State v. Traylor

Decision Date04 December 1911
Docket Number15253
Citation56 So. 521,100 Miss. 544
CourtMississippi Supreme Court
PartiesSTATE v. E. B. TRAYLOR

APPEAL from the circuit court of Simpson county. HON. W. H. HUGHES Judge.

E. B Traylor was indicted for receiving money on deposit while acting as cashier of a bank, knowing of the bank's insolvency. From a judgment sustaining a demurrer to the indictment the state appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Carl Fox, assistant attorney-general, for appellant.

The fourth ground of the indictment:

"The said supposed indictment does not charge that said bank was conducting the business of receiving on deposit the money or other valuable things or such persons as the president manager, cashier, teller, assistant, clerk, or other employee or agent of any bank or broker's office or establishment but instead charges that the bank was engaged in the business of receiving money and other valuable things of other persons."

The statute uses the adjective "such" as qualifying persons from whom it is a crime to receive deposits under the circumstances named. The only persons which are referred to in the statute before the phrase "such persons" is used, are the "president, manager, cashier, teller, assistant, clerk, or other employee or agent of any bank," etc. This section was brought forward from the Code of 1892, section 1080 (Code 1880, section 2814), without change in a single word except the mere inadvertent substitution of "such" for "other." Even if this section had been first enacted when the Code of 1906 became the law, it would be apparent upon reading the whole section that the word "such" was simply an error. The intention is, obviously, to protect the public--the depositors generally patronizing banks, broker's offices, and other establishments "conducting the business of receiving on deposit the money or other valuable things of . . . persons." The obvious purposes of the statute would be defeated, and it would be an absurdity, if it should be construed as applying only to those banks, brokers' offices, and other establishments "conducting the business of receiving on deposit the money or other valuable things" of the officers, agents, and employees of such institutions. Under that construction, the cashier, or even a mere agent or assistant would be under the necessity of informing the president or manager of the institution for which he worked, of its insolvency, when such president or manager offered to deposit his money therein, and would be guilty of no crime unless he had informed such person of that which he already knew. The court will correct such error by construction. See 2 Lewis Sutherland's Statutory Construction (2 Ed.), page 795, section 410 (260), and the cases cited in the notes.

In Earhart v. State, 67 Miss. 325, the act of March 9, 1888 (Laws of 1888, chapter 54, page 89), was construed by this court. That was entitled "An act to amend section 2985 of the Code of 1880, as refers to carrying concealed weapons." Section 2985 of the Code of 1880 was, so far as the question is concerned, in part as follows:

"Any person not being threatened with, or having good and sufficient reason to apprehend an attack, or traveling (not being a tramp), or setting out on a journey" shall be guilty of a misdemeanor if he carries certain concealed weapons.

Section 5, of chapter 54, of the act of 1888, amended that part of section 2985, which I have quoted, by striking out the words "or having good and sufficient reason to apprehend an attack." Thus, as amended, section 2985, of the Code of 1880, denounced as a crime the carrying of certain concealed weapons by "Any person not being threatened with, or traveling (not being a tramp), or setting out on a journey," etc. Judge Campbell, delivering the opinion said:

We must hold, either that the legislature, in amending section 2985, of the Code, by an act approved March 9, 1888, nullified the section by making it senseless and uncertain, so as to be unenforceable, or that it committed a clerical mistake in striking out two words more than was intended, viz., the word an attack." The latter is the more probable, and to read the section as amended, retaining those two words, will accomplish what was manifestly the legislative purpose, and leave the law in force. We, therefore, adopt that view, and under it the section as amended will be read, "any person, not being threatened with an attack . . . who carries concealed, etc." See the case of Bobo v. Board of Commissioners, 46 So. 819, 92 Miss. 792. The principle of that case, it seems to me, is exactly applicable to the case at bar.

May & Sanders, for appellee.

A diccussion of the various grounds of demurrer seriatim would perhaps needlessly protract this brief and we can put the court in possession of our views, adopted by the trial court, by devoting the argument to four general propositions.

1st. The statute as written clearly defines an offense.

2nd. The indictment is not written in the language of the statute.

3rd. Synonymous words with those in the statute are not employed in the indictment, and

4th. The statute must be strictly construed.

It is to be borne in mind that the offense defined by the statute is made such solely by force of the statute. In State v. Walker, 88 Miss. 592, our court speaking through Mayes, Judge, at page 596, says:

"The crime created by the statute can only be committed by the president, manager, etc., of a bank or broker's office or establishment conducting the business of receiving on deposit the money or other valuable things of other persons; but when it is shown that the person of the designated class is conducting the business, etc., a single act of receiving one deposit completes the crime and the crime is committed just as often as the act is repeated."

Continuing on the same page:

"Conducting the business is one of the necessary links in the chain of facts necessary to constitute the crime. A person not conducting the business cannot commit the crime. Therefore, as a matter of necessary description it must be alleged that the person charged was conducting the business."

Since the above decision was rendered section 1169, supra, superseded section 1089, Code 1892, which the court in the Walker case was construing, the change in the law being that if a member of several designated classes of officers or employees of a bank or broker's office or establishment conducting the business of receiving on deposit the money or other valuable things of such persons, whereas the prior statute extended the business of receiving on deposit the money or other valuable things to other persons. In other words, the law prior to October, 1906, when the Code of 1906 went into effect, prohibited the officer or employee of the bank conducting the business of receiving on deposit the money of individual depositors, from receiving a deposit from a member of the body of the people into an insolvent bank which he knew or believed to be insolvent, without informing the depositor of the insolvency; whereas the law which became effective in the present Code, prohibited the officer or employee of a bank conducting the business of receiving on deposit the money or other valuable things of officers or employees of banks or brokers' offices from receiving a deposit from such officer or employee of a bank or broker's office into his insolvent bank which he knows or believes to be insolvent, without informing such officer or employee of his bank's insolvency.

The contention of the state that the legislature intended the statute to protect the public would be untenable in any case unless the bank was engaged in the business of receiving deposits from the public. The former statute covers banks engaged in the business of receiving deposits from the public but the present statute limits the business to that of receiving deposits from depositors or employees of banks or broker's offices. Let us illustrate. Suppose the Bank of D'Lo did not receive deposits from anyone except representatives of banks and brokers' offices--suppose the Bank of D'Lo was insolvent and that appellee was the officer of the designated class conducting the business of receiving deposits from such representatives and that on the occasion in question he had received a deposit for such representative and at such time he knew or had good reason to believe the Bank of D'Lo was insolvent but did not inform such representative of such insolvency--then, manifestly under this statute, appellee would be guilty of a violation thereof. So then the statute makes complete sense, clearly defines a crime, and under certain facts, appellee could be indicted, tried and convicted; but as said by Justice Mayes in the Walker case, supra, "A person not conducting the business cannot commit the crime, therefore as a matter of necessary description it must be alleged that the person charged was conducting the business," and under this announcement of our court the indictment must charge in the language of the statute, or in synonymous words, that "the president, manager, cashier, teller, assistant, clerk or other employee or agent of any bank or broker's office or establishment conducting the business of receiving on deposit the money or other valuable things of such persons." It must charge that the Bank of D'Lo was conducting the business of receiving deposits of such persons as those designated, to-wit, president, manager, cashier, teller, assistant, clerk or other employee or agent of a bank or broker's office or establishment, and it must charge that the defendant, appellee, was conducting such business, neither of which allegations are anywhere to be found in this indictment. In other words, the...

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