State v. Sanford

• Decision Date: 13 July 1927
• Docket Number: 27054
• Parties: The State v. E. L. Sanford, Appellant
• Court: Missouri Supreme Court

297 S.W. 73

317 Mo. 865

The State v. E. L. Sanford, Appellant

No. 27054

Supreme Court of Missouri

July 13, 1927

Appeal from Benton Circuit Court; Hon. C. A. Calvird Judge.

Reversed and remanded.

O E. Gorman, W. E. Owen and Henry P. Lay for appellant.

(1) The indictment is absolutely defective, because it fails to allege (a) that the deposit was in fact received by the bank and (b) that at the time the bank was, in fact, insolvent or in failing circumstances. Fleming v. State (Tex.), 139 S.W. 598; State v. Hubbard, 170 Mo. 346; State v. Phelan, 159 Mo. 122. (2) It was not only material but gross error to permit the witness Bushnell to testify to the conclusions he drew from his interview with the board of directors of whom the defendant was one: to his understanding of the result of that conference when he had not testified in detail to the conversations; had not presented the notes discussed; had not even offered his memorandum which he testified he had made, in evidence; thus permitting the witness, by his opinion, not supported by any tangible facts, to usurp the province of the jury. 22 C. J. 515, 516. The normal function of a witness is merely to state facts within his personal knowledge, and under normal circumstances his opinion or conclusion with respect to matters relevant to the issue cannot be received. 22 C. J. 485. (3) It was material error to permit witness Cahill to testify to the value of the machinery of the Interstate Milling Company without qualifying as an expert, and basing his testimony upon the ex parte statements, mere hearsay, of "an expert machinery man" who appraised the machinery, but who was not offered as a witness. The result was the mere conclusion of the witness based upon the hearsay of some "expert" who was not named, produced or submitted to cross-examination. But even worse than this the same witness, over the proper objections of the defendant, was permitted to testify as to the sum realized from the sale of the assets of this company under forced sale. (4) It was material error to permit the witness Cahill to testify that the reasonable value of the book accounts of the Ferguson Furniture Co. was $ 13,000 or $ 14,000, the book accounts having not been offered in evidence and the witness not having shown any knowledge of the condition of the debtors or the debts to permit him to testify as an expert. (5) Instruction 4 is very material error: Clearly this instruction deprives the defendant of his presumption of innocence, and leads the jury to believe that the burden of proof is on him to prove his innocence. Which is still error. 16 C. J. 987, note 74. The defendant has the right to stand mute, and require the State to prove his guilt beyond a reasonable doubt; he cannot be required to disprove his guilt. It seems clear to us that it can only mean to a jury that under the law the defendant is guilty, reserving to him the right, if he can, to prove his innocence, and then, and not until then, he again becomes clothed with the presumption of innocence.

North T. Gentry, Attorney-General, and W. F. Frank, Assistant Attorney-General, for respondent.

(1) The indictment properly charges assent to the reception of a deposit in an insolvent bank after having knowledge of such insolvency. Sec. 3365, R. S. 1919; Kelly's Criminal Law (3 Ed.) sec. 719; State v. Buck, 108 Mo. 625; State v. Buck, 120 Mo. 486; State v. Sattley, 131 Mo. 482; State v. Lively, 279 S.W. 78. (2) No error was committed in the admission and rejection of evidence. (3) Appellant's complaint against the giving of Instructions 1, 2, 3, 4, 5 and 12 is without merit. Similar instructions have been approved by this court. State v. Burlingame, 146 Mo. 207; State v. Darrah, 152 Mo. 522; State v. Sattley, 131 Mo. 490; State v. Buck, 120 Mo. 487; State v. Lively, 279 S.W. 76. No objection is made to other instructions given.

Blair, J. Walker, J., concurs; White, P. J., not sitting.

OPINION

BLAIR

Appellant was convicted upon the second count of an indictment which charged him with assenting to the reception of a deposit of one hundred dollars in the Holland Banking Company, a banking institution doing business at Springfield, in Green County, knowing that said bank was at the time insolvent and in failing circumstances.

The venue was changed to Benton County, where trial was had. The jury found appellant guilty as charged in the second count of the indictment and assessed his punishment at imprisonment in the penitentiary for a term of four years. Motions for new trial and in arrest of judgment were ruled adversely to the appellant, and he appealed to this court from the judgment entered on the verdict.

It will not be necessary to state the facts at length because counsel for appellant concede that a case was made for the jury. On January 15, 1924, pursuant to resolution of its board of directors and in response to a request made by appellant, the assets of the Holland Banking Company were taken over by C. E. Bushnell, a bank examiner of the Department of Finance of this State. On January 11, 1924, or four days before the bank was closed, Mrs. J. A. Riley deposited one hundred dollars in said bank. It is admitted that appellant assented to the acceptance of such deposit. It is also conceded that there was substantial evidence tending to show that the bank was in failing circumstances at the time said deposit was accepted. The failure of said bank constituted prima-facie evidence of knowledge on the part of appellant that the bank, of which he was president, was insolvent or in failing circumstances when said deposit was accepted. [Sec. 3365, R. S. 1919.] There was also substantial evidence tending to prove actual knowledge of that fact on the part of appellant at and prior to the time such deposit was received. Thus a case for the jury was made out under said Section 3365.

I. The first assignment of error is that the record does not disclose that the Greene County Criminal Court was organized, that the grand jury was impanelled or that the indictment was returned into court. Consideration of the merits of this assignment is rendered unnecessary, for the reason that, since the cause was submitted here, the clerk of said court has tendered, and we have given leave to the filing of, a supplemental transcript of the record by which all of such facts are properly shown.

II. Appellant contends that the indictment does not state facts sufficient to constitute an offense. This assignment is based upon the contention, first, that the indictment fails to allege that the deposit was in fact received by the bank, and second, that the indictment fails to allege that the bank was in fact insolvent or in failing circumstances at the time the deposit was received. The second count of the indictment was as follows:

"And the grand jurors aforesaid, empanelled, sworn and charged as aforesaid, upon their oath aforesaid do further present and charge that the said E. L. Sanford on the 11th day of January, 1924, at the County of Greene and State of Missouri, being then and there president of Holland Banking Company, a corporation, duly organized and existing under the laws of the State of Missouri, the same being then and there a banking institution doing business in the city of Springfield, county and state aforesaid, a certain deposit of money, to-wit: One hundred dollars lawful money of the United States of the value of one hundred dollars, the money and property of Mrs. J. A. Riley, did then and there unlawfully and feloniously assent to the reception of said one hundred dollars from the said Mrs. J. A. Riley in said Holland Banking Company, after he, the said E. L. Sanford, had knowledge of the fact and well knew that the said Holland Banking Company was then and there insolvent and in failing circumstances, and so the said E. L. Sanford, the money aforesaid, to-wit: One hundred dollars, lawful money of the United States of the value of one hundred dollars, the money and property of the said Mrs. J. A. Riley, in the matter and form aforesaid, did then and there unlawfully and feloniously steal, take and carry away, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State."

The allegation respecting the reception of said deposit with the assent of appellant is rather awkwardly worded, but substantially conforms to the language used in Section 3365, Revised Statutes 1919. That section denounces two offenses. One is the reception of the deposit personally by the officer of the bank and the other offense is for the officer to "assent to the reception of any deposit . . . after he shall [have] had knowledge of the fact that such banking institution . . . is insolvent or in failing circumstances." Both of the allegations in the indictment, criticised as insufficient, are substantially in the language of the statute. Of course, the jury must find as a fact that a deposit of thirty dollars or more was actually accepted and that the bank was insolvent or in failing circumstances at that time. The jury could not truthfully find the facts charged in the indictment without finding that the bank was insolvent or in failing circumstances and that a deposit was in fact accepted.

Indictment in all respects substantially the same as the indictment before us were approved in State v Buck, 108 Mo. 622, and State v. Buck, 120 Mo. 479. In the first Buck case it was specifically urged that the indictment, which was similar in this respect to the one now before us, did not charge "that defendants as owners of the bank were previously insolvent or in failing circumstances." While Judge Macfarlane did not discuss this particular objection to the indictment, he held that it was good in all respects....