The State v. Burlingame
| Decision Date | 21 November 1898 |
| Parties | The State v. Burlingame, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Joseph D. Perkins, Judge.
Reversed and remanded.
William B. Skinner for appellant.
(1) A prosecution, conviction and sentence for the receiving of a bank deposit during the period of insolvency, is a bar to other prosecutions for acts occurring during the same period. Comm. v. Rockafellow, 2 Lackawana Legal News, 338. (2) The reception of deposits by a banker, during a given period of insolvency, is to be deemed and taken as but a single continuing offense, like that of embezzlement, by a servant or clerk, during a given period, or a prosecution for adultery or bigamy -- there can be no conviction, on a date anterior, to a former indictment for the same offense. People v. Cox, 65 N.W. 283; Snow v. U.S. 120 U.S. 274; Nielsen v. U.S. 131 U.S. 176; Crepps v. Durden, 2 Cowper 640; People ex rel v. Liscomb, 15 Stickler, 559; State v. Benham, 7 Conn. 414; State v. Fayetteville, 2 Murphy, 371; Wright v. State, 17 Tex. 152; Lorton v State, 7 Mo. 55. (3) The question as to whether the Bank of Commerce, of which defendant was president, on the twelfth day of May, 1893, on the twenty-ninth day of June, 1893, and on the tenth day of July, 1893, and between said dates, was insolvent and in failing circumstances, and whether defendant, as its president, had knowledge of and well knew such fact, were issues involved and submitted for judicial determination between the State and the defendant in the two former trials, and it was by the verdicts and judgments rendered, judicially ascertained, that the defendant, at the time of the reception of the deposit, to wit, July 7, 1893, did not know that said Bank of Commerce was in failing circumstances. This constitutes a complete answer on the part of defendant, to the charge in this indictment and constitutes an effectual bar to his prosecution thereunder. Duchess of Kingston Case, 20 Howell's State Trials, 355; Coffey v. U.S. 116 U.S. 436; Hunt v. State, 86 Ala. 604; Herera v. State, 34 S.W. 943; Moore v. State, 25 S.W. 1120; Comm. v. Ellis, 35 N.E. 773; Comm. v. Evans, 101 Mass. 25; Railroad v. U.S. 168 U.S. 48; Sly v. Hunt, 159 Mass. 151; State v. Cooper, 13 N. J. L. 361; Wilcox v. State, 6 Lea, 571; Scott v. U.S. Morris, 142; Hart v. State, 25 Miss. 378; Burns v. People, 1 Parker, 182; State v. Mikesell, 30 N.W. 474; Carson v. People, 36 P. 551. (4) Defendant's motion for discharge, because of continuances, should have been sustained. R. S. 1889, secs. 4222 and 4223; State v. Wear, 145 Mo. 162; State v. Cox, 65 Mo. 29. (5) The admission of the testimony of the witness Woodward, as to the declarations of defendant's wife, was reversible error. Hoffman v. Hoffman, 126 Mo. 493; State v. Willis, 24 S.W. 1008. (6) The court erred in admitting in evidence the certificate of incorporation of "Bank of Commerce, Springfield, Mo." This did not support the allegation of the indictment which charged the defendant with being the president of "Bank of Commerce," and as such received the deposit in question. The by-laws as well as the certificate of incorporation, shows the name of the bank to be "Bank of Commerce, Springfield, Mo.," not "Bank of Commerce." Hite v. State, 9 Yeager, 357. (7) The court committed error in admitting the evidence of Mrs. Horton and Mrs. Dickinson. Their deposits were made five months before the date of the Graham & Son deposit, and long before the bank is claimed to have been insolvent. It is apparent that the purpose of the State in offering the evidence was simply to make profert of these two unfortunate widows, as a basis for the unwarranted attack on the defendant, in the argument of the case to the jury, by the associate counsel for the state. (8) It was error for the court to refuse to permit the defendant to state whether or not his bank would have been forced to suspend had it not been for the panic. Aside from the fact that the bank did suspend payment to its depositors and make an assignment on July 11, there is nothing to show that its assets were not sufficient to meet its liabilities.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) Where several deposits are received from different persons by a banker with a knowledge of its being insolvent and in a failing condition at the time, each transaction within and of itself constitutes a separate offense within the scope and meaning of our statutes. (2) In order for a former prosecution to be a good and valid plea in bar to a subsequent trial, it must appear that all the constituent elements in the one were involved in the other and were directly and expressly adjudicated, and unless it be apparent that the defendant was previously tried for identically the same offense as the one for which he is charged, the plea of former adjudication or former jeopardy, will not be credited. State v. Andrews, 27 Mo. 267; State ex rel. v. James, 82 Mo. 509; R. S. 1889, sec. 3581; State v. Samuels, 25 Tex.App. 538; State v. Ashton, 31 Tex. Crim. Rep. 482; State v. Reddick, 31 Tex. Crim. Rep. 537; State v. Winn, 82 Wis. 574; Comm. v. Roby, 12 Pick. 496; Cragie v. Hadley, 99 N.Y. 131; Bank v. Walker, 130 U.S. 267; Martin v. Webb, 110 U.S. 7. (3) The court did not commit error in refusing to discharge upon his motion therefor. State v. Billings, 140 Mo. 194; State v. Nugent, 71 Mo. 147; State v. Marshall, 115 Mo. 383. (4) Woodward's evidence was admissible to show corruption, fraud and guilty knowledge. Being made in defendant's presence and in a conversation in which he was engaged, and not denied by him, he is burdened with the responsibility of whatever force or effect the jury, in connection with other testimony, might have seen proper to give it. (5) By instruction number 1 the jury were told what would constitute prima facie evidence of insolvency and guilty knowledge, following it up with a clear explanation of the term, and then instructed upon reasonable doubt. In addition to this the court gave instruction number 1, offered by defendant, which involved the same principle as contained in instruction number 7, offered and refused. State v. Berkley, 92 Mo. 53; State v. Sattley, 131 Mo. 491.
Defendant was indicted in the criminal court of Greene county for receiving from Graham & Son, a firm doing business in the city of Springfield, a deposit of $ 260 in money, into the Bank of Commerce located in said county, of which he was at the time president, knowing at the time that the bank was insolvent or in failing circumstances.
The indictment is in two counts, in the first of which defendant is charged with having received the deposit as president of the bank, and in the second count with assenting thereto, knowing at the time that the bank was insolvent and in failing circumstances.
At the July term, 1896, of said court, on application of defendant the venue of said cause was changed to the circuit court of Jasper county.
After the case had been transferred to the Jasper county circuit court, and on the twelfth day of July, 1897, the defendant filed his plea in bar to the prosecution under the indictment herein, and asked to be discharged. The plea in bar was based upon the fact that defendant had, upon two separate occasions, prior to the finding of this indictment, been indicted, tried and acquitted upon a similar charge for receiving money on deposit in said bank while the same was in a failing condition, and that inasmuch as the crime of receiving money on deposit under circumstances such as are found in this case was a continuing offense, his having been previously tried and acquitted worked a complete defense to any further prosecution.
The prosecuting attorney, on behalf of the State, filed a demurrer to the plea in bar, which was by the court sustained. The defendant then filed a motion to be discharged upon the ground that more than three terms of court had passed upon which the case was continued and that said continuances were had at the instance of the State and not at the instance of the defendant.
There had been no continuance by the State of this case, but the continuances by the State relied upon by defendant as entitling him to his discharge were under other indictments for the same offense which had been nolled by the State.
This motion was overruled.
Before the case was submitted to the jury the State entered a nolle prosequi to the second count in the indictment.
Under the evidence and instructions, defendant was found guilty under the first count in the indictment and his punishment fixed at five years' imprisonment in the penitentiary. He appeals.
The evidence showed that defendant was one of the original incorporators of the Bank of Commerce at Springfield, Missouri, which commenced business on the first day of October, 1890, and from the time of its organization was its president and one of its directors. That on the seventh day of July, 1893, he received on deposit in said bank from Graham & Son, a firm doing business in said city, the sum of $ 260, knowing at the time that the bank was insolvent and in failing circumstances. That the bank closed its doors and ceased to do business on the eleventh day of July, 1893.
The court, at the request of the State, gave the following instructions, to wit:
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