State v. Buck

• Decision Date: 27 February 1894
• Parties: The State v. Buck, Appellant
• Court: Missouri Supreme Court

25 S.W. 573

120 Mo. 479

The State v. Buck, Appellant

Supreme Court of Missouri, Second Division

February 27, 1894

Appeal from Harrison Circuit Court. -- Hon. C. H. S. Goodman, Judge.

Reversed and remanded.

L. H Waters for appellant.

(1) The circuit court of Harrison county had no jurisdiction of the cause. State v. Buck, 108 Mo. 623. (2) The indictment charges no crime. It is idle to speak of the insolvency of a thing which can neither contract debt purchase, hold or convey property, sue or be sued. (3) The court erred in giving instruction number 3, to the effect that the failure of the banking institution in this case is prima facie evidence of the knowledge on the part of the owner or manager that the same was in failing circumstances on November 8, 1887. Said instruction violates the constitutional guaranty "that the right to trial by jury, as heretofore enjoyed, shall remain inviolate." Cooley on Const. Lim., p. 309; Cummings v. State, 4 Wall. 328; Wynehamer v. People, 13 N.Y. 446; San Mateo v. Railroad, 116 U.S. 138; State v Beswick, 13 R. I. 211; State v. Divine, 4 S.E. (N. C.) 477; Clark v. Mitchell, 64 Mo. 580.

J. C. Wilson and Casteel & Haynes also for appellant.

(1) The circuit court of Harrison county had no jurisdiction of the cause. First. While the transcript from DeKalb county recites that the indictment number 1 in this case was returned, and gives a copy of it, no further reference to, or mention of, case in indictment number 1 is made therein, but the transcript is made in number 4. Second. The transcript was not sufficient to confer jurisdiction. Third. The transcript was not certified as required by law. R. S. 1889, sec. 4166. Fourth. By the term "proceedings" is meant the orders in a cause. Smith v. Jeffries, 25 Ind. 376. Fifth. The court had no jurisdiction unless the transcript conferred it. Snitzer v. Downing, 80 Mo. 588; Bray v. Marshall, 66 Mo. 122; Henderson v. Henderson, 55 Mo. 534; State v. Buck, 108 Mo. 629. (2) No crime is charged in the indictment. First. "Incorporated banks" and "private bankers" are alone authorized to carry on a banking business in this state. R. S. 1879, secs. 901, 921. Second. The act of 1877 had no application to "private bankers." State v. Kelsey, 89 Mo. 623. Third. The term "private banker" was defined and his duties, with respect to the commencement and conduct of the business, were prescribed by statute. R. S. 1879, secs. 921, 922. Fourth. The amendment of 1887 failed to extend the provisions of the act of 1877, so far as to embrace a "private banker." Laws, 1887, p. 162, sec. 1. Fifth. The act of 1889 is equivalent to a legislative declaration that a "private banker" was not within the provisions of the act of 1887. R. S. 1889, sec. 3581; State v. Webster, 77 Mo. 566. Sixth. The liability of a "private banker" is not limited to the amount invested in the business, but is just the same as that of partners conducting any other business. State v. Kelsey, 89 Mo. 623. Seventh. The court erred in admitting the evidence of King and Coberly, showing that the bank was indebted to them on the eighth of November, 1887, and sixth of December, 1887, when the bank failed. Eighth. The court erred in admitting in evidence, over the objection of defendant, the books of the bank, and allowing witness Herndon to testify from the same. Ninth. The "Stewartsville Bank" had no legal existence. It could neither sue nor be sued, and an allegation that "it" was in failing circumstances or insolvent, could have no legal significance, and the act of 1887 can only apply to such banking institutions as have a legal existence and may be insolvent or in failing circumstances, and can not be extended by implication. Laws, 1887, p. 162, sec. 1; Sutherland on Stat. Const., secs. 349, 350, 351. (3) The indictment does not allege that H. S. Buck and T. G. McCrosky were in failing circumstances. If necessary to be proven it should have been alleged. (4) The indictment does not charge a larceny. State v. Herrell, 97 Mo. 105; State v. Meyers, 99 Mo. 107. (5) The court erred in giving instructions numbers 1, 2, 3 and 4, on behalf of the state. The first assumed that there was such a thing as a "private bank," and that such a bank could be in failing circumstances. (6) The instructions given in the case were conflicting and misleading. (7) The court erred in refusing to give defendant's instructions numbers 1, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19. (8) The indictment charged that the money deposited was lawful money of the United States, and the proof did not sustain that allegation. Lawful money is that which is a legal tender in payment of debts. R. & L. Law Dict., "Lawful Money;" 25 Cal. 564. (9) The court erred in overruling defendant's motion to quash the indictment. (10) The court erred in overruling defendant's motion as to sufficiency of transcript, and objecting to being put upon trial while former conviction was in force.

R. F. Walker, Attorney General, for the state.

(1) The record shows that the circuit court had jurisdiction of the case. (2) The indictment is sufficient. R. S. 1889, sec. 3581; State v. Buck, 108 Mo. 626. (3) Instruction number 3, complained of by appellant, properly declared the law.

OPINION

Burgess, J.

Defendant and Thomas G. McCrosky were indicted in the circuit court of DeKalb county for receiving a deposit of $ 60 as private bankers in the "Stewartsville Bank," of which they were owners and managers, knowing at the time it was so received that the bank was insolvent or in failing circumstances. The indictment is under section 1350, Revised Statutes, 1879, as amended by the act of 1887. At the April term, 1888, a severance was granted defendant. He then filed his application for a change of venue from said county. No action was taken on this motion until May 22, 1889, when a change of venue was ordered to Harrison county. By agreement between the parties the one application was to apply to all the indictments pending against defendant of which there were seven or nine. The motion for the change of venue containing the agreement is copied into and made a part of the record in this case. On the seventh day of August, 1889, a transcript of the record and proceedings in case number one (that being the number of this case), was filed in the office of the clerk of the circuit court of Harrison county.

The indictment is in two counts, and, omitting the formal parts, is as follows:

"The grand jurors for the state of Missouri summoned from the body of DeKalb county, impaneled, charged and sworn upon their oaths present that Harvey S. Buck and Thomas G. McCrosky late of the county aforesaid, on the eighth day of November, A. D. 1887, at the county of DeKalb, state aforesaid, being then and there owners and managers of a private bank known as Stewartsville bank, the same being a banking institution doing business in said county, a certain deposit of money, to wit, $ 60, lawful money of the United States, of the value of $ 60, the money and property of Thos. H. Lake, unlawfully and feloniously did then and there take, have and receive on deposit in said Stewartsville bank, a private banking institution, after they, the said Harvey S. Buck and Thomas G. McCrosky, owners and managers 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, $ 60, of the value of $ 60, the money and property of the said Thomas H. Lake, in manner aforesaid, unlawfully and feloniously did take, steal and carry away, against the peace and dignity of the state.

"The grand jury, for the county and state aforesaid, summoned, impaneled, charged and sworn as aforesaid, upon their oaths aforesaid, further present that Harvey S. Buck and Thomas G. McCrosky, late of the county aforesaid, on the eighth day of November, A. D. 1887, at the county of DeKalb, 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, $ 60, lawful money of the United States, of the value of $ 60, the money and property of Thomas H. Lake, unlawfully and feloniously did assent to the taking, having and receiving on deposit in said Stewartsville bank, a private banking institution, after they, Harvey S. Buck and Thomas G. McCrosky, owners and managers as aforesaid, had knowledge of the fact and well knew that 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, $ 60, of the value of $ 60, the money and property of the said Thomas H. Lake, in manner aforesaid, unlawfully and feloniously did steal, take and carry away, against the peace and dignity of the state."

On May 19, 1891, defendant filed his motion to quash the indictment which was overruled. At an adjournment of the same term held during the month of August, the defendant filed his written objections to proceeding to trial in the cause which objections are as follows:

"Because the said defendant heretofore, to wit, on the eighteenth day of September, 1890, was, in the Harrison county, Missouri circuit court, convicted of receiving money on deposit as a private banker at Stewartsville, in the county of DeKalb, the property and money of Thomas Allen, and was, on the eighteenth day of September, 1890, by the said court, sentenced to a term of two years in the penitentiary of the state of Missouri, and that said conviction and sentence is in full force and standing against him, and, therefore, he should not be put upon his trial before the same is...