State v. Walker
| Decision Date | 11 June 1906 |
| Citation | 41 So. 8,88 Miss. 592 |
| Court | Mississippi Supreme Court |
| Parties | STATE OF MISSISSIPPI v. JOSIAH S. WALKER |
FROM the circuit court of Washington county, HON. A. MCC. KIMBROUGH, Judge.
Walker the appellee, was indicted for receiving money on deposit in his bank, the Merchants & Planters Bank of Greenville, he being the president thereof, knowing the bank to be insolvent, without disclosing its financial condition to the depositor, in violation of Code 1892, § 1089. Appellant's demurrer to the indictment was sustained by the court below. From a judgment discharging the defendant the indictment being held insufficient, the state appealed to the supreme court. The facts are stated in the opinion of the court.
R. V Fletcher, assistant attorney-general, and R. N. Miller, for appellant.
The authorities cited by the defendant in reference to the practice condemned by this court, of joining separate and independent felonies in separate and distinct counts in the same indictment, have no sort of application here for the reason that each count charges the same identical single offense.
The only requisite of a good indictment for any offense is provided by sec. 26 of the constitution. This requires that it shall "inform the accused of the nature and the cause of the accusation against him." When the indictment complies with this requisite, so that it informs the accused of the nature and cause of the accusation against him, it is sufficient so far as its structure is concerned.
The object of this constitutional requirement is that the defendant shall be informed of all the essential elements necessary to constitute the crime charged against him in order that he may prepare his defense, and in order that he may plead his acquittal or conviction to a second charge for the same offense.
Those are the reasons why he is required by the constitution to be informed of the nature and cause of the accusation against him. Noonan v. State, 1 Smed. & M., 562; Murphy v. State, 24 Miss. 590; Gerrard v. State, 25 Miss. 469; Riggs v. State, 26 Miss. 51; Norris v. State, 33 Miss. 373; Newcomb v. State, 77 Miss. 383; Williams v. State, 42 Miss. 328; Riley v. State, 43 Miss. 397; Thompson v. State, 51 Miss. 353.
To determine whether this indictment complies with the constitutional requirements, let us analyze the statute defining the crime charged. The person charged must be an officer (of the character named) of the bank. The bank must have been engaged systematically in conducting a "business" of receiving money, etc., on deposit.
It must not be a single act of receiving one deposit, but the bank must be conducting a business of receiving deposits. It will be noted that this essential element required by the statute to be charged makes this a continuing or cumulative crime. Such officer must receive the deposits into a bank that is insolvent. The officer must know that it is insolvent or have good reason to believe it to be insolvent. The deposits must be received, without informing the depositor of the insolvent condition of the bank.
These are the five essential elements necessary to be charged in order that the accused may be informed of the nature and cause of the accusation against him.
Percy & Campbell, for appellee.
The statute imposes a penalty against receiving any deposit. The receiving of every deposit is a separate offense; the statute does not pronounce a penalty against keeping a bank open, or continuing to receive deposits, and does not provide for continuous offenses, but makes the receipt of every deposit an offense, and that the offense is not such as is chargeable with a continuando as is used in these counts. A continuando is used only where offenses are continuous, as in the case of a continuous bigamous marriage, a continuous nuisance, keeping a bawdy house, keeping a dramshop without license, doing a business without license, and many other cases of like character. These counts are drawn as if this offense was a continuous one, and counsel for the state so contend. In Wharton's Crom. Plead. & Prac., sec. 125, it is said:
Receiving deposits under this statute is not such offense as those described in Wharton, for each deposit is a distinct offense--that is, the receiving of each deposit--whereas a bigamous marriage, or a continuous nuisance, or keeping a dramshop without license, is a continuous offense, for there is never a cessation. The pleader in drawing this indictment seemed to proceed upon the theory that the offense contained in the statute was a continuous offense.
Argued orally by R. N. Miller, for appellant, and by Leroy Percy, for appellee.
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