State v. Buck

• Decision Date: 02 March 1892
• Citation: 18 S.W. 1113,108 Mo. 622
• Parties: STATE v. BUCK.
• Court: Missouri Supreme Court

18 S.W. 1113

108 Mo. 622

STATE v. BUCK.

Supreme Court of Missouri, Division No. 2.

March 2, 1892.

INSOLVENT BANKS — RECEIVING DEPOSITS — CRIMINAL LIABILITY — CHANGE OF VENUE.

1. Rev. St. 1879, § 1350, as amended by Act 1887, makes it unlawful for the officers of any bank, "or the owner, agent, or manager of any private bank or banking institution," to receive deposits knowing such bank to be insolvent. Held, where defendant was indicted as owner and manager of a certain private bank, "the same being a banking institution," that the indictment was good, though the bank of which defendant was owner was not legally organized as a private bank.

2. Rev. St. 1879, § 1860, provides that an order changing the venue in a criminal case "shall specify the cause of removal, and designate the county to which it is removed." Section 1863 requires the order, if made in term, to be "entered on the minutes." Held, where several indictments were found against defendant, and a change of venue granted on indictment "No. 6," the court to which the change was made has no jurisdiction of indictment "No. 2" without the proper order therein "entered on the minutes" of the court where the indictment was found, though there was an agreement by the parties that the "application" for the removal in "No. 6" might apply in the other cases.

Appeal from circuit court, Harrison county; C. H. S. GOODMAN, Judge.

Harvey S. Buck was convicted on an indictment for receiving deposits as owner of the Stewartsville Bank, while knowing the bank to be insolvent, and appeals. Reversed.

J. C. Wilson and L. H. Waters, for appellant. John M. Wood, Atty. Gen., for the State.

MACFARLANE, J.

Defendant was indicted, with Thomas G. McCrosky, in De Kalb county, under section 1350, Rev. St., as amended by the act of 1887, for receiving deposits as private bankers when the Stewartsville Bank, of which they were owners and managers, was insolvent or in failing circumstances. Seven indictments were found against them, numbered from 1 to 7, inclusive. A severance was granted at the April term, 1888, and defendant filed an application for a change of venue in case No. 6 from that county. No order was made on this application until May 22, 1889, when a change of venue was granted to Harrison county. By agreement of the parties, the application filed in case No. 6 was to apply in the other cases against defendant. A transcript of the record and proceedings in case No. 2 was filed in the Harrison county circuit court, December 4, 1889. This transcript included the proceedings which resulted in the change of venue in case No. 6, and the record entry that the application in that case should apply to all other cases. The circuit clerk of De Kalb county certified that the transcript was a true copy of the original proceedings, as the same appeared of record and on file in his office. The indictment copied in the transcript charged "that Harvey S. Buck and Thomas G. McCrosky, late of the county aforesaid, on the 1st day of December, 1887, at the county of De Kalb and state aforesaid, being then and there owners and managers of a private bank, known as the `Stewartsville Bank,' the same being a banking institution, doing business in said county, a certain deposit of money, to-wit, one hundred and fifty dollars, lawful money of the United States, of the value of one hundred and fifty dollars, the money and property of Thomas Allen, unlawfully and feloniously did assent to the taking, having, and receiving on deposit, in said Stewartsville Bank, a private banking institution, after the said Harvey S. Buck and Thomas McCrosky, owners and managers as aforesaid, had knowledge of the fact and well knew that said Stewartsville Bank was then and there in failing circumstances; and so the said Harvey S. Buck and Thomas G. McCrosky, aforesaid, the money aforesaid, to-wit, one hundred and fifty dollars, of the value of one hundred and fifty dollars, the money and property of said Thomas Allen, in manner aforesaid, unlawfully and feloniously did steal, take, and carry away, against the peace and dignity of the state." A motion was made to quash the proceedings on the ground that there was no properly certified copy of the record and proceedings of the De Kalb circuit court in the cause on file in the court. This motion was overruled, and defendants filed a motion to quash the indictment for the reasons, as assigned, that it charged no facts which constitute a crime under the laws of this state. The law does not apply to a private banker, nor to a firm of individuals doing a banking business. It was not charged that defendants, as owners of the bank, were previously insolvent or in failing circumstances. It was not charged that defendants were "private bankers," as defined by statute. This motion was also overruled. The case was tried, defendant was found guilty, and sentenced to two years' imprisonment in the penitentiary, and from the sentence he appealed to this court.

1. The indictment is under section 1350, Rev. St. 1879, as amended by the act of 1887, p. 162. This act was itself amended in Revision 1889, § 3581, after the commission of the offense with which defendant was charged. That section now stands as follows: "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, doing business in this state, shall receive, or assent to the reception of, any deposit of money or other valuable thing in such bank or banking institution, or if any such officer, owner, or agent shall create, or assent to the creation of, any debts or indebtedness by any such bank or banking institution, in consideration or by reason of which indebtedness any money or valuable property shall be received into such bank or banking institution, after he shall have had knowledge of the fact that (such banking institution, or the owner or owners of any such private bank) is insolvent or in failing circumstances, he shall be deemed guilty of larceny, and upon conviction thereof shall be punished in the same manner and to the same extent as is provided by law for stealing the same amount of money deposited or valuable thing: provided, that the failure of any such bank or banking institution shall be prima facie evidence of knowledge on the part of any such...