State v. Darragh

• Decision Date: 05 December 1899
• Citation: 54 S.W. 226,152 Mo. 522
• Parties: STATE v. DARRAGH.
• Court: Missouri Supreme Court

54 S.W. 226

152 Mo. 522

STATE v. DARRAGH.

Supreme Court of Missouri.

December 5, 1899.

CRIMINAL LAW — BANKS AND BANKING — WRONGFUL RECEPTION OF DEPOSITS — INSOLVENCY — STATUTES — CONSTITUTIONAL LAW — TRIAL — INSTRUCTIONS.

1. Rev. St. 1889, § 3581, making it larceny for any officer of a bank to assent to the reception of deposits after he has knowledge that such bank is in failing circumstances, does not violate Const. art. 4, § 53, prohibiting special legislation.

2. Const. art. 12, § 27, making it a crime, the nature and punishment of which shall be prescribed by law, for any officer of a bank to assent to the reception of deposits after knowledge that such bank is insolvent, and Rev. St. 1889, § 3581, passed thereunder, do not violate Coast.

U. S. Amend. 14, § 1, providing that no state shall deny to any person within its jurisdiction the equal protection of the laws.

3. An instruction failing to require the jury to find that the offense charged was committed in the county named is not erroneous, where such point had been covered by an instruction previously given.

4. It was not error to instruct that a bank is in failing circumstances when unable to meet the demands of its depositors in the ordinary and usual course of business, even though an inability to so meet demands upon it was caused by a stringency in the money market.

5. An instruction, in the language of the statute, that the failure of a bank is prima facie evidence of knowledge on the part of its president that the same was in failing circumstances, coupled with a statement that prima facie evidence is such that raises such a degree of probability in its favor that it must prevail unless it be rebutted, or the contrary proved, is not erroneous.

6. An instruction that "the indictment, of itself, is no evidence of guilt," is not objectionable because of the presence of the words "of itself."

7. An instruction that "it is not, of itself, a crime for the president of a bank to borrow money of the bank of which he is president," is not objectionable because of the presence of the words "of itself."

8. It was not error, as commenting upon evidence, on the trial of a president of a bank for assenting to the reception of deposits after knowledge of the bank's insolvency, and where it had been shown that the president had borrowed money of the bank, to instruct that the fact that the president borrowed money of the bank could be considered in determining the condition of the bank, and for no other purpose.

9. It was not error to instruct that verbal statements of the defendant which had been proved should be taken into consideration with all other facts and circumstances, and what the defendant has said against himself the law presumes to be true.

10. It was not error to instruct that, in determining the guilt or innocence of defendant, testimony as to his honesty and integrity should be taken into account, but that, if he was found guilty, his previous good character could not justify or excuse the offense.

11. It was not error to refuse an instruction that testimony as to the value of assets of a bank must not be considered when based on information gained from others, since the only way of ascertaining the value of such assets is to take the estimate at which they are generally held in the market.

12. It was error to refuse an instruction that testimony of expert witnesses as to the value of assets of a bank might be disregarded by the jury if deemed unreasonable.

13. It was error, on the trial of a bank president for assenting to the reception of deposits after knowledge of the bank's insolvency, to refuse an instruction that, although the failure of the bank was by statute made prima facie evidence of the knowledge by the defendant that the same was in failing circumstances, yet the burden of proof was not thereby changed, but that the defendant could show the condition of the bank, and circumstances tending to exonerate him from criminal liability, and then, on the whole case, the burden of proof would still rest on the state.

14. The refusal, on a trial for wrongfully assenting to a deposit in a bank, to instruct the jury clearly that statutory prima facie evidence of guilt in the defendant did not necessarily change the burden of proof from the state to the defendant, is not cured by general instructions that the jury must be satisfied of the defendant's guilt, and that the law presumes his innocence.

In banc. Appeal from criminal court, Jackson county.

James C. Darragh was convicted of assenting to the reception of a deposit in a bank after knowledge of its insolvency, and appeals. Reversed.

Warner, Dean, Gibson & McLeod and Gage, Ladd & Small, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries. Asst. Atty. Gen., for the State.

BRACE, J.

By section 27, art. 12, of the constitution, it is provided that: "It shall be a crime the nature and punishment of which shall be prescribed by law for any president, director, manager, cashier or other officer of any banking institution, to assent to the reception of deposits or the creation of debts by such banking institution, after he shall have had knowledge of the fact that it is insolvent or in failing circumstances, and any such officer, agent or manager shall be individually responsible for such deposits so received, and all such debts so created with his assent." By section 3581, Rev. St. 1889, passed in pursuance of this constitutional mandate (State v. Kelsey, 89 Mo. 623, 1 S. W. 838), it is provided: "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 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 officer or person that the same was insolvent or in failing circumstances when the money or property was received on deposit." Under this section the defendant was indicted, convicted, and his punishment assessed at two years in the state penitentiary, in the criminal court of Jackson county. After an unsuccessful motion for a new trial, the case was duly appealed to this court. On the trial, exceptions were saved to the action of the court in admitting and rejecting some of the evidence, which is assigned as error.

The case was submitted to the jury on the following instructions:

"No. 1. The court instructs the jury that these instructions contain the law of this case. It is the duty of the jury to apply the proven facts of the case to the law here given, and find their verdict accordingly.

"No. 2. The court instructs the jury that if you shall believe from the evidence that the defendant, at the county of Jackson and state of Missouri, at any time within three years next before the 13th day of October, 1893, was the president of the Kansas City Safe-Deposit & Savings Bank, and that the same was a corporation, and doing business as a banking institution in said county and state, did then and there unlawfully and feloniously assent to the taking and receiving on deposit in said banking institution the money of Christina Voight to the amount of thirty dollars or more, and that said banking institution was then and there in failing circumstances, and that the defendant was then and there the president of said banking institution, doing business as such, and that the defendant had knowledge at the time when such deposit was received that said banking institution was in failing circumstances, you will find the defendant guilty, and assess the punishment by imprisonment in the penitentiary for any time not less than two years and not more than five years. `Feloniously,' as used in these instructions, means wickedly and against the admonition of the law; unlawfully.

"No. 3. If the jury believe from the evidence that on July 10, 1893, the witness Christina Voight did deposit in the Kansas City Safe-Deposit & Savings Bank, a banking institution doing business in the state of Missouri, at the county of Jackson, state aforesaid, three hundred dollars, or any part thereof, of the value of thirty dollars or more, lawful money of the United States, of the money and property of the witness Christina Voight; and shall further believe from the evidence that the said deposit was not taken and received by the defendant himself, but was taken and received by some other person, but that such other person was then and there in the employ of the said Kansas City Safe-Deposit & Savings Bank, and acting under the direction and control of the defendant in said employment, and that such other person had general power and authority from the defendant to receive deposits of money into said bank, and that said bank was then and there in failing circumstances, and the defendant had knowledge that said bank was there and then in failing circumstances,—they will find the defendant guilty as charged.

"No. 4. The court instructs the jury that a banking institution is in failing circumstances when it is unable to meet the demands of its depositors in the usual and ordinary course of business,...