State v. Yates
| Decision Date | 23 May 1929 |
| Parties | STATE OF MISSOURI, RESPONDENT, v. STEVE YATES, APPELLANT. [*] |
| Court | Missouri Court of Appeals |
Appeal from Texas County Circuit Court.--Hon. W. E. Barton, Judge.
REVERSED AND REMANDED.
Judgment reversed and remandeds.
Hiett Lamar & Covert, Dale E. Moberly and C. H. Jackson for appellant.
(1) Section 3365, Revised Statutes 1919, creates three offenses two of which only are pertinent so far as this case is concerned: (a) For any officer of any banking institution to receive a deposit of money, or other valuable thing after he has knowledge that bank is insolvent or in failing condition. (b) For any officer to assent to reception of any deposit etc. The officer taking the deposit may not have known that bank was insolvent or in failing condition at time he took deposit, and he would be guilty of no offense in taking it, yet, if some other officer of the bank at time of receipt of deposit, knew bank was insolvent or in failing circumstances and acquiesced in reception of the deposit, he would be guilty of an offense under the statute. Ex parte Rickey, 100 P. 134, 135 Am. St. Rep. 651; State v. Lewis, 139 S.E. 386; State v. Sattley, 131 Mo. 464; State v. Wells, 134 Mo. 238. (2) The information by use of disjunctive "or" instead of conjunctive "and" does not charge any offense under the law of this state. State v. Bilyeu, 295 S.W. 104; State v. King, 285 S.W. 794; State v. Flynn, 258 Mo. 221; State v. Disbennet, 7 S.W.2d 386. (3) If an information states no offense, such defect is fatal at any stage of the proceedings, and is not waived by failure to take advantage thereof in trial court, but may be raised for first time in appellate court. State v. Levy, 119 Mo. 434; State v. Morgan, 222 S.W. 425; State v. Bilyeu, 295 S.W. 104; Sec. 3908, R. S. 1919; F. Rep., Vol. 266, No. 6850. (4) Mere showing of past due notes is no evidence of insolvency of said notes. State v. Walser, 1 S.W.2d 146; Akin v. Hull et al., 9 S.W.2d 688.
Raymond G. Corbett for respondent.
Defendant was charged as a director of the Piney River State Bank, with unlawfully taking, having and receiving or assenting to the reception on deposit in said bank of the sum of $ 27.50, after he knew that said bank was in failing circumstances. Upon a trial to a jury he was convicted and his punishment assessed at a fine of $ 100. Defendant appeals.
The first point made by defendant is that the information charges no offense. The information is based on section 3365, Revised Statutes 1919, the pertinent part of which, reads as follows: "If any president, director, manager, cashier or other officer of any banking institution . . . shall receive or assent to the reception of any deposit of money or other valuable thing in such bank or banking institution . . . after he shall had knowledge of the fact that such banking institution . . . is insolvent or in failing circumstances, he shall be deemed guilty of larceny." (Italics ours.)
It is defendant's contention that the statute creates two separate and distinct offenses i. e., one of receiving a deposit after knowledge of the bank's failing condition and the other of assenting to the reception of any deposit after such knowledge; that the information charged the defendant "unlawfully and willfully did have, take and receive or assent to the reception on deposit in the said Piney River State Bank." (Italics ours.) It is further contended that the information, by the use of the disjunctive "or" instead of the conjunctive "and," fails to charge any offense under the law of this state.
Our Supreme Court has held that an information which charges that defendant did unlawfully manufacture "hootch, moonshine or corn whiskey" (italic ours), states no offense. It is said that, "where the statute describes acts or offenses disjunctively, the indictment or information should charge them conjunctively, if they are not repugnant." [State v. Bilyeu, 295 S.W. 104, 105; State v. King, 285 S.W. 794; State v. Flynn, 258 Mo. 211, 167 S.W. 516; State v. Disbennett, 7 S.W. 386.] We think this case clearly falls within that rule.
Plaintiff suggests that in a misdemeanor action no demurrer to an information filed after an entry of a plea of not guilty (as here), will be considered unless the plea of not guilty be withdrawn, citing State v. Earll, 225 Mo. 537, 125 S.W. 467. But we understand the rule to be that where an information is fatally defective on its face, the objection thereto may be raised for the...
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