The State v. Sattley

• Decision Date: 03 December 1895
• Citation: 33 S.W. 41,131 Mo. 464
• Parties: The State v. Sattley, Appellant
• Court: Missouri Supreme Court

33 S.W. 41

131 Mo. 464

The State v. Sattley, Appellant

Supreme Court of Missouri, Second Division

December 3, 1895

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

Affirmed.

Adiel Sherwood, Warner, Dean, Gibson & McLeod, Gates & Wallace Harkless & O'Grady and Beebe & Watson for appellant.

(1) The indictment is bad in that it contains two counts, each of said counts being repugnant to, and inconsistent with, the other. (2) The court erred in refusing to sustain the demurrer to the state's evidence. There was a fatal variance between the descriptive averments of the indictment and the proof. (3) First. The court erred in holding that witnesses Moore, Holden, and Coppinger were competent experts as to value of assets of the bank. Rogers on Expert Testimony, secs. 24, 30, 34, and 36; Heald v. Thing, 45 Me. 394; Greeley v. Stilson, 27 Mich. 155; Polk v. State, 36 Ark. 124; Railroad v Shipley, 39 Md. 251; Dickinson v. Fitchburg, 13 Gray, 556; State v. Meyers, 54 Kan. 214. Second. The court erred in permitting the witnesses Moore, Holden, and Coppinger, to state certain debtors of the bank were insolvent. This was a mere conclusion of witnesses. State v. Meyers, 54 Kan. 214; Brundred v. Mach. Co., 4 N. J. E. 295. Third. The court erred in refusing to allow defendant, on cross-examination of witnesses Moore, Holden and Coppinger, to show the market value of the property of American Bank Building Company, Exchange Building, Realty Investment Company, and other corporations, for the purpose of proving the value of the stock of such companies. This was competent. Hewitt v. Steele, 118 Mo. 463; 1 Spelling on Private Corporations, sec. 499; Freon v. Carriage Co., 42 Ohio St. 30; Cook on Stock and Stockholders, sec. 581. (4) The court erred in admitting evidence of depositors of the bank as to what was done and said with bank officers at time of deposit, when defendant was not present. First. Because it was hearsay evidence against defendant. Second. Because it was not competent to prove any issue in the case. 3 Rice on Evidence, pp. 218 and 743, cases cited; Roscoe's Crim. Evid., secs. 90 and 94; State v. Jackson, 95 Mo. 699. (5) The court erred in excluding the testimony of W. F. Reed, offered by defendant to prove the construction of the Kansas statute. Hoes v. Van Alstyne, 20 Ill. 202. (6) First. The court erred in giving instruction number 6 on behalf of the state, because there was no evidence on which to base same. Second. The court erred in giving instruction number 7 on behalf of the state. (a) Because it is in violation of section 4220, Revised Statutes, in that it tells the jury what weight shall be given certain facts. (b) Said instruction does not properly declare the law. Green v. State, 13 Mo. 382; State v. Wisdom, 119 Mo. 552. Third. Instruction number 9 should not have been given. (a) If the property charged to have been received into the bank was not that of Christina Vogt, then there was a fatal variance, and the instruction is erroneous for that reason. (b) It is a comment on the evidence, and is in conflict with section 4220 Revised Statutes, 1889. Fourth. Instruction 10 is subject to same objections as made to number 9. Fifth. Instruction number 12 is also in conflict with instruction 10 and subject to same objection as made to numbers 9 and 10. Sixth. Instructions 11 and 13 are mere comments on the evidence and should not have been given. Seventh. Instruction 14 is erroneous. (a) Because it does not define the word "assenting to the reception of a deposit." This was the essence of the crime charged and the same should have been defined. State ex rel. v. Brassfield, 67 Mo. 339. This instruction wholly ignores any "guilty intent." There can be no crime where there is no guilty intent. Bishop's New Crim. Law, secs. 285 and 287, and cases cited. Eighth. Instructions 15 and 16, given for the state, are subject to same criticism made to instructions 12, 13, and 14. Ninth. Instruction 17 given is erroneous. (a) Because unconstitutional. (b) Because it is an improper declaration of law, in that the statute only makes such evidence prima facie in the absence of proof to the contrary. This qualification should have been added. Com v. Williams, 6 Gray, 1; 3 Rice on Evidence, sec. 27, and cases cited; State v. Ogletree, 28 Ala. 693; State v. Evans, 124 Mo. 411. (c) The instruction takes away the presumption of the innocence of defendant on the selected facts only. This was erroneous. State v. Ogletree, supra. (d) It casts on defendant the burden of proving the contrary -- that is, establish the truth of the contrary. Rapalje & Lawrence Law Dict.; Best on Evidence, sec. 9. Whereas, all defendant is required to do was to prove such facts as would raise a reasonable doubt, therefore this instruction was erroneous. (e) This instruction violates section 4220, Revised Statutes, 1889. Tenth. Instruction number 19 is erroneous in that the latter part of same is a mere comment on the evidence and violates the statute supra. Eleventh. Instructions 20 and 21 are subject to the same criticisms made to instructions 12, 14, 15, and 16. (7) The court erred in refusing to give all the instructions asked by defendant.

R. F. Walker, attorney general, Morton Jourdan, assistant attorney general, Marcy K. Brown, prosecuting attorney, and Frank G. Johnson, assistant prosecuting attorney, for the state.

(1) The indictment is sufficient (see section 3581, R. S. 1889). The second count is an almost exact copy of the indictment in State v. Buck, 108 Mo. 622, and State v. Buck, 120 Mo. 483, 484. The third count is practically the same as the second, except that it charges the creation of an indebtedness. The indictments in the above cases were carefully considered and approved by this court. (2) The evidence fully supports the verdict. It has been repeatedly held that this court will not interfere, unless it affirmatively appears that there is a total failure of proof. State v. Fisher, 124 Mo. 460; State v. Schaeffer, 116 Mo. 96; State v. Cook, 58 Mo. 548. (3) Where an inference of guilt may reasonably be drawn from the testimony, a verdict will not be set aside on appeal because of the insufficiency of the evidence. State v. Sanford, 124 Mo. 484; State v. Banks, 118 Mo. 107; State v. Cantlin, 118 Mo. 100. (4) Where the evidence does not so preponderate against the verdict as to justify the court in concluding that the jury were influenced by passion or prejudice, the objection that the verdict is against the evidence must be overruled. State v. Preston, 77 Mo. 294; State v Moxley, 115 Mo. 644; State v. Richardson, 117 Mo. 585; State v. Alfray, 124 Mo. 393. (5) No error was committed by the court in admitting the testimony of witnesses John A. Moore, Mark Coppinger, and Howard M. Holden, as to the value of the assets of the bank, as showing the condition of the bank, as to its insolvency on the tenth of July, 1893, the date upon which the deposit was received. The witnesses were shown by the evidence to be qualified and competent to testify as to the values of the assets of the bank, and witnesses may testify as to their value in bulk. Seyforth v. Railroad, 52 Mo. 452. (6) Opinion evidence as to the value of property involved in any litigation is, of necessity, admissible. Dalzell v. Davenport, 12 Iowa 437. (7) Opinions of witnesses acquainted with real estate, the value of which is in dispute, are competent upon the question of such value. Clark v. Baird, 9 N.Y. 183; Ferguson v. Stafford, 33 Ind. 162; Railroad v. Windsor, 51 Ind. 238. (8) "It is no objection to the evidence of a witness testifying as to market value that such evidence rests on hearsay. So it is admissible to fall back, as a basis of opinion, on prices current, provided they be traceable to reliable sources." Seligman v. Rogers, 113 Mo. 657; Wharton's Evidence, sec. 449, and cases cited; Cliquot's Champagne, 3 Wall. (U.S.) 414; Chaffee v. United States, 18 Wall. 541; Terry v. McNeill, 58 Barb. 241. (9) Insolvency may be shown in various ways. "A judgment and execution unsatisfied are evidence of insolvency, or inability to collect. They are, however, evidence only, and the facts may be established as well by other evidence; among other modes, by assignment and continued suspension of business, or other notorious indication." Terry v. Tubman, 2 Otto, 156; Reynolds v. Douglas, 12 Pet. 497; Lent v. Paddelford, 2 Am. L. Cases, 134. (10) Any declaration made at the time of receiving the deposit by the defendant, or by the person who received the deposit, in the presence of defendant, or made by his direction, in regard to the bank's solvency, is admissible to show knowledge, and as part of the res gestae. State v. Ware, 62 Mo. 597; State v. Evans, 65 Mo. 574; Robinson v. Walton, 58 Mo. 380. (11) All the twenty-two refused instructions asked by defendant were properly refused by the trial court. The declarations of law asked for in numbers 6, 7, 15, 16, 17, 18, and 19 were, so far as proper, contained in the instructions given, and were, therefore, unnecessary, and it was not error to refuse them. State v. Luke, 104 Mo. 563; Buck v. Street Railway Co., 108 Mo. 179; State v. Banks, 118 Mo. 117; State v. Morton, 42 Mo.App. 64; State v. McKenzie, 102 Mo. 620. (12) The instructions given properly declared the law and covered every phase of the case.

Gantt, P. J. Sherwood and Burgess, J. J., concur.

OPINION

Gantt, P. J.

The defendant was indicted in the criminal court of Jackson county, at Kansas City, at the September term, 1893, for grand larceny, under section 3581, Revised Statutes, 1889 for having, as cashier of the Kansas City Safe Deposit and Savings Bank, unlawfully and feloniously received a deposit of $ 300, the property of Mrs. Christina Vogt, when said bank was in...