State v. Reid

Decision Date20 November 1894
PartiesSTATE v. REID.
CourtMissouri Supreme Court

Appeal from circuit court, Clay county; E. J. Broaddus, Judge.

John Reid was indicted for feloniously assenting to the receipt of money on deposit by the Western Trust & Savings Association, of which he was president, when such company was in failing circumstances. From a judgment sustaining a demurrer to the indictment, and discharging defendant, the state appeals. Affirmed.

R. F. Walker, Atty. Gen., Marcy K. Brown, and Frank Johnson, for the State. L. H. Waters, Peak & Ball, and Beebe & Watson, for respondent.

GANTT, P. J.

This is an appeal by the state from the judgment of the circuit court of Clay county sustaining a demurrer to an indictment in which said defendant is charged, as president of the Western Trust & Savings Association, a corporation duly organized under the laws of the state of Missouri (the same being a banking institution doing business in said county and state), with feloniously assenting to receiving a certain deposit of money to wit, $51.75, the money and property of Alexander C. Gibson, on deposit in said Western Trust & Savings Association, when said institution was in failing circumstances. The indictment is brought for a violation of section 3581, Rev. St. 1889.1

The demurrer raises the question whether trust companies, and the officers of such companies, are embraced within the provisions of section 3581. The learned circuit judge, upon hearing the argument upon this question, held that trust companies were not embraced within the provisions of said section, but further held that it did not sufficiently appear upon the face of the indictment that the Western Trust & Savings Association was a trust company organized under chapter 42, art. 11, of the Revised Statutes, and not a bank organized under article 9; stating at the same time that if it should appear from the evidence upon the trial that said Western Trust & Savings Association was a company organized under chapter 42, art. 11, of the Revised Statutes, he would sustain a demurrer to the evidence. Thereupon, the prosecuting attorney and the counsel for defendant entered into the stipulations copied into the record, agreeing that it was so organized, and the learned court then sustained the demurrer to the indictment. The correctness of this ruling is the only question presented by this appeal.

1. For the purposes of this appeal, we shall treat the record as if the stipulation constituted a part of the indictment; and it will will be unnecessary to determine whether, without this agreement, it sufficiently appears from the face of the indictment that the Western Trust & Savings Association was a trust company organized under chapter 42, art. 11, of the Revised Statutes of 1889, — a most interesting question, in view of our statutes requiring that every corporation organized under the laws of this state shall designate, in its name and title, the nature and character of the business in which it proposes to engage.

2. The Western Trust & Savings Association was a trust company organized under chapter 42, art. 11, of the Revised Statutes of 1889, and the defendant was its president at the time of the acts complained of, to wit, receiving a deposit of Alexander Gibson, knowing at the time said association was in failing circumstances; and the question arises, are the officers of trust companies organized under said article 11, Rev. St. 1889, embraced within the provisions of section 3581? If they are, the judgment must be reversed; if not, it must be affirmed.

Prior to the enactment of the statute by the legislature in 1877 for the purpose of enforcing section 27 of article 12 of the constitution of Missouri of 1875 (Sess. Acts 1877, p. 239), afterwards incorporated into the Revision of 1879 as section 1350, the directors or officers of an incorporated bank were not held criminally liable for receiving deposits, knowing such bank was insolvent or in failing circumstances. The constitution and the statute, in terms, applied only to officers of banking institutions. Although there were at that time many other corporations in existence in this state, banking corporations alone were mentioned in the constitution and the statute. A familiar rule of construction of criminal statutes is that they should be strictly construed, and not extended or enlarged by judicial construction so as to embrace offenses and persons not plainly within their terms. State v. Bryant, 90 Mo. 534, 2 S. W. 836; Sedg. St. Const. Law (2d Ed.) 280; Fusz v. Spaunhorst, 67 Mo. 256; Kritzer v. Woodson, 19 Mo. 327; Howell v. Stewart, 54 Mo. 400; U. S. v. Morris, 14 Pet. 464; Bish. St. Crimes (2d Ed.) §§ 196-227. The reason of the rule is found in the tenderness of the law for individuals, and on the plain principle that the power of punishment is vested in the legislature, and not in the judicial department. It is the duty of the legislature, and not the courts, to define a crime, and ordain its punishment. "If we had the power of legislation," says Lord Kenyon, applying the penalties of nonresidence, "perhaps we should think it proper to extend the penalties created by the statute of 21 Hen. VIII. c. 13, to all benefices with cure of souls; but as it is our duty to expound, and not to make, acts of parliament we must not extend a penal law to other cases than those intended by the legislature, even though we think they come within the mischief intended to be remedied." Jenkinson v. Thomas, 4 Term R. 666; 1 Bish. Cr. Law, §§ 134-145; U. S. v. Clayton, 2 Dill. 219, Fed. Cas. No. 14,814. The act of 1877 was construed by this court in State v. Kelsey, 89 Mo. 623, 1 S. W. 838, and held to apply only to incorporated banks, and not to private bankers. It is apparent at a glance that when section 3581 was first enacted, in 1877, it was not then intended to apply to trust companies, because the act providing for the incorporation of trust companies in this state was first enacted in 1885. Sess. Acts 1885, p. 103. Since the decision in State v. Kelsey, 89 Mo. 623, 1 S. W. 838, was promulgated, the act of 1877, or section 1350 of the Revision of 1879, has been amended so as to include private bankers. Sess. Acts 1887, p. 162; State v. Buck, 108 Mo. 628, 18 S. W. 1113; Id. (Mo. Sup.) 25 S. W. 573. As the Western Trust & Savings Association is an incorporated company, this amendment cannot affect the liability of its officers. The position assumed by the attorney general and prosecuting attorney of Jackson county is that the act originally creating trust companies in effect invested them with the functions of banks or banking institutions. The first subdivision of section 2839, Rev. St. 1889, — the basis for this contention, — is in these words: "Corporations may be created under this article for any one or more of the following purposes: First, to receive moneys in trust, and to accumulate the same at such rate of interest as may be obtained or agreed on or to allow such interest thereon as may be agreed not exceeding in either case the legal rate." The two sections added by amendment vested in trust companies additional powers, as follows: "Eighth. To loan money upon real estate and collateral security, and to execute and issue its notes and debentures, payable at a future date, and to pledge its mortgages on real estate and other securities, as security therefor. Ninth. To buy and sell all kinds of government, state, municipal and other bonds, and all kinds of negotiable and nonnegotiable paper, stocks and other investment securities." Laws 1887, p. 116, and found in Rev. St. 1889, § 2839, subds. 8, 9. In short, he claims that the first section constitutes a trust company a bank of deposit, and the eighth and ninth sections, a bank of discount; whereas the defendant contends that, while it is true that these trust companies are authorized to exercise some of the functions of a bank, they do not thereby necessarily become banking institutions or banks.

Section 7, art. 12, of the constitution of this state, provides that "no corporation shall engage in business other than that expressly authorized in its charter or the laws under which it may have been or hereafter may be organized," etc. Again, it is further provided by section 26 (Const. Mo. p. 106), under title, "Act Creating Banks to be Submitted to People": "No act of the general assembly, authorizing or creating corporations or associations with banking powers (except banks of deposit or discount), nor amendments thereto, shall go into effect, or in any manner be enforced, unless the same shall be submitted to a vote of the qualified voters of the state, at the general election next succeeding the passage of the same, and be approved by a majority of the votes cast at such election." It was the evident purpose of this constitutional provision to prevent the incorporation of banks of issue, even with legislative authority, without the act first being submitted to the people. Section 2743 of article 7, entitled "Savings Banks and Fund Companies," is as follows: "Sec. 2743. Who may be Incorporated. Any five or more persons in any county in this state, who shall have associated themselves by articles of agreement, in writing, as provided by law,...

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