State v. Warner

• Decision Date: 10 December 1898
• Docket Number: 11159
• Citation: 60 Kan. 94,55 P. 342
• Parties: THE STATE OF KANSAS v. ALEXANDER WARNER
• Court: Kansas Supreme Court

55 P. 342

60 Kan. 94

THE STATE OF KANSAS v. ALEXANDER WARNER

No. 11159

Supreme Court of Kansas

December 10, 1898

Decided July, 1898.

Appeal from Cherokee district court; A. H. SKIDMORE, judge.

Judgment reversed.

Charles Stevens, county attorney, and Charles W. Smith, for The State.

W. B Glasse, and C. W. Trickett, for appellant.

OPINION

ALLEN, J.:

The appellant, Alexander Warner, was charged by the county attorney of Cherokee county with having accepted and received on deposit in the Baxter Bank money, and drafts circulating as money, when the bank was insolvent. It is alleged in the information that the Baxter Bank was a corporation and that Alexander Warner was its president, Ben. S. Warner vice-president, A. A. Warner cashier, and Russell E. Davis clerk and bookkeeper. All of these persons were jointly charged with receiving deposits knowing the bank to be insolvent. The appellant, on a separate trial, was convicted and sentenced on the first, fifth, seventh and tenth counts of the information, which contained eleven counts. The second, fourth, sixth, eighth and eleventh counts charged the appellant with being accessory to the receipt of deposits and the ninth charged him with having permitted and connived at the receipt of the same deposit which the seventh count charged him with having accepted and received. The jury found the defendant guilty on the third count, but as to this the court granted a new trial. The sentence was to confinement in the penitentiary for the term of one year on each of the counts on which he was convicted.

It is first contended that the banking act of 1891, under which the prosecution was instituted, was repealed by the new enactment of 1897, and that the saving clause is insufficient to authorize the commencement of a prosecution under the law of 1891. We have reached a conclusion adverse to this contention in the case of In re Taylor, ante, p. 87. It is unnecessary to restate in this case the reasons for that conclusion.

The next contention is that in certain counts of the information the defendant was charged with having received checks. It is said that section 16, chapter 43, Laws of 1891, under which the information was drawn, does not use the word "checks"; that there is a clear distinction in the law between a check and a draft; that the proof was of deposits of checks properly so denominated, and that the motion to quash the information as to these counts, because it did not state facts sufficient to constitute a public offense, should have been sustained. The distinction pointed out by counsel is between bills of exchange, properly so termed, and private checks. In Bouvier's Law Dictionary, Rawle's Revision, draft is thus defined: "An order for the payment of money drawn by one person on another. (1 Story 30.) It is said to be a nomen generalissimum, and to include all such orders. (Id., per Story, J.)" Worcester defines it: "An order by which one person draws on another for a certain sum of money, a check, a bill of exchange." In 5 American and English Encyclopedia of Law (2d ed.), 1029, it is said: "A check is a draft or order upon a bank or banking house, purporting to be drawn upon a deposit of funds, for the payment at all events of a certain sum of money to a certain person therein named, or to him or his order, or to bearer, and payable instantly on demand."

That the deposit of a check falls as clearly within the reason of the statute as deposits of other commercial paper circulating as money is too clear for argument. The legislature, having used a general term which includes within its ordinarily accepted meaning checks as well as other orders for the unconditional payment of money, must be held to have intended to make the receipt on deposit of checks circulating as money by the officers of insolvent banks equally criminal with the receipt of other currency. The word "check" is not used in section 16, chapter 43, Laws of 1891. It is used, however, in section 15, chapter 47, Laws of 1897, which covers the same subject-matter. It is contended that the new act shows a legislative construction of the old, and indicates that the legislature of 1897 regarded the prior act as defective in this particular. While this suggestion has some force, the real question is, What did the legislature of 1891 intend, and what does the language used include? It may be that in a prosecution under the last enactment, where notes, bills, checks and drafts are all named, the instrument received should be properly designated in the information, and that the charge must be proved as alleged; but where the word "check" is not found in the law, but the general term "drafts" is used, it must be held that averment and proof of the receipt of a check is sufficient.

The defendant moved the court to require the state to elect on which count it would rely for conviction. This motion was overruled, and it is strenuously insisted that this was error. The information charged five separate and distinct transactions with different persons, and the defendant has been sentenced to punishment on each of four different counts. It is insisted that the joinder of charges of distinct felonies in one information and forcing the defendant to trial on all of them is contrary to well-established principles of law. Counsel for appellant concede that the case of The State n. Hodges, 45 Kan. 389, 26 P. 676, is clearly opposed to their contention. It was there held:

"Several separate and distinct felonies may be charged in separate counts of one and the same information, where all the offenses charged are of the...