State v. Mitchell
| Citation | 95 Miss. 130,48 So. 963 |
| Court | United States State Supreme Court of Mississippi |
| Decision Date | 12 April 1909 |
| Parties | STATE OF MISSISSIPPI v. EDMUND MITCHELL |
March 1909
FROM the circuit court of Jackson county, HON. WILLIAM H. HARDY Judge.
Mitchell appellee, was, jointly with several others, indicted for knowingly receiving deposits in an insolvent bank. A severance having been granted, appellee pleaded specially and the state demurred the plea. From a judgment overruling the demurrer and quashing the indictment, the state appealed to the supreme court.
The indictment was based upon Code 1906, § 1169, and charged that Mitchell and others, officers and directors and managers of the Ocean Springs branch of the Scranton State Bank received a deposit of money, ninety-five dollars, from Mrs Aline Phelps, a depositor, while the said officers and directors and managers knew that the bank was insolvent, and without informing Mrs. Phelps of the insolvent condition of the bank. The appellee filed a special plea to the indictment, averred that he was a director of the bank in question at the time of the alleged deposit and had no other connection with the bank save such as existed by virtue of law because of his relation as director; that he was not present at the Ocean Springs branch of the Scranton State Bank when the deposit was made, and, in fact, did not know of the deposit until the indictment was returned against him; that "he had no instrumentality in or connection with receiving the said deposit; that at the time the deposit was received he, defendant, was at or near Scranton, Mississippi, in the pursuit of his accustomed business; that he had no information that said deposit was going to be made or that it was likely to be made; that he did not direct it to be received and that he did not know that it had been received until the indictment was returned against him; that he did not see the depositor make the said deposit and had no opportunity to inform her of anything with respect to the Scranton State Bank or the Ocean Springs branch therof."
The state's demurrer to this plea questioned the sufficiency thereof because the plea admitted that appellee was a director. The court below overruled the demurrer and sustained the plea as being in abatement and quashed the indictment; but, at the request of the district attorney, held the appellee under bond in the sum of $ 5,000 to await the result of an appeal to the supreme court.
The statute under which appellee was indicted, Code 1906, § 1169, is as follows: "If the president, manager, cashier, teller, assistant, clerk, or other employe or agent of any bank or broker's office or establishment conducting the business of receiving on deposit the money or other valuable things of other persons shall remove or secrete or conceal the assets or effects of such establishment for the purpose of defrauding any of the creditors of the establishment, or shall receive any deposit knowing, or having good reason to believe, the establishment to be insolvent, without informing the depositor of such condition, on conviction, he shall be imprisoned in the penitentiary not longer than five years."
Reversed.
George Butler, assistant attorney-general, for appellant.
At the very threshhold we charge that the appellee's special plea in bar amounts to nothing more than the general issue, that is to say, an alibi; and the demurrer to the plea should, for that reason, have been sustained. 12 Cyc. 361; Danforth v. State, 75 Ga. 614; Peters v. State, 3 Green (Ia.) 74; Fox v. State, 89 Ind. 381; Davis v. State, 152 Ind. 145.
Furthermore, after the demurrer had been overruled the indictment should not have been quashed and the prisoner discharged, but an issue should have been made up and the matter submitted to a jury. State v. Barret, 54 Ind. 434.
The indictment charges that appellee was a person in authority and having knowledge of the affairs of the bank, and that he, together with the other officers of the bank, knowingly permitted the deposits to be made while the bank was insolvent. Hence, for this reason the indictment should not have been quashed, since an issue was made up by the averment of the indictment and the denials of the appellees' plea, and this issue, which was one of fact, was for the jury's determination.
B. P. Harrison, district attorney, on the same side.
In construing Code 1906, § 1169, upon which the indictment in question is based, we must look to the intent of the legislature in the matter. Its object, to quote CAMPBELL, J., in Hughes v. Lake, 63 Miss. 557, "was to protect the confiding public from the victimization apt to result from depositing in an insolvent establishment, and it seeks to give protection by denouncing a penalty against him who receives a deposit, knowing or having good reason to believe that the establishment is insolvent." See also State v. Bardwell, 72 Miss. 538, 18 So. 377; Baker v. State, 54 Wis. 321; Meadowcraft v. People, 163 Ill. 56, 35 L. R. A. 176; Cook v. Hart, 146 U.S. 183, 36 L.Ed. 934.
Only by Code 1906, §§ 1426, 1427, could appellee properly raise objections to the legal sufficiency of the indictment, and, under the circumstances, the quashing of the indictment was error on the part of the court below. Hence, the judgment of the court below must be reversed, the indictment reinstated, the cause remanded and the appellee be held to await further action in due course in the court below.
May & Sanders, on the same side.
It will be noted that the appellee and his co-directors were jointly indicted as managing officers of the alleged insolvent bank and that as directors and managers they were conducting the business of receiving on deposit the money and other valuable things of other persons, in the Ocean Springs branch of the Scranton State Bank, at a time when appellee and his co- directors knew, or had good reason to know, that the bank was insolvent, and the deposit in question was received into the branch bank without information from appellee and his co-directors to the depositor to the effect that the bank was insolvent. The sufficiency of the indictment was not raised by demurrer, as would appear to be good practice under Code 1906, § 1426. Nor was motion made by appellee to quash the indictment, hence the action of the court below in quashing the indictment, practically of its own motion, was erroneous. Code 1906, § 1427.
Wm. D. Bullard, for appellee.
The indictment charges a crime which is a statutory offense, hence the statute in question must be looked to and strictly construed. Code 1906, § 1169, does not name a director of a bank among the list of officers mentioned. Mitchell, as director, was not actually engaged at the bank, was not required by law to receive moneys for the bank, hence could not be held liable criminally when some officer of the bank received money on deposit in and for the bank. State v. Walker, 88 Miss. 592, 41 So. 8; State v. Starling, 90 Miss. 255, 43 So. 952.
In State v. Warner, 60 Kan. 94, the doctrine that the defendant is not liable unless he receives the deposit is set forth in unmistakeable terms. The court there said: And the Kansas court reversed the judgment of the trial court.
Fitts & Leigh, on the same side.
The special plea, which was held by the court below to be sufficient,...
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