State v. Thompson
| Decision Date | 19 October 1933 |
| Docket Number | No. 31687.,31687. |
| Citation | 64 S.W.2d 277 |
| Parties | THE STATE v. L.E. THOMPSON, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Lewis Circuit Court. — Hon. E.C. Hilbert, Special Judge.
REVERSED AND REMANDED.
Mills & Jayne, H.S. Rouse and Brown & Gibbons for appellant.
(1) The information charged that defendant did receive on deposit "a certain valuable thing and right of action, to-wit, a check" of a certain description and for a certain sum of money and then proceeded to say that the defendant cashed the check and paid a part of the proceeds to the person who presented the same and accepted the balance of the proceeds as a deposit in the bank. Now while it is a crime to receive either money or some valuable thing on deposit it is not permissible in a criminal case for the information to indefinitely allege the facts in such a way that no one can tell what the State might prove to support the charge. The defendant was entitled to be told by the information with what he was charged with receiving on deposit and the motion to quash the information should have been sustained. Sec. 22, Art. II, Const. of Mo.; State v. Sheets, 289 S.W. 553. (2) Extrajudicial admissions of the defendant are never competent to prove the corpus delicti or any necessary element of the corpus delicti. Until the corpus delicti has been proven by independent evidence admissions of the defendant are incompetent. State v. McQuin, 39 S.W. (2d) 523; State v. Capotelli, 316 Mo. 256; State v. Young, 237 Mo. 177. (3) The various judgments rendered against the Commissioner in liquidation of the Bank of Willmathsville by the Circuit Court of Adair County, Missouri, and which the court admitted in evidence were hearsay. They tended to prove no issue in the case, but on the contrary tended to confuse the jury and were prejudicial. State v. Abney, 311 Mo. 700. (4 The insolvency of the bank at the time of the alleged deposit was not established and inasmuch as there was no showing that the bank ceased operations because of a failure, there was nothing from which a prima facie case was made on behalf of the State. The demurrer to the evidence should have been sustained. (5) Instruction 1 given on behalf of the State purported to cover the entire case and to direct a verdict of guilty if the jury found a given statement of facts. The same should have likewise directed a verdict of not guilty if the jury did not find the facts. State v. Dougherty, 287 Mo. 90. (6) That the assets of a bank depreciate when it ceases operation as a going concern and goes into liquidation. State v. Summers, 6 S.W. (2d) 883; State v. Sanford, 297 S.W. 73.
Stratton Shartel, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.
(1) The information is sufficient. It contains all necessary averments required to properly charge the cashier of a banking institution with the reception of a deposit of a valuable thing in such banking institution after he had knowledge of the fact that such banking institution was insolvent and in failing circumstances, and fully informs the defendant as to the charge he must meet. The motion to quash was, therefore, properly overruled. Sec. 4116, R.S. 1929; State v. Buck, 120 Mo. 487; State v. Buck, 108 Mo. 622; State v. Lively 311 Mo. 428; State v. Sanford, 317 Mo. 873; State v. McClure, 31 S.W. (2d) 42. An information under Section 4116, supra, is not subject to the objection of repugnancy, because it concludes with the words "did steal, take and carry away." State v. Sattley, 131 Mo. 485. (2) The crimes denounced by Section 4116, supra, are statutory crimes, and this section was enacted to carry out the constitutional mandate, Section 27 of Article XII of the Constitution of Missouri, which provides that, "It shall be a crime, the nature and punishment of which shall be prescribed by law, for any ... cashier ... 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; ..." Fusz v. Spaunhorst, 67 Mo. 265; Cummings v. Winn, 89 Mo. 56; Ivie v. Bailey, 318 Mo. 483; State v. Sattley, 131 Mo. 464; State v. Meininger, 312 Mo. 525. (3) Appellant's assignment of error contained in paragraph 32 of his amended motion for new trial is as follows: "The court erred in admitting in evidence over the objection and exception of the defendant, the records of the Circuit Court of Adair County, Missouri, showing the rendition of judgments against the Bank of Willmathsville, in the hands of the Commissioner of Finance of the State of Missouri, for the reasons — (1) because said judgments were rendered long after the date of the reception of the alleged deposit, (2) because defendant was not a party to the suits in which judgments were rendered, had no opportunity to be heard in said causes, or to meet witnesses therein face to face, (3) because the rendition of said judgments long after the date of the alleged deposit, was incompetent for any purpose, was prejudicial to the rights of the defendant and did not tend to show the solvency or insolvency of the bank on the date of said alleged deposit." The fact of insolvency is one in its own nature, in most cases, hardly susceptible of direct or positive proof. The fact, then, must generally be proved by circumstantial or presumptive evidence — by the proof of other facts from which insolvency is to be inferred. Hudson v. Bauer Grocery Co., 105 Ala. 200; Brown v. Montgomery, 20 N.Y. 287; Bank of Monroe v. Gifford, 79 Iowa, 311; Wills v. Claffin, 92 U.S. 140; Commonwealth v. Ensign, 228 Pa. 403; Pullman Palace Car Co. v. Lawrence, 74 Miss. 807; State v. Caldwell, 79 Iowa, 438; State v. Beach, 147 Ind. 93; Rochester Printing Co. v. Loomis, 45 Hun, 101; Bank of State of New York v. So. Natl. Bank, 170 N.Y. 6; Cravens v. Duncan, 55 Ind. 350; Cree v. Bank, 141 Iowa, 234; Johnson v. Burks, 103 Mo. App. 229. Full proof of the corpus delicti, independent of defendant's confession, is not required where there are slight corroborating circumstances. State v. Wright, 319 Mo. 51; State v. Morro, 313 Mo. 105; State v. Cantrell, 6 S.W. (2d) 841; State v. McGuire, 39 S.W. (2d) 524. (a) Hearsay evidence is admissible to prove the existence of a banking company or corporation. Sec. 3688, R.S. 1929; State v. Fitzsimmons, 30 Mo. 239; State v. Moreaux, 254 Mo. 412. (b) Or its incorporation may be shown by oral testimony. State v. Taylor, 274 S.W. 49; State v. Cheek, 63 Mo. 365. (c) The corporate existence of the bank may be shown by recognition and acting as such corporation when it comes collaterally in question in a criminal prosecution. State v. Tucker, 84 Mo. 25; State v. Fuller, 96 Mo. 167.
The defendant was charged by information in the Circuit Court of Adair County with receiving for deposit in the Bank of Willmathsville, a state banking institution of which he was cashier, a check for $460.28 on August 24, 1928, when he knew the bank was insolvent and in failing circumstances, in violation of Section 4116, Revised Statutes 1929. The case was sent on change of venne to Lewis County in the same circuit, and there, a further application being filed under Section 3648, Revised Statutes 1929, disqualifying the circuit judge, the Hon. E.C. Hilbert was chosen by agreement as special judge. The trial resulted in a conviction of the defendant. His punishment was assessed by the jury at imprisonment in the penitentiary for two years, and he appeals from the judgment and sentence on that verdict.
The defendant stood on his demurrer to the State's evidence. The bank and nearly all the bank records were destroyed by fire on August 29, 1928, five days after the reception of the deposit, and was closed by order of its board of directors the next day, August 30. Most of the assignments of error on this appeal complain of the insufficiency of the evidence and of the admission of evidence offered by the State in these exigent circumstances to show the financial condition of the bank at the time — its assets and liabilities. The information, also, is challenged and some of the instructions are assailed.
The evidence tending to show the financial condition of the bank was, in general, along this line. As soon as the ruins of the bank had cooled sufficiently J.B. Norris, state bank examiner for that district, searched them and took such papers and records as were recovered to the Commercial State Bank at Kirksville, then in process of liquidation in the hands of L.L. Vaughn, special deputy finance commissioner. The principal thing of value found in the vault was the note case with its contents. There were also some old books and records, some customers' papers charred by the fire, and in the money safe, which appeared to have been left partly open, pennies to the amount of $2.82. Also, Mr. Norris found some checks and deposit slips which appeared not to have been entered on the bank books. There was, however, no deposit ledger.
The defendant reported to his board of directors and to the authorities that he was held up and forcibly taken from the bank by robbers at the time of the fire. Mr. Norris made an inventory of all assets and liabilities of the bank, as far as he could determine them at the time and filed a triplicate copy thereof with the State Finance Department and another with Mr. Vaughn, deputy commissioner. This inventory was introduced in evidence, marked plaintiff's Exhibit 17. It was as follows:
ASSETS
Loans ................................................ $58,039.86
Overdrafts ...........................................
Banking house ........................................
Furniture and fixtures ...............................
Other real estate ....................................
Cash ................................................. 2.82
Due from Farmers State Bank, Greentop, Mo.
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