the v. Wells

• Decision Date: 12 May 1896
• Citation: 35 S.W. 615,134 Mo. 238
• Parties: The State v. Wells, Appellant
• Court: Missouri Supreme Court

35 S.W. 615

134 Mo. 238

The State v. Wells, Appellant

Supreme Court of Missouri, Second Division

May 12, 1896

Appeal from Howell Circuit Court. -- Hon. W. N. Evans, Judge.

Reversed.

H. D Green and T. T. Loy for appellant.

(1) The defendant being charged with receiving deposits in the Willow Springs Bank of Howell county, Missouri, as its cashier knowing at the time of so receiving that the bank was insolvent and in failing circumstances, the state is held to strict proof of the charge as laid in the indictment, and the proof that another received is a total failure of proof. State v. West, 21 Mo.App. 309; State v Batson, 31 Mo. 343; State v. Clawson, 30 Mo.App. 139; Wharton, Cr. Law [5 Ed.], secs. 616, 617, 618, 619. (2) The section of the statute upon which the indictment is bottomed is in the disjunctive creating and providing for the punishment of two offenses, the one for receiving, the other for assenting to the reception; and the two offenses should be charged in separate counts under our practice. R. S. 1889, sec. 3581; State v. Buck, 120 Mo. 479; State v. Clay, 100 Mo. 571; State v. Houx, 109 Mo. 654. (3) "It is the common and approved practice in this state, to charge in the same indictment several distinct felonies, when all relate to the same transaction and admit of the same legal judgment." State v. Houx, 109 Mo. 654. (4) The charging of one of these offenses and proving and convicting of the other is clearly a departure and a fatal error. State v. West, 21 Mo.App. 309; State v. Houx, 109 Mo. 654. (5) The doctrine is elementary and universal. Wharton Crim. Law [5 Ed.], secs. 616, 617, 618, 619. (6) The pleader in criminal procedure must specifically and particularly charge the offense. This doctrine is fully set out in the following well considered cases that we invite special attention to: State v. Rector, 126 Mo. 328; State v. Clay, 100 Mo. 571; State v. Terry, 109 Mo. 601; State v. Houx, 109 Mo. 651; State v. Hayward, 83 Mo. 299. (7) Instruction numbered 1, given by the court of his own motion, was clearly erroneous. It is in the alternative and directs the jury that they may find him guilty of receiving or assenting to the reception, thereby instructing on a charge not contained in the indictment. Such an instruction misled the jury and is fatal error. State v. West, 21 Mo.App. 309. (8) The doctrine of the failure of the bank being prima facie evidence of guilt is overcome when the defendant introduces any evidence rebutting that presumption and the burden is yet on the state to prove defendant's guilt, beyond a reasonable doubt. State v. Buck, 120 Mo. 479.

R. F. Walker, attorney general, for the state.

(1) The indictment in this case is sufficient, and charges the offense in the language of the statute under which it is drawn. Section 3581, Revised Statutes, 1889. (2) The fact that the employee, young Downs, who had been left in charge of the bank by the defendant (cashier), who was his superior officer, with authority to represent him for the purpose of receiving deposits and transacting the other usual business in that capacity, actually received this deposit, makes the defendant as criminally liable as though it had been received by him in person. State v. Sattley, 33 S.W. 41. (3) It is shown by the testimony in this case that Wells, the acting cashier, had, at the time of this deposit, gone out upon the street, but had left Downs, who was a bookkeeper in the bank, in charge to perform his, Wells', duties as cashier, and that while Wells, who knew and must have known of the insolvency of the bank, was absent, he received this deposit. This being true, the defendant was properly convicted. (4) The defendant complains of the admission and exclusion of testimony over his objections and exceptions. An examination of the testimony will show that no error was committed which could in any way have prejudiced the rights of the defendant in this respect. The instructions given by the court of its motion clearly present the law applicable to the facts, and covered completely all of the issues made by the indictment and the testimony. Those asked upon the part of the defense and refused, were properly refused. (5) By the indictment it was charged a deposit of $ 50 was received. The testimony shows that the deposit made by Kilpatrick was $ 50.93, and it is claimed that this is such a variance between the charge and the proof that this judgment should be reversed. Such a contention is without merit, and is ridiculously absurd.

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

OPINION

Gantt, P. J.

The defendant, Ebb T. Wells, was indicted in the Howell circuit court for receiving, as cashier of the Willow Springs Bank, a deposit of $ 50 of and from W. L. Kilpatrick on March 29, 1895, knowing at the time that said bank was insolvent and in failing circumstances.

On the trial it was shown beyond controversy by the state that the defendant was not in the bank at the time the deposit was received, but on the contrary it was received and accepted by another employee of the bank by the name of Fin Downs, a bookkeeper in the employment of the bank.

The records of the bank, which was shown to be duly incorporated, discloses that on March 21, 1895, eight days before the deposit was made, the defendant Wells was suspended as cashier of said bank; that after that time he was simply acting for accommodation until they could get a man in his place. The records of the various meetings of the directors after the resolution removing him were signed by defendant as "acting cashier." No "by-law" or other evidence was offered to show that defendant had the power of direction or control over the bookkeeper Downs or that Downs was authorized by him to receive deposits of money into the bank.

The evidence offered by defendant tended to prove that he had borne an excellent reputation for honesty and integrity; that the loans which occasioned the failure of the bank had all been made prior to his employment as cashier, and that he did not know the bank was insolvent or did not consider it so until the night after the deposit in question was made.

The court, among other instructions, gave the following:

"1. If you believe from all the facts and circumstances in evidence, that this defendant on the twenty-ninth day of March, 1895, in Howell county, Missouri, was cashier, or acting cashier of the Willow Springs Bank, a banking institution incorporated under the laws of this state, and that at the time such bank was in failing condition, and that defendant, after having knowledge of that fact, received or permitted the reception from W. L. Kilpatrick, the sum of $ 50.93 as a deposit in such bank, you should find the defendant guilty and assess his punishment in the penitentiary not less than two nor more than five years.

"2. The failure of the banking institution in this case or in question, is prima facie evidence of knowledge on the part of the defendant that the same was in failing circumstances on the twenty-ninth day of March, 1895, and that such prima facie evidence is such that raises such a degree of probability in its favor that it must prevail unless it is rebutted or the contrary proven."

And refused the following prayed...