State v. Longino

1. Courts. Acts prohibited by statute. Judicial interpretation. Change of decision. Ex post facto law. Cruel and unusual punishment. Where under Code 1906, section 1169, providing that it shall be a criminal offense for the president, cashier, teller, etc., conducting the business of receiving on deposit money, etc., to receive any deposit, while knowing that the institution is insolvent, the statute was judicially declared not to apply to certain acts, but subsequently the ruling of the court was reversed, and such acts held a criminal offense under the statute, and between the two decisions defendant committed such acts. No conviction could be had under the statute in question for violations committed between the first and second decisions of the court, since the holding by the court as to whether a criminal statute is, or is not, applicable to a particular state of facts is within the spirit of the constitutional prohibition against the passage of ex post facto laws, the decision of a court in construing a statute, being as much a part of the law of the land as a legislative enactment, unlike their decision relating to the common law, which are mere evidence of the law. 2. Same. This rule is confined strictly to a criminal case, that to convict a defendant of an offense committed after a decision of the courts holding a criminal statute not applicable to the facts, and before its reversal in a subsequent decision, would be to violate the constitutional provisions against the infliction of cruel and unusual punishment.

Appeal from the circuit court of Lawrence county. Hon. J. C. "Ward, Special Judge. A. T. Longino and otters were indicted for a crime. A demurrer to the indictment was sustained and the state appeals. Appellees were indicted under section 1169 of the Mississippi Code of 1906, the indictment charging that appellees were officers, agents, and employees, to wit, president, cashier and directors of a banking institution, and that- — - “being then .and there engaged in conducting the business of receiving on deposit the money and other valuable things of other persons for the said Merchants’ & Planters’ Bank, which said bank was then and there wholly insolvent, and the said [appellees) ag'ents, officers, and. employees aforesaid then.and there having good reason to believe that said bank was then and there insolvent, did then and there unlawfully and feloniously receive a deposit in said bank consisting of money, etc. . . . which was then and there received for deposit in the said bank from ... a depositor, . . . and that said agents,.officers, and employees did not then and there, or at any time prior thereto, inform said depositor that said bank was then and there insolvent.” Section 1169 of the Code of 1906- in as follows: “If the president, manager, cashier, teller, assistant, clerk, or other employee or agent 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 remove dr secrete or coxxceal the assets or effects of such establishment for the purpose of defraxxding any of the creditors of the establishment, or shall receive any deposit knowing, or having a good reasoix to believe, the establishment to be insolvent, without informing the depositor of such condition, on conviction, he shall be imprisoned in the penitentary not longer than five years.” Appellees demurred to the indictment, and the demurrer was sustained, and the state appealed. I submit that the case of Ramies et al. v. State, 60 So. 782, 103 Miss. 807, constitutes the law of the case and is res judicata on this' demurrer, because it is between' the same parties in the same case. It is a little difficult to see how the learned trial judge found any basis or theory upon which to base his ruling sustaining the demurrer; but I presume he was impressed by the argument pressed in the brief for the appellee that the decision in the Traylor case, placing an erroneous construction upon the statute upon which the indictment was predicated, rendered all persons committing the acts denounced by the statute immune from prosecution where the acts were committed between the decision in the Traylor case and the time it was overruled in the Rawles case. If that were a sound construction the court could not have reversed and remanded the Rawles Case, 60 So. 782, 103 Miss. 807, for the acts then passed on were committed between the decision in the Traylor ease and that case. The case of State v. Taylor, 64 So. 740, was likewise reversed and remanded for a new trial and the decision in the Rawles ease upheld, and it was impossible to reverse and remand a case for trial when there was no offense to try. Counsel for appellee has found two cases which uphold their contention, although in one of the cases (and the main case relied upon) none of the judges agreed on the law though they did agree on a common conclusion. This makes the case of no weight as authority. Besides, the decisions cited in support of their contention is against the great weight of authority on that subject. To sustain the contention of the appellees the court would have to assume that the court is possessed of legislative powers, and that the last decision on such question is an amendment to the law, rather than an interpretation of the meaning of the law. Under sections one and two of the Mississippi Constitution the courts cannot exercise any legislative power, the entire legislative power in this state being vested in the legislature, and the judicial department being expressly prohibited from exercising either executive or legislative power. The true theory is that when the court overrules a decision the law stands precisely as though the overruled decision had never been rendered. “Where a court, of last resort changes a ruling, or overrules a decision, it is to be deemed that the law is not changed, but the court was mistaken in its former decision, and that the law is, and has remained as expounded in its last decision, unless contract rights have accrued under the former decision of Town of Ilardinsburg v. Cravens, 47 N. E. 153, 148 Ind. 1; Center Township v. State, 49 N. E. 961, 150 Ind. 168; McMaster v. Dyer, 29 S. E>. 1016, 44 W. Ya. 644; Byrum v. Henderson, 51 N. E. 94, 151 Ind. 102; Behannon v. Shelbyville Bank, 63 S. W. 474, 23 Ky. L. Pep. 508; Falcener v. Simmons, 41 S. E. 193, 51 W. Ya. 172; Boyd v. State, 53 Ala. 601; Taliafero v. Barnett, 47 Ark. 539; In re Dunham, Fed. Cas. No. 4, 146; Lanier v. State, 57 Miss. 102 ; Pierce, v. Pierce, 46 Ind. 86; Bradshaw v. Duluth Imperial Mill Co., 52 Minn. 50, 53 N. W. 1066; Y. é M. V. R. R. Co. v. Adams Rev. Agt., 28 So. 956, 77 Miss. 194, 315; Affirmed on appeal to United States supreme court, 180 U. S. 1, 45 L. Ed. 395. In 26 Am. & Eng. Ency. Law (2nd Ed.), 179, the rule is stated as follows: £ £ The effect of overruling a decision and refusing to abide by the precedent there laid down is retrospective and makes the law at the time of the overruled decision as it, is declared in the last decision,” citing numerous authorities. On page 180 of the same volume and work under heading “In Criminal Cases” it is said: “The doctrine of stare decisis' in criminal cases cannot be carried to the extent of allowing the violators of law a vested right in rules which have been erroneously sanctioned, and will not protect them in regard to a crime committed while the decision is not A^et oAverruled.” In the present case there is no hardship imposed upon any one for the act denounced by statute is wrong per se and. would in the absence of a statute amount to a moral wrong. The indictment in this case charges that the deposit was received by defendants in the alleged insolvent bank on the 19th day of December, 1911, and the appeal of this case by the state presents to this court for decision only one question. Was there on December 19:, 1911, any law of the state of Mississippi prohibiting the deposit under circumstances as charged and set out in the indictment in the case? This identical question was not presented to nor decided by this court in the Rawles case, 103 Miss. 807. In the Traylor case decided on December 4, 1911, 100 Miss. 544, 56 So. 121, this court held that it was- no violation of the law to receive deposits in a bank under circumstances as charged in the indictment involved in the instant case. On November 11,1912, the holding in the Traylor case was virtually overruled. See Ware case, 59 So. 854, and this ruling was later followed in the Rawls case. State v. Rawls, 10-3'Miss. 807. The legislature did not amend section 1169 of the Code till March 8, 1912. Laws of Miss., 1912, page 287. Now, intermediate the decision of the Traylor case and the overruling of this case or the enactment of any amendments to the statute, section 1169 of the Code, that is, on the 19th day of December these appellees are charged with having committed the crime, to wit: receiving the deposit. In other words the appellees are charged with committing a crime which the supreme court declared in the Traylor case was not in existence — charged with an act which the supreme court said was not criminal. I therefore respectfully submit to the court that there is involved in this appeal a question of vital interest not only to every citizen of the state of Mississippi but also to this court whose judgments and decrees must be enforced as the law of the state as much so as legislative acts are to be enforced. When the supreme judicial authority of the state speaks out upon a question, whether when construing a statute of the state or otherwise declaring the law, every citizen of the state has a right to rely and act upon that declaration; and when prosecuted he has a right to invoke that declaration in his behalf. It is true every man is presumed to know the law, but he is not presumed to know the law better than the supreme court of his state for the presumption is that he is presumed to know at best what the supreme authority, construing the law, says the law is. And in this case these appellees are presumed to know what the law was while the Traylor case stood as the law in the state. So that I say respectfully that this is not a case of “carrying Coal to Newcastle” as suggested by the attorney-G-eneral in his brief for the state in this case, but is a case which calls for the careful consideration of the rights of appellees in this appeal. On December 19,1911, at the time the indictment charges the offense to have been committed, the statute, 1109, of the Code had been construed by this court; was at that time a part and parcel of the statute just the same as if this construction had been written originally into the statute at the time it was enacted by the legislature. This being the case no prosecution can be maintained under the indictment set out in the record. See 36 “Cvc.” top of page 1144. Black’s Law of Judicial Precedents, page 231. In presenting the appellees’ contention to this court I am unable to cite other or additional authorities than those cited in the able and admirable brief of Messers Longino and Ricketts who have already filed their brief in this case, but there is one authority cited by them to which I desire to call the court’s especial attention to wit: The State v. O’Neil, reported in Annotated Cases 1912B', page 691, 147 la. 513; 126 N. W. 454. In this case will be found a complete and exhaustive discussion - of the question involved in the case at bar, together with a citation of numerous authorities supporting the action of the lower court in sustaining the demurrer to the indictment in this case.