktibbeha county, HON. NEWNAN CAYCE Judge.

Appeal by the state. The facts are stated in the opinion.

Judgment affirmed.

Frank Johnston, attorney-general, for appellant.

1. There is a large class of criminal acts which violate both federal and state laws, and there is another class as to which the jurisdiction is concurrent except where congress has acted. The federal statute has not made the act in question a criminal offense, therefore defendant is punishable under the state law. See Bish. Crim. L., § 178, and authorities cited. Although congress has regulated the coin and currency and defines offenses against the statutes relative to these, it has not restricted the power of the states. Ib. The law is well settled that there can be two distinct offenses, one against each government. Ib §§ 983, 988.

2. The indictment is in the precise words of the statute, and is sufficient. If it be necessary to aver the insolvency of the bank, it is submitted that the indictment sufficiently does this. It charges that the defendant received the deposit knowing that the bank was insolvent, or having good reason to believe it, without informing the depositor of its insolvent condition. If upon proof it could be shown that the bank was insolvent, then there was an offense, assuming that the statute contemplates insolvency as an essential fact constituting the crime.

3. It is submitted that the statute is not restricted to insolvent banks. If the bank is in a critical condition and of doubtful solvency, presenting good reasons for the belief that it is insolvent, the receipt of deposits by its officials with concealment of its true condition would be a cheat and a violation of the statute. The complexion of the act would not be changed by the ultimate survival of the bank from insolvency.

Orr & Orr and T. B. Carroll, for appellee.

1. The learned district attorney was entrapped into following the language of the statute, and fell. Though not expressly so stated in the statute, it is an essential ingredient of the offense intended to be punished that the bank should in fact be insolvent at the time the deposit is received. It is not sufficient merely to indict in the words of the statute. The indictment must go further, and aver the facts which constitute the criminal act. Anthony v. State, 13 Smed. & M., 264; Ike v. State, 23 Miss. 529; Jessie v. State, 28 Ib., 100; Scott v. State, 31 Ib., 473; Harrington v. State, 54 Ib., 490; Conerly v. State, 66 Ib., 96; Sullivan v. State, 67 Ib., 346; Maxwell v. State, 68 Ib., 339; Ward v. State, 70 Ib., 245; Rawls v. State, Ib., 739.

Bardwell, at the time of receiving the deposit, may have had good reason to believe, and may have believed, that the bank was insolvent, and yet it may have been entirely solvent.

2. Congress having assumed to regulate officers of national banks, and having enacted several severe penal laws for the violation of duty on the part of these officers, has the state the power to interfere by imposing additional penalties?

OPINION

COOPER, C. J.

The appellant was indicted in the circuit court of Oktibbeha county, for that, being cashier of the First National Bank of Starkville, he did, on the third day of July, 1893, receive from one James Foster a certain sum of money on deposit, "then and there knowing, and having good reason to believe, that said bank was then and there insolvent, without then and there, or at any other time previously, informing said James Foster of such insolvent condition of said bank."

The defendant demurred to the indictment, and his demurrer was sustained and the indictment quashed. The state appeals.

The demurrer contained many causes, but those relied on by the appellee here are: 1. That the indictment does not aver that the bank was in fact insolvent when the deposit was received. 2. That the indictment shows the defendant to have been an officer of a national bank organized under the act of congress; that these banks are governmental agencies of the United States, and are therefore not subject to regulation or control by state authority.

The statute under which the indictment was found is as follows: "If the president, manager, cashier, teller, assistant clerk or other employe or agent of any bank or broker's office or establishment conducting the business of receiving on deposit the money or other valuable things of other persons, shall remove or secrete or conceal the assets or effects of such establishment, for the purpose of defrauding any of the creditors of the establishment, or shall receive any deposit knowing, or having good reason to believe, the establishment to be insolvent, without informing the depositor of such condition, on conviction, he shall be imprisoned in the penitentiary not longer than five years." Code 1892, § 1089. The purpose of the statute is to protect depositors against the acts of officers and employes of establishments, first, in withholding by abstracting or concealing the assets, so that they may not be subjected to the demand of creditors; second, in receiving deposits while the establishment is insolvent, and such condition is known to the officer, or such facts are known as to give him good reason to believe the condition of actual insolvency to exist.

The district attorney, in preparing the indictment, has followed the precise language of the statute. What is charged may be true, and yet the defendant may not be guilty of the offense contemplated. The condition of the bank when the deposit was received may have been such that the defendant then had good reason to believe it to be insolvent, and yet, in fact, it may not have been so. It is the receipt of the deposit into an actually...