The State v. Darrah

• Citation: 54 S.W. 226,152 Mo. 522
• Parties: The State v. Darrah, Appellant
• Decision Date: 05 December 1899
• Court: United States State Supreme Court of Missouri

54 S.W. 226

152 Mo. 522

The State v. Darrah, Appellant

Supreme Court of Missouri

December 5, 1899

Appeal from Jackson Criminal Court. -- Hon. John W. Wofford, Judge.

Reversed and remanded.

Warner Dean, Gibson & McLeod and Gage, Ladd & Small for appellant.

(1) The court erred in refusing to give instruction numbered 4, asked by the defendant. The general rule in support of which the citation of authorities is unnecessary, is that hearsay evidence is incompetent to establish any specific fact which in its nature is susceptible of being proven by witnesses who can speak from their own knowledge. An examination of the evidence in this case, and notably the testimony of Mark Coppinger and John W. Moore, witnesses on behalf of the State, will convince the court that in giving an opinion as to the value of a very considerable portion of the assets of the bank regarding which they testified, their opinions were based exclusively upon what they had learned by corresponding with parties, parties even in some cases that they did not know. To illustrate, the witness, Mark Coppinger, testified that the value of 60 shares of the stock of the First National Bank of Clay Center, Kansas, was sixty cents on the dollar, that he had arrived at the value of this stock by correspondence. The rule is that statements or declarations of third persons, not made in the presence of, or authorized by the party to be affected, are hearsay unless they are such as to constitute a part of the res gestae. Cable v McDaniel, 33 Mo. 363; Fouque v. Barges, 71 Mo 389; Dunn v. Altman, 50 Mo.App. 231. (2) The court erred in refusing instruction numbered 10, asked by defendant. This instruction has been approved time and time again by this court and should have been given. St. Louis v. Rankin, 95 Mo. 192; Hull v. St. Louis, 138 Mo. 626; State v. Lowe, 93 Mo. 547. (3) The court erred in refusing to give instruction numbered 11, asked by defendant. This instruction follows as closely as can be an instruction, not only in the letter, but in the spirit of the opinion of this court in the case of State v. Buck, 120 Mo. 495.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) Instruction numbered 11, offered by defendant, was properly refused. Even though this instruction may embody a correct principle of law, yet no error was committed on account of refusing to give it to the jury. By instructions 5, 12, 13 and 14 given, it becomes unnecessary to further instruct upon the proposition involved in the refused instruction. State v. Burlingame, 146 Mo. 207. These instructions are sufficient to admonish the jury that it devolves upon the State to prove defendant's guilt and embodies every principle, so far as applicable to this case, contained in instruction numbered 11. (2) Instruction numbered 6 is in good form and under the ruling of this court has been upheld. But be that as it may, it does not constitute reversible error although offered in the manner stated. State v. Pratt, 121 Mo. 751. (3) Defendant's instruction numbered 4 was properly refused. Witnesses Coppinger, Moore and Holden properly qualified themselves so as to testify to the value of the assets of the bank on the tenth day of July, 1893, the time the assignment was made and the day on which the deposit in question was received. As such witnesses they had the right to testify as to the value of such assets in bulk. Such evidence is admissible as a matter of necessity. Seyforth v. Railroad, 52 Mo. 452; Dalzell v. Davenport, 12 Iowa 437; Clark v. Baird, 9 N.Y. 183; Ferguson v. Stafford, 33 Ind. 162; Railroad v. Windsor, 51 Ind. 238; Wharton on Law of Evid. sec. 449; Terry v. McNeil, 58 Barb. 141; Chaffee v. U. S. 18 Wall. 542.

BRACE J. Sherwood, J., absent.

OPINION

In Banc.

BRACE, J.

-- By section 27, article XII of the Constitution it is provided that: "It shall be a crime, the nature and punishment of which shall be prescribed by law, for any president, director, manager, cashier or other officer of any banking institution, to assent to the reception of deposits, or the creation of debts by such banking institution, after he shall have had knowledge of the fact that it is insolvent, or in failing circumstances; and any such officer, agent or manager shall be individually responsible for such deposits so received, and all such debts so created with his assent."

By section 3581, Revised Statutes 1889, passed in pursuance of this constitutional mandate (State v. Kelsey, 89 Mo. 623, 1 S.W. 838), it is provided: "If any president, director, manager, cashier or other officer of any banking institution, or the owner agent or manager of any private bank or banking institution doing business in this State, shall receive or assent to the reception of any deposit of money or other valuable thing in such bank or banking institution, or if any such officer, owner or agent shall create or assent to the creation of any debts or indebtedness by any such bank or banking institution, in consideration or by reason of which indebtedness any money or valuable property shall be received into such bank or banking institution, after he shall have had knowledge of the fact that such banking institution or the owner or owners of any such private bank is insolvent or in failing circumstances, he shall be deemed guilty of larceny, and upon conviction thereof shall be punished in the manner and to the same extent as is provided by law for stealing the same amount of money deposited, or valuable thing: Provided, that the failure of any such bank or banking institution shall be prima facie evidence of knowledge on the part of any such officer or person that the same was insolvent or in failing circumstances when the money or property was received on deposit."

Under this section the defendant was indicted, convicted and his punishment assessed at two years in the state penitentiary, in the criminal court of Jackson county. After an unsuccessful motion for a new trial, the case was duly appealed to this court. On the trial exceptions were saved to the action of the court in admitting and rejecting some of the evidence, which is assigned as error. The case was submitted to the jury on the following instructions:

"1. The court instructs the jury that these instructions contain the law of this case. It is the duty of the jury to apply the proven facts of the case to the law here given, and find their verdict accordingly.

"2. The court instructs the jury that if you shall believe from the evidence that the defendant at the county of Jackson and State of Missouri, at any time within three years next before the 13th day of October, 1893, was the president of the Kansas City Safe Deposit & Savings Bank, and that the same was a corporation and doing business as a banking institution in said county and State, did then and there unlawfully and feloniously assent to the taking and receiving on deposit in said banking institution the money of Christina Voight to the amount of thirty dollars or more, and that said banking institution was then and there in failing circumstances and that the defendant was then and there the president of said banking institution doing business as such, and that the defendant had knowledge at the time when such deposit was received that said banking institution was in failing circumstances, you will find the defendant guilty and assess the punishment by imprisonment in the penitentiary for any time not less than two years and not more than five years.

"Feloniously, as used in these instructions, means wickedly and against the admonition of the law; unlawfully.

"3. If the jury believe from the evidence that on July 10th, 1893, the witness Christina Voight did deposit in the Kansas City Safe Deposit & Savings Bank, a banking institution doing business in the State of Missouri, at the county of Jackson, three hundred dollars, or any part thereof of the value of thirty dollars or more, lawful money of the United States, of the money and property of the witness Christina Voight, and shall further believe, from the evidence, that the said deposit was not taken and received by the defendant himself, but was taken and received by some other person, but that such person was then and there in the employ of the said Kansas City Safe Deposit & Savings Bank, and acting under the direction and control of the defendant in said employment, and that such other person had general power and authority from the defendant to receive deposits of money into said bank, and that said bank was then and there in failing circumstances, and the defendant had knowledge that said bank was there and then in failing circumstances, they will find the defendant guilty as charged.

"4. The court instructs the jury that a banking institution is in failing circumstances when it is unable to meet the demands of its depositors in the usual and ordinary course of business, and this is true even though you shall believe that there was at the time a stringency in the money market.

"5. The court instructs the jury that the failure of the banking institution in question is prima facie evidence of knowledge on the part of its president that the same was in failing circumstances on July 10, 1893.

"The court instructs the jury that prima facie evidence is such that raises such a degree of probability in its favor that it must prevail, unless it be rebutted, or the contrary proved.

"6. The jury are instructed that in considering the condition of the bank on the 10th day of July, 1893, you will not take into account the three hundred thousand dollars of capital stock as a liability.

"The court instructs the jury that the indictment of itself is no evidence of guilt.

"7. The court...