State v. Shelby

• Citation: 64 S.W.2d 269,333 Mo. 1036
• Decision Date: 19 October 1933
• Docket Number: 32306
• Parties: The State v. Thomas K. Shelby, Appellant
• Court: United States State Supreme Court of Missouri

64 S.W.2d 269

333 Mo. 1036

The State v. Thomas K. Shelby, Appellant

No. 32306

Supreme Court of Missouri

October 19, 1933

Appeal from Warren Circuit Court; Hon. William C. Hughes Judge.

Reversed and remanded.

Cole & Hukriede, Claude R. Ball and Clarence A. Barnes for appellant.

(1) Section 3365, R. S. 1919, is unconstitutional and contravenes Section 27 of Article 12 of the Constitution of missouri. The section of the Constitution only authorized and directed the Legislature to prescribe the nature and punishment of the crime of receiving deposits knowing the institution receiving the same is insolvent or in failing circumstances; and thereby impliedly denied the Legislature the right to fix a rule of evidence, which was done in the closing provisions of said Section 3365. Art. 12, Sec. 27, Const. of Mo.; R. S 1919, p. 174; R. S. 1929, p. 154. (a) Section 3365 is unconstitutional and violates the provisions of Article 4 Section 53, subsection 17, in that it attempts to regulate the practice and changes the rules of evidence in a judicial proceeding before the circuit court by incorporating the provisions relating to prima facie evidence of knowledge on the part of an officer of a failed bank; that the bank was insolvent or in failing circumstances when the money or property was received on deposit by such bank through such officers. Art. 4, Sec. 53, subsec. 17, R. S. 1919, p. 107; R. S. 1929, p. 97. (b) The information failed to advise and inform the defendant of the nature and cause of the accusation against him. Art. 2, Sec. 22, Const. of Mo.; R. S. 1929, p. 70. (c) The information did not charge the defendant with the commission of any public offense, and the facts stated in the information do not constitute a public offense. (2) The court erred in refusing to give defendant's instruction in the nature of a demurrer No. "A," offered at the close of plaintiff's evidence in chief, because the information and evidence were insufficient to support a verdict against the defendant. (a) The information fails to inform the defendant of the offense with which he was charged, and to charge any public offense committed by him, and attempts to charge a certain obligation was assigned (the Christopher check). (b) The information is duplicitous in that it undertakes to charge the defendant, first, as cashier, and second, as director of the Commercial Bank; and that the Commercial Bank was, first, insolvent, and second, in failing circumstances; and that the deposit was, first, money, second, a valuable thing, namely: a check, and it does not charge that Christopher delivered the check to the bank or its officers. (c) It fails to charge that the payee of the check indorsed the same, or that anyone beside the payee, proffered the check for deposit, and that defendant received it during business hours of the bank, and wholly fails to charge that it was received by the bank for deposit through the agency of the defendant as either cashier or director. (d) There was no evidence in the case of defendant having actual knowledge that the bank was in failing condition, save and except the proviso of the statute, Section 3365, and because the bank closed some ten days after the so-called deposit was made, that the subsequent closing of the bank made it a prima facie case against the defendant, that he knew that it was in a failing condition. (3) The court erred in giving plaintiff's Instruction 5, reading: "The court instructs the jury that the failure of the Commercial Bank of Wellsville on May 10, 1930, if you find it did so fail, is prima facie evidence of the knowledge on the part of the defendant that the same was in failing circumstances on the 1st day of May, 1930. And you are further instructed that prima facie evidence is such that raises such a degree of probability in its favor that it must prevail unless it is rebutted or the contrary proven. Yet, you are further instructed the burden of proving the State's case is not really changed. The law enables the State to make a prima facie case by proof of the taking, having and receiving on deposit in said Commercial Bank of Wellsville of a valuable thing, and the subsequent failure of said bank, if you find it did so fail, and then on the whole of the case the burden still rests on the State to establish the defendant's guilt beyond a reasonable doubt. The presumption of innocence with which the defendant is clothed never shifts but rest with him throughout the case, notwithstanding a prima facie case may have been made by the State." Said instruction was erroneous and misleading in that the prima facie evidence rule therein set out is improper if based on Section 3365 of the Revised Statutes 1919, because said section is unconstitutional beyond the power of the Legislature to enact. It contravenes subsection 17 of Section 53, Article 4, Constitution of Missouri, which provides "that the General Assembly shall not pass any general or special law: . . . (17) regulating the practice of the jurisdiction of, or changing the rules of evidence in any judicial proceeding," etc. Const. of Mo., Art. 4, Sec. 53, subsec. 17; R. S. 1929, p. 97. Section 3365, Revised Statutes 1919, page 1170 is unconstitutional because it contravenes Section 27 of Article 12 of the Constitution of Missouri, Revised Statutes 1929, page 154, in that said section of the Constitution limits the Legislature's defining the nature of, and punishment for the crime set out in said section of the Constitution, and did not authorize the Legislature to fix the mode of proof of defining the rules of evidence, but by necessary implications denies the Legislature such right. Art. 12, Sec. 27, Const. of Mo.; R. S. 1929, p. 154. The court erred in giving such instruction because the prima facie case ceases to exist when evidence is offered pertaining to a presumption. Baily v. Baily, 11 S.W.2d 1026. The prima facie case based upon the presumption of the subsequent failure of the bank, is not alone sufficient to sustain a conviction. State v. Buck, 120 Mo. 496; State v. Rector, 23 S.W. 1074. The instruction has so commingled abstract rules of law that it is misleading. By said instruction the burden of proof was shifted to the defendant to show that the bank was not in failing circumstances on May 1, 1930, and misleads the jury to take the view that the presumption of defendant's innocence did not avail until he proved his innocence. State v. Walser, supra.

Stratton Shartel, Attorney-General, Edward G. Robison, Assistant Attorney-General, A.O. Kamp and A.H. Juergensmeyer for respondent.

(1) Under Point 4 the defendant assigns as error that Section 3365, R. S. 1919, now Section 4116, R. S. 1929, is unconstitutional, and especially the proviso providing that the failure of any such bank or banking institution shall be prima facie evidence of the knowledge on the part of any such officer that the same was insolvent or in failing circumstances when the money was received on deposit. Defendant contends that said section violates Section 27 of Article 12 of the Constitution of the State of Missouri. This provision of the Constitution provides "It shall be a crime, nature and punishment of which shall be prescribed by law, for any president, director, manager, cashier or other officer of any banking institution, to assent to the reception of deposits, or the creation of debts by such banking institution, after he shall have had knowledge of the fact that it is insolvent, or in failing circumstances. . . ." The defendant contends that Section 4116, supra, exceeds the power granted to the Legislature by said section of the Constitution, and further contends that said Section 4116 is unconstitutional in that it violates Section 53, subdivision 17 of Article 4 of Constitution of Missouri, in that it attempts to regulate the practice and change the rules of evidence in a judicial proceeding. Section 53 of Article 4 concerns special and local laws and contains thirty-three subdivisions. Subdivision 17 of said section prohibits the passage of any special and local laws regulating the practice or jurisdiction of, or changing the rules of evidence in any judicial proceeding. The proviso to Section 4116, R. S. 1929, is not a local law, but applies alike to all who come within the provisions of the section. Ex parte Wilson, 48 S.W.2d 921. Therefore, in our opinion, Section 53, subdivision 17 of Article 4 of the Constitution is not relevant and has no bearing on the point raised by the defendant. Section 4116, R. S. 1929, including the proviso, has been held constitutional in all respects by the decisions of this court, and the constitutionality of like provisions has been upheld in other states. "The Legislature has power to enact, in criminal cases, that where certain facts have been proven, they shall be prima facie evidence of the main fact in question, if the facts proven have some fair relation to, or natural connection with, the main fact. There is no vested right to the rule of evidence that everyone shall be presumed innocent until proven guilty, so that the Legislature cannot make the doing of certain acts prima facie proof of guilt." This doctrine is supported by the decisions of our State and elsewhere. State v. Buck, 120 Mo. 487; State v. Sattley, 131 Mo. 492; State v. Darrah, 152 Mo. 522; State v. Salmon, 216 Mo. 524; Yee Hem v. United States, 268 U.S. 178, 69 L.Ed. 904; Hawes v. Georgia, 258 U.S. 1, 66 L.Ed. 431; 6 R. C. L. Constitutional Law, Secs. 457-461; 12 C. J. 1205, sec. 979; 20 A. L. R. 921. (2) We assert that under the law and the evidence, in our opinion, this court will not be warranted in holding that the evidence in this case is insufficient to sustain the judgment and the sentence. State v. Beaghler, 18 S.W.2d 426; State v....