State v. Reid

• Decision Date: 20 November 1894
• Parties: The State, Appellant, v. Reid
• Court: Missouri Supreme Court

28 S.W. 172

125 Mo. 43

The State, Appellant, v. Reid

Supreme Court of Missouri, Second Division

November 20, 1894

Appeal from Clay Circuit Court. -- Hon. E. J. Broaddus, Judge.

Affirmed.

R. F Walker, Attorney General, Marcy K. Brown, Prosecuting Attorney, and Frank Johnson, Assistant Prosecuting Attorney for the state.

(1) Under the authorities and the terms of the statute creating it, the Western Trust & Saving Association falls within the definition of a banking institution. Wharton's Law Lexicon; Abbott's Law Lexicon; Way v Butterworth, 106 Mass. 76; Boone on Corporations, sec. 212; Oulton v. Sav. Institution, 17 Wall. 118. (2) Whether a given corporation is or is not a banking institution depends not upon its name or the title of the act under which it is organized, but upon the powers which such corporation has and exercises under its charter, or the statute under which it is incorporated. Insurance and Trust Co. v. Debolt, 16 Howard, 416; New Orleans v. Savings Institution, 32 La. Ann. 531. (3) To "discount" paper, in the language of banking, is "only a mode of loaning money." Bank v. Baker, 15 Ohio St. 690; Freeman v. Britton, 2 Harr. (N. J.) loc. cit. 206; Talmage v. Pell, 3 Selden (N. Y.), loc. cit. 348; Smith v. Bank, 26 Ohio St. 141. (4) "The 'discounting' of a note by a bank is understood to consist in the lending of money upon it, and deducting the interest or premium in advance." Webster's Dictionary, etc., Bank v. Bruce, 17 N. Y. loc. cit. 515; In re Weeks, 13 Bankr. Register 269. "Every discount of a bill or note is simply a loan." Freeman v. Britton, 2 Harr. (N. J.) loc. cit. 206. (5) "The ordinary meaning of the term 'to discount' is to take interest in advance, and in banking it is a mode of loaning money. It is the advance of money not due till some future period, less the interest which would be due thereon when payable." Weckler v. Bank, 42 Md. loc. cit. 592; Pape v. Bank, 20 Kan. loc. cit. 447. (6) "To discount a bill is simply to buy it for a less sum than that which upon its face is payable." Saltmarsh v. Bank, 14 Ala. loc. cit. 677; Pape v. Bank, 20 Kan. loc. cit. 451; 1 Bouv. Law Dict., title, "Discount;" Bank v. Baker, 15 Ohio St. loc. cit. 85. (7) Authority given to a corporation "to buy" includes "to discount," for "discounting" is not another term for "buying at a discount." Tracy v. Talmage, 18 Barb. (N. Y.) loc. cit. 462; Bank v. Savery, 82 N.Y. 291; People v. Bank, 1 Doug. (Mich.) loc. cit. 289. (8) The buying of a note for less than its face is a discount thereof within the meaning of the banking law. Bank v. Savery, 82 N.Y. 291. (9) The term "discounting," applied to securities in banking, includes either a loan upon or a sale of such securities. 1 Bouvier's Law Dict., title, "Discount;" Bank v. Baker, 15 Ohio St. loc. cit. 451; Pape v. Bank, 20 Kan. loc. cit. 85; Smith v. Bank, 26 Ohio St. 141. (10) The legislature clearly intended to bring within the penalties of section 3581 incorporated banks authorized by law, and all other corporations which might do a banking business, whether they were in law authorized to do such business or not. State v. Kelsey, 89 Mo. 658; State v. Buck, 108 Mo. 628.

L. H. Waters, Peak & Ball, Beebe & Watson, and also Cook & Gossett for respondent.

(1) There is a familiar rule of construing criminal statutes, that they should be strictly construed, and not extended or enlarged by judicial construction, so as to embrace offenses and persons not plainly and unmistakably within their terms. Sedgwick on Statutes, p. 324; U. S. v. Morris, 14 Pet. 694; U. S. v. Wittenberg, 5 Wheat. 76; U. S. v. Clayton, 2 Dillon, 219; U. S. v. Whittier, 7 Cent. Law Jour., 51; State v. Green, 87 Mo. 584; State v. Bryant, 90 Mo. 534; Manz v. Railroad, 87 Mo. 278. (2) Another rule of construction almost equally as familiar as the foregoing, is that statutes should be construed with reference to the condition and state of the law at the time of their adoption, and that words used in a statute should be construed with reference to their meaning, at the time of the passage of the act. Hauser v. Thompson, 56 Mo.App. 93; Dawson v. Dawson, 23 Mo.App. 169. (3) Even in civil matters, and under statutes far more favorable to the contention of the prosecution than our statutes, the courts have held that trust companies are not banks or banking institutions. Pratt v. Short, 79 N.Y. 437; Langard v. Railroad, 49 Iowa 317; Wells-Fargo & Co. v. Railroad, 23 F. 469; Loan & Trust Co. v. Helmer, 77 N.Y. 64; Bank v. N. Y., 121 U.S. 138; Selden v. Trust Co., 94 U.S. 419; Beach on Corp. sec. 163. Tested by the foregoing principles, trust companies do not fall within Revised Statutes, 1889, section 3581, forbidding the officers of any banking institution from receiving deposits when the bank or banking institution is insolvent.

OPINION

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 and Saving 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 and Saving Association when said institution was in failing circumstances. The indictment is brought for a violation of section 3581, Revised Statutes, 1889.

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 and Saving Association was a trust company organized under article 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 and Saving Association was a company organized under article 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 judge then sustained the demurrer to the indictment. The correctness of this ruling is the only question presented by this appeal.

I. For the purposes of this appeal we shall treat the record as if the stipulation constituted a part of the indictment, and it will be unnecessary to determine whether, without this agreement, it sufficiently appears from the face of the indictment that the Western Trust and Saving Association was a trust company organized under article 11 of 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.

The Western Trust and Saving Association was a trust company organized under article 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, Revised Statutes, 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, 1875, session acts 1877, page 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; Sedgwick on Construction of Statutory and Constitutional Law [2 Ed.], 280; Fusz v. Spaunhorst, 67 Mo. 256; Kritzer v. Woodson, 19 Mo. 327; Howell v. Stewart, 54 Mo. 400; United States v. Morris, 14 Peters 464; Bishop on Statutory Crimes [2 Ed.], secs. 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 for nonresidence, "perhaps we should think it proper to extend the penalties created by the statute of Henry VIII chapter 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....