State v. Traylor

1. Banks and Banking. Indictment. Statutory offense. Construction of statutes. Penal statutes. In a prosecution under Code of 1906, section 1169, -which provides that if the president, manager, cashier, etc., of any bank or broker’s office, or establishment conducting the business of receiving on deposit “the money or other valuable things of such persons,” shall receive any deposit, knowing or having good reason to believe the establishment to be insolvent, without informing the depositor of its condition, he shall be imprisoned, etc. The indictment charged that accused, while cashier of a bank which was conducting the business of receiving on deposit “the money and, other valuable things of other persons” and knowing that the bank was then insolvent willfully received from a certain person on deposit a sum of money, without informing him of the bank’s condition. Held, that the indictment did not sufficiently charge the offense attempted to be defined by section 1169 of the Code of 1906 in that it substituted the word “other” for “such” the two words not being synonymous. 2. Same. Code of 1906, section 1169, only prohibits the officers of “banks or brokers’ offices or establishments” conducting the business of receiving on deposit the money or other valuable things “of such persons” from receiving deposits when insolvent, and does not prohibit all persons, such as officers of a mercantile establishment from receiving deposits when they are insolvent. 3. Construction on Statute. In construing ambiguous statutes it is competent not only to look at the statute being construed but also at the law which was in existence prior to the enactment of the statute in question. 4. Same. The court has no right to add anything to or take anything from a statute, where the meaning of the statute is clear. It is only in cases where the statute is ambiguous that any rule for the determination or construction of statutes can be resorted to. 5. Same. Criminal statutes must be strictly construed and no person can be convicted of a crime unless tlie offense comes -within the letter of the statute. 6. Indictment. Statutory offense. While it is not always necessary to follow the literal language of the act in framing indictments for statutory offenses, it is essential that either the same word or words equivalent in meaning and synonymous should be used. 7. Statutes. Construction. Criminal statutes may be either contracted or expanded by interpretation in their meanings so as to exempt from punishment those who are not within their spirit and purpose, but they can never be expanded against the accused, so as to bring within their penalties any person who is not within their letter. 8. Statutes. Power of courts. Legislature. The creation of crime is exclusively with the legislature and with the wisdom of its action the courts have no concern. .

Appeal from the circuit court of Simpson county. Hon. W. H. Hughes, Judge. E. B. Traylor was indicted for receiving money on deposit while acting as cashier of a hank, knowing of the bank’s insolvency. From a judgment sustaining a demurrer to the indictment the state appeals. The facts áre fully stated in the opinion of the court. The fourth ground of the indictment: “The said supposed indictment does not charge that said bank was conducting the business of receiving on deposit the money or other valuable things or such persons as the president, manager, cashier, teller, assistant, clerk, or other employee or agent of any bank or broker’s office or establishment, but instead charges that the bank was engaged in the business of receiving money and other valuable things of other persons.” The statute uses the adjective “such” as qualifying persons from whom it is a crime to receive deposits under the circumstances named. The only persons which are referred to in the statute before the phrase “such persons” is’ used, are the “president, manager, cashier, teller, assistant, clerk, or other employee or agent of any bank, ’ ’ etc. This section was brought forward from the Code of 1892, section 1080 (Code 18801, section 2814), without change in a single word except the mere inadvertent substitution of “such” for “other.” Even if this section had been first enacted when the Code of 1906 became the law, • it would be apparent upon reading the whole section that the word “such” was simply an error. The intention is, obviously, to protect the public — • the depositors generally patronizing banks, broker’s offices, and other establishments “conducting the business of receiving on deposit the money or other valuable things of . . . persons.” The obvious purposes of the statute would be defeated, and it would be an absurdity, if it should be construed as applying only to those banks, brokers’ offices, and other establishments “conducting the business of receiving on deposit the money or other valuable things” of the officers, agents, and employees of such institutions. Under that construction, the cashier, or even a mere agent or assistant would be under the necessity of informing the president or manager of the institution for which he worked, of its insolvency, when such president or manager offered to deposit his money therein, and would be guilty of no crime unless he had informed such person of that which he already knew. The court will correct such error by construction. See 2 Lewis Sutherland’s Statutory Construction (2 Ed.), page 795, section 410 (260), and the cases cited in the notes. In Earhart v. State, 67 Miss. 325, the act of March 9', 1888 (Laws of 1888, chapter 54, page 89), was construed by this court. That was entitled “An act to amend section 2985 of the Code of 1880, as refers to carrying concealed weapons.” Section 2985 of the Code of 1880' was, so far as the question is concerned, in part as follows: “Any person not being threatened with, o,L having good and sufficient reason to apprehend an attack, or traveling (not being a tramp), or setting out on a journey” shall be guilty of a misdemeanor if he carries certain concealed weapons. Section 5, of chapter 54, of the act of 1888, amended that part of section 2985, which I have quoted, by striking out the words “or having- good and sufficient reason to apprehend an attack.” Thus, as amended, section 2985, of the Code of 1880, denounced as a crime the carrying of certain concealed weapons by “Any person not being threatened with, or traveling (not being a tramp), or setting out on a journey,” etc. Judge Campbell, delivering the opinion said: “We must hold, either .that the legislature, in amending section 2985', of the Code, by an act approved March 9, 1888, nullified the section by making it senseless and uncertain, so as to be unenforceable, or that it committed a clerical mistake in striking out two words more than was intended, viz., the word “an attack.” The latter is the more probable, and to read the section as amended, retaining those two words, will accomplish what was manifestly the legislative purpose, and leave the law in' force. We, therefore, adopt that view, and under it the section as amended will be read, “any person, not being threatened with an attack . . . who carries concealed, etc.” See the case of Bobo v. Board of Commissioners, 46 So. 819, 92 Miss. 792. The principle of that ease, it seems to me, is exactly applicable to the case at bar. A diccussion of the various grounds of demurrer seriatim would perhaps needlessly protract this brief and we can put the court in possession of our views, adopted by the trial court, by devoting the argument to four general propositions. 1st. The statute as written clearly defines an offense. 2nd.' The indictment is not written in the language of the statute. 3rd. Synonymous words with those in the statute are not employed in the indictment, and 4th. The statute must be strictly construed. It is to be borne in mind that the offense defined by the statute is made such solely by force of the statute. In State• v. Walker, 88 Miss. 592, our court speaking through Mayes, Judge, at page 596, says: “The crime created by the statute can only be committed by the president, manager, etc., of a bank or broker ’s office or establishment conducting the business of receiving on deposit the money or other valuable things of other persons; but when it is shown that the person of the designated class is conducting the business, etc., a single act of receiving one deposit completes the crime and the crime is committed just as often as the act is repeated. ’ ’ Continuing on the same page: ‘ ‘ Conducting the business is one of the necessary links in the chain of facts necessary to constitute the crime. A person not conducting the business cannot commit the crime. Therefore, as a matter of necessary description it must be alleged that the person charged was conducting the business.” Since the above decision was rendered section 1169, supra, superseded section 1089, Code 1892, which the court in the Walker case was construing, the change in the law being that if a member of several designated classes of officers or employees of a bank or broker’s office or establishment conducting the business of receiving on deposit the money or other valuable things of such persons, whereas the prior statute extended the business of .receiving on deposit the money or other valuable things to other persons. In other words, the law prior' to October, 1906, when the Code of 1906 went into effect, prohibited the officer or employee of the bank conducting the business of receiving on deposit the money of individual depositors, from receiving a deposit from a member of the body of the people into an insolvent bank which he knew or believed to be insolvent, without informing the depositor of the insolvency; whereas the law which became effective in the present Code, prohibited the officer or employee of a bank conducting the business of receiving on deposit the money or other valuable things of officers or employees of banks or brokers’ offices from receiving a deposit from such officer or employee of a bank or broker’s office into his insolvent bank which he knows or believes to be insolvent, without informing such officer or employee of his bank’s insolvency. The contention of the state that the legislature intended the statute to protect the public would be untenable in any case unless the bank was engaged in the business of receiving deposits from the public. The former statute covers banks engaged in the business of receiving deposits from the public but the present statute limits the business to that of receiving deposits from depositors or employees of banks or broker’s offices. Let us illustrate. Suppose the Bank of D’Lo did not receive deposits from anyone except representatives of banks and brokers’ offices — suppose the Bank of D’Lo was insolvent and that appellee was the officer of the designated class conducting the business of receiving deposits from such representatives and that on the occasion in question he had received a deposit for such representative and at such time he knew or had good reason to believe the Bank of D ’Lo was insolvent but did not inform such representative of such insolvency — then, manifestly, under this statute, appellee would be guilty of a violation thereof. So then the statute makes complete sense, clearly defines a crime, and under certain facts, appellee could be in-dieted, tried and convicted; but as said by Justice Mayes in the Walker case, supra, “A person not conducting the business cannot commit the crime, therefore as a matter of necessary description it must be alleged that the person charged was conducting the business,” and under this announcement of our court the indictment must charge in the language of the statute, or in synonymous words, that “the president, manager, cashier, teller, assistant, clerk or other employee or agent of any bank or broker’s office o,r establishment conducting the business of receiving’ on deposit'the money or other valuable things of such persons.” It must charge that the Bank of D‘Lo was conducting the business of receiving deposits of such persons as those designated, to-wit, president, manager, cashier, teller, assistant, clerk or other employee or agent of a bank o‘r broker’s office or establishment, and it must charge that the defendant, appellee, was conducting such business, neither of which allegations are anywhere to be found in this indictment. In other words, the statute would cover any case of a bank operating a depository for banks and brokers’ offices and if such depository become insolvent to the knowledge or belief of the officer or employee of the designated class or classes in charge and such officer or employee receive a deposit from a representative of one of its bank or broker’s office customers without informing the representative who made the deposit as to the insolvency of the depository, then undoubtedly the crime would be committed. Thus the argument of the learned assistant attorney-general is manifestly unsound and the cases of Earhart v. State, 67 Miss. 325, and Bobo v. Board of Commissioners, 92 Miss. 792, are inapplicable for the reason that in both of those cases the statutes were senseless and uncertain, so as to render them unenforcible, whereas in the present controversy we have a perfectly valid statute applying to a limited number of cases, it is true, but certainly enforcible in such cases. Statutory words may be used in an indictment. J esse v. State, 28 Miss. 100; Sullivan v. The State, 67 Miss. 346. If the words of the statute are not used in the indictment synonymous words must be used. Harrington v. The State, 54 Miss. 490; Roberts v. The State, 55 Miss. 421; Richhurger v. The State, 90 Miss. 806; State v. Presley, 91 Miss. 377. The words “such” and “other” cannot be said to be synonymous words, “such” being the word used in the statute and “other” being the word used in the indictment. The statute must be strictly construed. In Merrill v. Melchior, 30 Miss. 516, the syllabus, which is sustained by the test, says: “Penal statutes cannot be extended by construction, so as to bring within their provisions cases not embraced in their plain letter.” The court in that case cited Dwarris on Statutes, 736. In Foote v. Few?, Zant, 34 Miss. 41, the court says “the statute must be construed strictly and cannot embrace cases not coming with the letter of the law.” Foote v. Van Zant, 34 Miss. 40. In Monaghan v. The State, 66 Miss. 514, our court speaking through Arnold, C. J., says: . “To sell liquor to a minor is what is forbidden by the statute. Merely to deliver to a minor, with notice that it is to be carried to an adult, is not a sale within the meaning of the statute. We cannot extend the terms of a criminal statute beyond its clear legal meaning. We cannot construe the word sell in the statute to mean something different from its ordinary legal import.” Again on page 515, it is said: “If it appears from this view, that the statute under consideration may be easily evaded, that only proves the necessity of its amendment. It furnishes no excuse for applying by judicial construction what is palpably omitted from it.” Citing Seigle v. People, 106 111. In West v. The State, 70 Miss. 601, Campbell, C. J., speaking for our court, says: “Evidence of a receipt by West in Pike county of an order for liquor, which he afterwards sent and got pay fox, does not show a sale in that county, and therefore does not sustain the first count of the indictment. It is probable that “to sell” was used in the second section of chapter 62 of the Acts of 1890 under the mistaken notion that thereby receiving orders for liquor, to be sent into forbidden territory, was prohibited, but it is impossible for a court to ascribe such meaning to the words used, which is not sanctioned by either legal or popular usage. If the purpose was to make receiving an order for liquor an offense, different language should have been.employed. It is inadmissible to give to words a meaning they do not contain in order to accomplish an object it may be supposed the lawmaker had in view . . . ” So, in this case, the assistant attorney-general is not authorized to hold appellee to a stricter accountability than the plain language of the statute, to accomplish the object he may suppose the lawmaker had in view, to-wit, the protection of the public as individual depositors instead of the protection of the public whose funds may be re-deposited by one of the officers or employees of their bank in a neighboring depository bank with disastrous result. In State v. Richardson, 8& Miss. 441, the court construing a penal statute, says, “The statute must be strictly construed.” Again on the same page, “The language of the statute will not be extended by construction.” And again on the same page the court speaking of including what was not in the letter of the statute, says, “If, as a matter of policy, this ought to be done, it is for the legislature, and not for the courts, to make the necessary amendment to the statute.” In the second edition of Bishop on Statutory Crimes, section 2201, we find the following: “As stated by Hawkins, the doctrine is: ‘No parallel case which comes within the same mischief, shall be construed to be within purview of it (the statute), unless it can be brought within the meaning of the words.” In slightly different language, though a case of this sort is fully within the mischief to be remedied, and is even of the same class and within the same reason as other cases enumerated in the statute, construction will not be permitted to bring it within the statute unless it is also within. the statutory words.” Again, “Such statutes are to reach no further in meaning than their words; no person is to be made subject to them by implication, and all doubts concerning their interpretation are to preponderate in favor of the accused. Only those transactions are covered by them which are within both their spirit and their letter.” Bishop on Statutory Crimes (2nd Ed.), sec. 94. In State v. Henry, 87 Miss. 144, our courts speaking through Judge Calhoun, said: “Loose construction would eventually mean ruin. Another principle to be carried along is that, if the language be plain, the announcement must enforce it, to whatever evil it may apparently lead; and a state legislature is an absolute despot, its acts on all subjects being free from any restriction whatever not found in the state or federal constitution. Congress has no power not confided to it. A legislature has all power not withheld from it.” Again on the same page, “Still another principle is that where the language is plain, subsequent action by the departments, or contemporaneous or antecedent history of the subject, cannot be appealed to for interpretation; but these may all be delved into to ascertain the meaning and force of terms or words — the real intent, from the language, being the very thing at last to be ascertained. ’ ’ ■ So in this case, where the legislature had the power to repeal the statute entirely, to repeal it in part or to enlarge it, the crime could be predicated of the conduct of .business of receiving deposits from representatives of banks o.r brokers’ offices, as was done, or from tbe state or from tbe public generally. Until tbe Code of .1880 no crime was predicated of tbe conduct of such business of receiving deposits from anyone and no crime .under the statute can now be committed unless the bank or broker’s office or establishment is conducting the business of .receiving on deposit the money or other valuable things of such persons as the president, manager, cashier, teller assistant, clerk or other employee or agent of a bank or broker’s office or establishment. It is not fo,r the court to say that the legislature did not intend to restrict the operation of the statute, it having the power to do so, and having done so by a word whose meaning is absolutely certain. Two legislatures have assembled and adjourned without correcting the error if error it was. But then in the language of the opinion last above quoted from, we are not permitted to look to antecedent history upon the subject for interpretation. In Yerger v. State, 91 Miss. 822, our court, speaking through Mayes, Judge,- says: “The language of the statute is plain, unambiguous, and so written; and it is not fox us to change it, or to hold that the legislature meant something different from what they plainly expressed in the law.” In Adams v. Saunders, 93 Miss. 520, the syllabus which is borne out by the opinion, is as follows: ' “The statute, Code 1906', section 4357, imposing damages for the failure of a tax collector to pay over taxes collected, is penal and must be strictly construed and applies only where the conduct of the offender come clearly within the terms of the law.” In Stewart v. The State, 95 Miss. 627. our court, construing the antecedent of this identical statute, speaking through Smith, J., at page 634, says: “Penal statutes must be strictly construed and the court can neither add to nor take from them. State v. Dunning, 130 Iowa, 678, 107 N. W. 927, and authorities therein cited.” In this case, to sustain the principle contention of the learned assistant attorney-general, the rule here announced by our court would be twice violated, that is, we would take from the statute the word “such” and add to the statute the word ‘ ‘ other, ’ ’ and thereby render the conduct of appellee criminal, whereas to give the plain language of the statute its accepted, every-day, meaning and interpretation would let the appellee go free. This is not a case of a meaningless, unenforcible statute.