State v. Mitchell
| Decision Date | 03 March 1932 |
| Docket Number | 241. |
| Citation | 163 S.E. 581,202 N.C. 439 |
| Parties | STATE v. MITCHELL, State Bank Examiner, et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; Small, Judge.
John Mitchell, chief State Bank Examiner, and W. T. Lee and others, acting members of the Corporation Commission, were indicted for certain violations of the criminal law pertaining to an alleged conspiracy by defendants to permit banks to remain open knowing that such banks were insolvent and to the alleged failure on the part of defendants to perform their duty by allowing certain insolvent banking institutions to remain open. A plea in abatement on the ground of improper venue was sustained, and the action was transferred to the superior court of another county, wherein the indictment was declared void and defendants were discharged, and the State appeals.
Affirmed.
Generally statutes should be construed with reference to common law existing when enacted.
On December 15, 1931, a grand jury in Buncombe county found and returned into the superior court a bill of indictment charging the defendants in three counts with certain violations of the criminal law.
In the first count it is charged that John Mitchell, chief State Bank Examiner, holding office under appointment by the corporation commission, and the other defendants, acting members of the corporation commission, charged with the special duty of prohibiting banks and banking institutions in the state from continuing to do business and receive deposits of money while they were in an unsafe and unsound condition unlawfully and willfully failed, neglected, and refused, and willfully conspired together to fail, neglect, and refuse to perform their duty, and conspired to permit and allow banks and banking institutions in the state to remain open for receiving deposits of money and transacting business, knowing that such banks and banking institutions were unsafe unsound, and insolvent.
In the second count it is charged that the defendants, while occupying the respective offices named in the first count, and while charged with the duty of requiring banks and banking institutions to comply with the laws of the state, with particular reference to carrying on and continuing their business in a safe, sound, and solvent condition and requiring such as were unsafe, unsound, or insolvent to suspend business or to place themselves in a safe, sound, and solvent condition, willfully and fraudulently permitted and allowed the Central Bank & Trust Company, a banking institution with its principal place of business in Asheville, to remain open for the purpose of receiving deposits of money from the general public and transacting other business, while it was in an unsafe, unsound, and insolvent condition, and permitted, allowed, and encouraged such bank to receive deposits of money while insolvent, to the great loss of depositors.
In substantially similar terms the third count charges the defendants with willfully and fraudulently permitting and allowing the Biltmore-Oteen Bank, a banking institution at Biltmore, to remain open for the purpose of receiving deposits and transacting business while it was insolvent, and permitted, allowed, and encouraged it to receive deposits of money when it was insolvent.
The defendants filed a plea in abatement, each averring for himself "that he ought not to be compelled to answer the said indictment because he says that Buncombe County is not the proper venue for the prosecution and trial of the offense or offenses charged in the said bill of indictment, because if the offense or offenses charged in the bill of indictment were committed, the same were committed in the County of Wake, in that the said bill of indictment charges the said defendants and each of them with neglect of official duties, and with misfeasance, malfeasance and nonfeasance in the performance of official duties, and in that the seat of office and place fixed by statute for the performance of official duties on the part of the defendants who are members of the Corporation Commission of North Carolina, is and was at all times referred to in said indictment at Raleigh, in the said County of Wake, and any acts of omission or commission, if any, on the part of the said defendants in the performance of their official duties, as charged in said bill of indictment, were performed and committed in the said County of Wake, and not elsewhere; and in that the said other named defendant, to-wit: John Mitchell, Chief State Bank Examiner, at the times referred to in the indictment had his office and place of business and headquarters for the performance of his official duties at Raleigh, in said County of Wake, in accordance with the condition of his appointment to such position, and such acts of omission or commission, if any, on the part of said defendant with respect to the matters charged in said bill of indictment, were performed and committed in the said County of Wake, and not elsewhere."
At November term, 1931, of the superior court of Buncombe county, his honor, Cameron F. MacRae, special judge, presiding, the plea in abatement was sustained, the action was transferred to the superior court of Wake county, and the defendants were required to appear at an ensuing term in Wake county, and answer the charges preferred in the indictment.
On December 18, 1931, the defendants filed the following motion in the superior court of Wake county:
On the day this motion was made the defendants filed a demurrer to the indictment on the ground that the allegations and counts therein charge no crime or misdemeanor indictable under the laws of this state.
At the December term, 1931, of Wake county, Judge Small gave judgment that the indictment found in Buncombe county abate and be declared null and void, and that the demurrer be sustained and the defendants discharged.
The state excepted and...
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