State v. Summers

• Decision Date: 25 May 1928
• Docket Number: No. 27915.,27915.
• Parties: THE STATE v. FRANK L. SUMMERS, Appellant.
• Court: Missouri Supreme Court

6 S.W.2d 883

THE STATE v. FRANK L. SUMMERS, Appellant.

No. 27915.

Supreme Court of Missouri, Division Two.

May 25, 1928.

Appeal from Shelby Circuit Court. — Hon. V.L. Drain, Judge.

REVERSED AND REMANDED.

Matthews & Jones, Don R. Hughes, John D. Dale, H.J. Libby and W.L. Hamrick for appellant.

(1) The court, of its own motion, should have required the State to elect upon which count of the indictment it would proceed to trial, each count being a separate felony. The court was without power and jurisdiction to proceed until such elections had been made. State v. Presler, 290 S.W. 142; State v. Guye, 299 Mo. 366; State v. Burrell, 298 Mo. 678; State v. Link, 286 S.W. 12; State v. Carrigan. 210 Mo. 371. State v. Gohlson, 292 S.W. 27, is not in conflict. Nor should the State be permitted to delay election to close of State's case. Evidence of similar offenses is not admissible in proof of felony. State v. Davis, 292 S.W. 430; State v. Finley, 309 Mo. 545. (2) The court should have instructed the jury to find on only one count in the indictment. Cases supra. (3) There was no direct evidence in the case tending to show that defendant had any actual knowledge of the alleged insolvent condition of the bank and the court should have given an instruction on circumstantial evidence and defining the same. Where the evidence on a trial is wholly circumstantial, the jury should be instructed that they should not convict the accused unless the State has proved his guilt from the evidence, beyond a reasonable doubt by facts and circumstances, all of which are consistent with each other and with his guilt and absolutely inconsistent with any reasonable theory of his innocence. State v. Moxley, 102 Mo. 375; State v. Lackland, 136 Mo. 33; State v. Woolard, 11 Mo. 256; State v. Hill, 65 Mo. 87; State v. Bubbit, 215 Mo. 43; State v. Clark, 145 Iowa, 731; United State v. Chandler, 65 Fed. 308; United States v. Searcey, 26 Fed. 435; State v. Miller, 237 Mo. 501. (4) There is no evidence that the bank did in fact fail. The mere closing of a bank for audit is not sufficient to bring the bank within the purview of this statute.

North T. Gentry, Attorney-General, and David P. Janes, Assistant Attorney-General, for respondent.

(1) That the indictment charges the deposit to have been taken on April 9, 1923, and the proof shows it to have been taken on March 2, 1923 is not a fatal variance. The offense is shown to have taken place within three years of the returning of the indictment, and time not being of the essence, the variance is not harmful or fatal. Sec. 3737, R.S. 1919; State v. Glazebrook, 242 S.W. 928. (2) Defendant in his motion for new trial attacks Instruction 10, for the reason that there is no evidence that the Bank of Ethel failed. The court in his instruction very properly did not assume this fact, but required the jury to so find before they could consider a failure as being prima-facie evidence of defendant's knowledge of the bank's insolvency. The undisputed evidence is that this bank closed its doors on April 12, 1923, and was taken over by the Commissioner of Finance. State v. Lively, 279 S.W. 84. The bank remained closed for more than one month, re-opening on May 16, 1923. Defendant objected most strenuously to the introduction of testimony touching on the question of reorganization and his objections were sustained. He cannot now ask this court to indulge in the violent presumption that the remaining closed for more than one month was merely a temporary suspension of business and that no new capital, bond to secure creditors, or new notes were provided or other steps were taken to take care of the worthless paper in the note case and of the shortage in defendant's accounts as cashier. This question was submitted to the jury on ample evidence and under proper instructions and was duly decided.

HIGBEE, C.

Frank L. Summers, cashier of the Bank of Ethel, an incorporated banking institution located at the town of Ethel in Macon County, Missouri, was indicted on October 9, 1924, and charged in the first count with having received on deposit in said bank on April 9, 1923, $358.05, the money and property of W.L. Baker, after he, the said Summers, well knew that said bank was in failing circumstances and insolvent. The indictment is based on Section 3365, Revised Statutes 1919, and contains six other counts, each charging the receipt of a deposit of money on the same day. The counts are identical except as to the names of the depositors and the amounts of the several deposits.

The defendant was arrested in Kansas City, Missouri, on April 10, 1925. A change of venue was awarded to Shelby County, where the case was tried on February 15, 1926. The State dismissed as to the fourth count of the indictment. At the close of the evidence for the State the court sustained a demurrer to the third count, and overruled a demurrer to counts 1, 2, 5, 6 and 7, the ground of demurrer being that neither count stated facts sufficient to constitute a violation of the section of the statute.

The trial continued from day to day until February 19, when the jury returned a verdict finding the defendant guilty as charged in the first count of the indictment and assessing his punishment at two years in the penitentiary. The jury made no finding as to the remaining four counts of the indictment and, on motion of the defendant, the court discharged him as to those counts. The court sentenced the defendant according to the verdict and he appealed.

I. Appellant assigns error in that the court failed of its own motion to require the State to elect upon which one of the seven counts in the indictment it would place the defendant upon trial, and in not limiting the evidence offered by the Misjoinder: State to one count. No objection was made by the Election. defendant to the joinder of the seven counts. There was no motion to quash for misjoinder, nor to require the State to elect. The first objection to the misjoinder was made in appellant's assignment of errors in this court.

"The general rule is that duplicity in an information or an indictment is cured by verdict (State v. Nieuhaus, 217 Mo. 332, 117 S.W. 73; State v. Davis, 237 Mo. 237, 140 S.W. 902); but that it is error to refuse to sustain a demurrer or a motion to quash a duplicitous indictment or information when the attack is timely made and the error properly preserved for review." [State v. Flynn, 258 Mo. 211, 219, 167 S.W. 516.]

In State v. Brown (Mo.), 296 S.W. 125, the defendant was charged in separate counts with five distinct felonies. On page 127, Judge WHITE said:

"At the beginning of the trial a motion to elect would have been proper and should have been sustained. The defendant, however, at that time did not move to elect, but did object to the introduction of any evidence on that ground, and it was error in the court to overrule that objection. That error is not saved in the motion for new trial."

By going to trial without objection the error of misjoinder was waived. [Kelley's Crim. Law, sec. 200; 31 C.J. 883.]

II. For many years Summers had been cashier and chief executive officer of the Bank of Ethel. Following the year 1920, due largely to the financial depression then existing, Insolvency. that bank found itself possessed of a considerable amount of uncollectible paper. During the latter part of 1922, Summers expressed the desire to be relieved of his duties as cashier and caused the minutes of the board of directors to show his resignation as such. The directors, however, disavowed any knowledge of such entry in the minute record. Some effort was made by the president of the bank to secure a suitable man to take his place. Notwithstanding all this, Summers continued to act as cashier until April 5th or 6th, 1923, when he went to Chicago with a shipment of hogs. From Chicago he wrote to J.R. Heaton, president of the bank, as follows:

"I hand you herewith my resignation as cashier of the bank of Ethel, Missouri, which is already in effect. I have written Jose to come down at once and take my place. There seems to be something wrong with me, and I must have change and rest. Will see you later. "Yours truly, F.L. SUMMERS."

Following the departure of the defendant, the assistant cashier, Ben Jones, and a former cashier, Jose Bradley, referred to in defendant's letter, conducted the affairs of the bank for a few days, when a conference was held by the board of directors and, at the suggestion of Mr. Roscoe Gooding, a stockholder and banker in a neighboring town, the directors temporarily closed the bank and notified the Finance Department, requesting an examination of the condition of the bank. In due time bank examiners arrived and remained in charge of the bank until about the 15th day of May, at which time the bank reopened and, so far as the record in this cause shows, has been a going concern...