State v. Smith

• Decision Date: 07 June 1909
• Citation: 120 S.W. 156,91 Ark. 1
• Parties: STATE v. SMITH
• Court: Arkansas Supreme Court

120 S.W. 156

91 Ark. 1

STATE v. SMITH

Supreme Court of Arkansas

June 7, 1909

Appeal from Ouachita Circuit Court; George W. Hays, Judge; affirmed.

Affirmed.

Hal L Norwood, Attorney General, and C. A. Cunningham, Assistant for appellant.

The ruling on the demurrer is the only question raised by the State's appeal, as defendant did not appeal. Kirby's Dig. § 1225; 44 Ark. 25. The description in the indictment is sufficient to put defendant on notice as to the offense charged, and enable him to plead former acquittal or conviction. 26 Ark. 332; 27 Id. 498; 34 Id 159; 98 N.C. 773; 71 Id. 176. The meat of the offense is accepting the check as a deposit, and it makes no difference to whose credit it was deposited; nor does its date cut any figure. It is evident the check was indorsed. 79 Ia. 432; 65 N.W. 309; 6 N.E. 123; 7 Id. 763; 107 Id. 94.

The indictment sets out every fact necessary under § 1814, Kirby's Dig. 163 Pa.St. 142.

OPINION

MCCULLOCH, C. J.

The circuit court sustained a demurrer to an indictment in the following form (omitting caption and formal parts): "The said defendant, on the 3rd day of October, 1904, in Union County, Arkansas, then and there being the cashier of the Bank of El Dorado, said Bank of El Dorado being a corporation, with its home office located in the town of El Dorado, Union County, Arkansas, did unlawfully, wilfully, knowingly and feloniously accept and receive on deposit in said Bank of El Dorado, of and from G. D. Yocum, a certain bill of exchange for $ 974.61, commonly called and known as a check, which was signed and drawn by J. R. Burns and payable to Miss Bobbie Yocum, said bill of exchange so commonly called and known as a check aforesaid, then and there being accepted and received on deposit in said Bank of El Dorado by the said defendant in lieu of money, the said Bank of El Dorado then and there being insolvent, and the said E. H. Smith then and there being the cashier of said bank, and well knowing at the time he so accepted and received on deposit said bill of exchange, so commonly called and known as a check as aforesaid, that said Bank of El Dorado was then and there insolvent."

The points of attack upon this indictment are set forth in the demurrer as follows:

"1st. The date of said check is not stated, nor does the indictment allege that said date was unknown to the grand jury.

"2nd. The name of the bank, corporation, firm, company or person on whom said check was drawn by J. R. Burns is not stated, nor does the indictment allege that same was unknown to the grand jury.

"3rd. The indictment fails to state to whose account said check was deposited by the said G. D. Yocum, or for whose account it was accepted and received by the defendant.

"4th. The indictment fails to state whether the check referred to therein was accepted by the defendant as cashier of the Bank of El Dorado as a general deposit, thereby becoming a part of the funds of said bank, or on special deposit, as bailee of the owner of same.

"5th. The indictment fails to state whether the check referred to therein was indorsed by Miss Bobbie Yocum to G. D. Yocum, or whether the said G. D. Yocum was the owner of said check, and as such deposited same, or whether in the deposit of said check he acted as the agent of the payee or other person.

"6th. The indictment fails to allege that the check referred to therein circulated as money, as required by the statute."

The statute under which the indictment is preferred reads as follows: "No bank shall accept or receive on deposit, with or without interest, any money, bank bills or notes, or United States treasury notes, gold or silver certificates, or currency, or other notes, bills or drafts, circulating as money, or currency, when such bank is insolvent; and any officer, director, cashier, manager, member, party or managing party of any bank who shall knowingly violate the provisions of this section, or be accessory to, or permit or connive at the receiving or accepting on deposit of any such deposit, shall be guilty of a felony, and upon conviction thereof shall be imprisoned in the State Penitentiary not less than three years and not more than five years." Act Feb. 12, 1901, Kirby's Digest, § 1814.

We are of the opinion that the first and second grounds set forth in demurrer are not well taken. The check...