State v. Meininger
| Decision Date | 11 January 1926 |
| Docket Number | 26639 |
| Citation | 290 S.W. 1007 |
| Parties | STATE v. MEININGER |
| Court | Missouri Supreme Court |
Motion for Rehearing Denied March 20, 1926.
James Booth, of Pacific, W. L. Cole, of Union, and Anderson Gilbert & Wolfert and Harvey & Baer, all of St Louis, for appellant.
North Todd Gentry, Atty. Gen., for the State.
By the verdict of the jury, the defendant was found guilty of the offense of assenting to the reception of a deposit in the Night & Day Bank of St. Louis, Mo., while it was in an insolvent condition, knowing it to be insolvent as charged in the indictment, and his punishment assessed at five years' imprisonment in the state penitentiary. After motions for new trial and in arrest were overruled, sentence was duly pronounced in accordance with the verdict -- the term of imprisonment to begin at the termination of the sentence of imprisonment for three years imposed upon the defendant in case numbered 26638, 290 S.W. 999, the judgment in which case being affirmed at this sitting. An appeal was duly granted.
The defendant was indicted in the circuit court of the city of St. Louis and a change of venue was awarded to the circuit court of Franklin county. The first count of the indictment being that on which the defendant was convicted, charges in substance that Arthur O. Meininger was, on December 31, 1921, a director and officer of the Night & Day Bank of St. Louis, Mo., a corporation duly organized and doing a banking business in the city of St. Louis, Mo.; that it was insolvent on said day as defendant then well knew; and that, knowing that the bank was then and there insolvent, the defendant unlawfully, etc., did on said day unlawfully, etc., receive for, on, and as a deposit in said bank $ 60 lawful money and personal property of Asmus J. Andresen, and so the said Arthur O. Meininger the said $ 60, lawful money, etc., as aforesaid, did unlawfully, etc., steal, take, and carry away, etc. The indictment, the evidence, the instructions, motions for new trial and in arrest, and the contentions on appeal in other respects are substantially the same in both cases. They were argued and submitted on appeal as one case.
1. Error is alleged in the motion for new trial in that the court refused to sustain the defendant's challenge of the juror James T. Dewright 'because of the fact that he is serving the second time in the same year.' This alleged error is not referred to in appellant's brief. The practice in civil cases in respect to the impaneling of jurors is applicable in criminal trials except in cases otherwise provided. Section 4023, R. S. 1919. The fact that the juror is serving a second time during the same year is not a disqualification nor a ground for challenge. Section 6632, R. S. 1919; Kelley's Crim. Law, § 352. The court did not err in overruling the challenge.
2. The motion for new trial alleges error in overruling the defendant's motion for a continuance, which was filed on September 30, 1924, for the reason that he was placed on trial at the same term of court at which he had been convicted of a felony, to wit, 'receiving a deposit and assenting to the reception thereof, knowing said bank to be in an insolvent condition and in failing circumstances; that said cause was tried before this court and a jury,' and said cause was submitted to a jury; that 12 of the jurors summoned to serve in this case were peremptorily challenged by the parties; that 5 more were on the panel; that the 17 heard the assistant circuit attorney's statement of the case, and the case now called is the same offense as that on which he was tried except as to date, amount, and name of depositor; that since the said 12 jurors have been challenged peremptorily they have remained at the county seat under admonition by the court not to remain in the courtroom, but some of them have been present at the trial and heard part of the proceedings and will be prejudiced against the defendant; that St. Louis newspapers reported the proceedings, which papers circulated and were read in the county seat and were read by said 17 jurors and others who will be called as jurors, as defendant believes. It is further alleged that defendant was, on May 31, 1923, convicted of embezzlement in this court out of his connection with the Night & Day Bank and sentenced to the penitentiary for a term of five years, and that his appeal therefrom is still pending, and that on account of prejudice arising from the foregoing facts he cannot have a fair and impartial trial at this time. No evidence was offered in support of this motion, and it was overruled on the same day. The motion did not prove itself, and we cannot convict the court of error in its action in overruling the motion.
3. On the same day the defendant filed another motion for a continuance, alleging that he was convicted in said court of embezzlement and sentenced to the penitentiary for...
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