State v. Burlingame

• Decision Date: 21 November 1898
• Citation: 48 S.W. 72,146 Mo. 207
• Parties: STATE v. BURLINGAME.
• Court: Missouri Supreme Court

48 S.W. 72

146 Mo. 207

STATE v. BURLINGAME.

Supreme Court of Missouri, Division No. 2.

November 21, 1898.

CRIMINAL LAW — INSOLVENT BANKS — RECEIVING DEPOSITS — FORMER ACQUITTAL — SEPARATE OFFENSES — DISCHARGE — CONTINUANCES — EVIDENCE — STATEMENTS BY WIFE — VARIANCE — PANICS — INSTRUCTIONS.

1. The acquittal of a bank officer for receiving a deposit while the bank was insolvent is not a bar to a prosecution for receiving one thereafter from a different individual, since each would be a separate and distinct offense.

2. Under Rev. St. 1889, § 4222, entitling a person indicted and committed to prison to be discharged if not tried before the end of the second term of the court having jurisdiction, after the indictment found, a prisoner would not be entitled to such discharge where the state had nol pros'd two indictments with reference to the same offense previous to the indictment under which he was put on trial, since there should have been two continuances under the last indictment to have authorized such discharge.

3. On a prosecution for receiving a deposit when the bank was insolvent, the statement of accused's wife, over his objection, made in his presence and in the presence of a depositor, that another stockholder had received half the benefit of the failure and ought to put up something, is inadmissible, since the wife could not testify against her husband without his consent.

4. Where an accused was indicted for receiving a deposit in the "Bank of Commerce," then insolvent, it was not error to receive in evidence a certificate of incorporation of the "Bank of Commerce, Springfield, Mo.," since the latter words are only descriptive of the bank's place of location.

5. The state, over accused's objection, on a prosecution for receiving a deposit when the bank was insolvent, was permitted to introduce conveyances made by debtors of the bank shortly after the deposit was received. Held error, as accused was not shown to be in any way interested therein.

6. Evidence as to deposits made previously to the one in controversy by other parties would be inadmissible, as each deposit would be a separate and distinct offense.

7. It is not error to exclude evidence, offered by accused on a trial for receiving a deposit when the bank was insolvent, as to a panic in banking circles, resulting in the failure of many banks about the time of the failure of the bank in question, since the fact that the failure was produced by a financial panic was no excuse for receiving money knowing the bank to be insolvent.

8. Where an instruction has been given at the request of a party, it is not error to refuse such party another instruction presenting the same question.

9. An instruction that the jury should consider evidence admitted, as to the receiving of other deposits, for the sole purpose of showing knowledge by accused that the bank was receiving deposits, was erroneous, such evidence being inadmissible for any purpose.

Appeal from circuit court, Jasper county; Joseph D. Perkins, Judge.

T. E. Burlingame was convicted of receiving a deposit into an insolvent bank, and he appeals. Reversed.

Wm. B. Skinner, for appellant. Edward C. Crow, Atty. Gen., and Sam. B. Jeffries, Asst. Atty. Gen., for the State.

BURGESS, J.

Defendant was indicted in the criminal court of Greene county for receiving from Graham & Son, a firm doing business in the city of Springfield, a deposit of $260, in money, into the Bank of Commerce, located in said county, of which he was at the time president, knowing at the time that the bank was insolvent or in failing circumstances. The indictment is in two counts, in the first of which defendant is charged with having received the deposit as president of the bank, and in the second count with assenting thereto knowing at the time that the bank was insolvent and in failing circumstances. At the July term, 1896, of said court, on application of defendant, the venue of said cause was changed to the circuit court of Jasper county. After the case had been transferred to the Jasper county circuit court, and on the 12th day of July, 1897, the defendant filed his plea in bar to the prosecution under the indictment herein, and asked to be discharged. The plea in bar was based upon the fact that defendant had, upon two separate occasions, prior to the finding of this indictment, been indicted, tried, and acquitted upon a similar charge for receiving money on deposit in said bank while the same was in a failing condition, and that, inasmuch as the crime of receiving money on deposit under circumstances such as are found in this case was a continuing offense, his having been previously tried and acquitted worked a complete defense to any further prosecution.

The prosecuting attorney, on behalf of the state, filed a demurrer to the plea in bar, which was by the court sustained. The defendant then filed a motion to be discharged, upon the ground that more than three terms of court had passed upon which the case was continued, and that said continuance was had at the instance of the state, and not at the instance of the defendant. There had been no continuance by the state of this case, but the continuances by the state relied upon by defendant as entitling him to his discharge were under other indictments for the same offense, which had been nolled by the state. This motion was overruled.

Before the case was submitted to the jury the state entered a nolle prosequi to the second count in the indictment. Under the evidence and instructions defendant was found guilty under the first count in the indictment, and his punishment fixed at five years' imprisonment in the penitentiary. He appealed.

The evidence showed that defendant was one of the original incorporators of the Bank of Commerce at Springfield, Mo., which commenced business on the 1st day of October, 1890, and from the time of its organization was its president and one of its directors; that on the 7th day of July, 1893, he received on deposit in said bank from Graham & Son, a firm doing business in said city, the sum of $260, knowing at the time that the bank was insolvent and in failing circumstances; that the bank closed its doors and ceased to do business on the 11th day of July, 1893.

The court, at the request of the state, gave the following instructions, to wit:

"(1) If you find from the evidence that the Bank of Commerce was a banking institution, and that the defendant was its president, and if you further find from the evidence that said Bank of Commerce failed on the 11th day of July, 1893, then such failure on the 11th day of July, 1893, is prima facie evidence that said bank was insolvent and in failing circumstances on the 6th day of July, 1893, and also prima facie evidence that defendant, as its president, had knowledge at said dates that said bank was insolvent and in failing circumstances. Prima facie evidence of a fact is such as establishes the fact, and, unless rebutted or explained by the evidence, becomes conclusive, and is to be considered by you as fully proved. A bank is insolvent and in failing circumstances when it cannot be reasonably expected to meet and pay, in money, the usual and ordinary demands that are reasonably liable to be made upon it; and this is so, notwithstanding you may believe from the evidence that the debtors of the bank had property sufficient to pay off the liabilities of said bank.

"(2) If you find from the evidence that the Bank of Commerce was a banking institution, and that the defendant was its president, and that on the 6th day of July, 1893, said bank was insolvent and in failing circumstances, and that the defendant, at the county of Greene and state of Missouri, received $260 in money, or any other sum of money or deposit, the same being of the value of $30 or more, of the property of Graham & Son, a firm composed of F. P. Graham and Geo. H. Graham, and that the defendant at the time had knowledge that said bank was insolvent and in failing circumstances, then you should find the defendant guilty, as charged in the first count in the indictment, and assess his punishment at imprisonment in the state penitentiary for a term of not less than two, nor more than five, years.

"(3) If you have a reasonable doubt as to the guilt of the defendant, you will acquit him, but such a doubt, to authorize an acquittal on that ground alone, should be a substantial doubt, arising from the testimony in the case, and not a mere possibility of the innocence of the defendant.

"(4) You are the sole judges of the credibility of the witnesses and the weight of their testimony, and, in determining the credit of a witness and the weight to be given his testimony, you may take into consideration his demeanor upon the witness stand, his bias or prejudice, if any, as shown by the evidence, his relation to the case or the parties, and his interest in the result of the trial. All these things should be carefully considered by you, and, if you believe from the testimony that any witness has willfully sworn falsely to any material fact, then you are at liberty to disregard the whole or any part of such witness' testimony.

"(5) Notwithstanding you may believe from the evidence that the debtors of the Bank of Commerce owed said bank an amount of money which, if it could have been collected, would have enabled the bank to keep running, yet if you further find from the testimony that said bank was insolvent or in failing circumstances at the time of the deposit of money mentioned in the indictment, and that defendant had knowledge of its condition, then it is your duty to convict the defendant.

"(6) You are instructed that the evidence bearing upon the financial standing of the officers of the Bank of Commerce, including the witness Gray, prior to July 11, 1893, is only admitted for the purpose of determining the effect such reputation had upon the defendant in his business transactions with them for said bank; but...