State v. Lively , 311 Mo. 414 ( 1925 )

On February 4, 1924, the Prosecuting Attorney of Daviess County, Missouri, filed in the circuit court of said county an information against defendant, in two counts. The case was submitted to the jury under the second count, which, without caption, signature and jurat, reads as follows:

"Dean H. Leopard, Prosecuting Attorney within and for the county of Daviess, in the State of Missouri, under his oath of office and upon the affidavit and complaint of Mary Schuler, hereto attached and herewith filed, informs the court that on or about the 9th day of August, 1923, at said County of Daviess and State of Missouri, one Ive W. Lively, being then and there cashier of the Bank of Jamesport, of Jamesport, Missouri, a corporation duly organized and existing under the laws of the State of Missouri, the same being a banking institution doing business in said State, a certain deposit of money and other valuable thing, to-wit, the sum of ten dollars and twenty cents, in lawful money of the United States, of the value of $10.20, and a certain check for the sum of $389.80, drawn by J.W. Cole, administrator of the estate of Willis Cole, deceased, upon the Farmers Bank of Spring Hill, Missouri, payable to Mary Schuler, a further description of which said check is to this prosecuting attorney unknown, of the value of $389.80, said money and property being of the total value of four hundred dollars, and being the money and property of one Mary Schuler, unlawfully and feloniously did take, have and receive on deposit in said Bank of Jamesport, after he, the said Ivo W. Lively, had knowledge of the fact, and well knew that said Bank of Jamesport was then and there insolvent and in failing circumstance, and so the said Ive W. Lively the money and valuable thing aforesaid and above described, of the value of four hundred dollars, the money and property of the said Mary Schuler, in manner and form aforesaid, unlawfully and did feloniously did steal, take and carry away, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State."

A change of venue was granted defendant on account of alleged prejudice of the inhabitants of Daviess County, and the cause was transferred to the Circuit Court of Livingston County, and tried there. Defendant was arraigned on April 7, 1924, and entered a plea of not guilty. On April 8, 1924, the jury before whom the cause was tried, returned the following verdict:

"We the jury find the defendant guilty as charged in the second count of the information and assess his punishment at two years' imprisonment in the State penitentiary."

Timely motions for a new trial and in arrest of judgment were filed and overruled. Thereafter, allocution was granted, judgment rendered, sentence pronounced in conformity with said verdict, and an appeal allowed defendant to this court.

The defendant offered no evidence, but stood upon his demurrer to the evidence of the State.

The evidence on the part of the State shows substantially the following facts: That on or about August 9, 1923, defendant, Ivo W. Lively, was cashier of the Bank of Jamesport, located in Daviess County, Missouri; that he had been cashier of said bank for sometime prior to above date; that on August 9, 1923, one Harry Schuler deposited in said bank a check in the amount of $389.80 and $10.20 in cash, which deposit was received by this defendant; that a time certificate, bearing interest and promising payment in four months, was taken as evidence of this deposit; that said check was the property of Schuler's wife, representing her share of her father's estate, and was signed by J.W. Cole, Administrator; that the above money was deposited by Schuler in behalf of his wife, and said check was endorsed by her; that no part of the money was ever repaid, because of said bank's failure; that defendant made all the loans in connection with said bank, and also transacted business in connection with loans made from the First State Bank of Kansas City, Kansas, to said Jamesport bank; that said Bank of Jamesport owed the First State Bank of Kansas City, Kansas, $9,000; that said First State Bank had bought about fifty-five thousand dollars' worth of notes from the Bank of Jamesport, which notes were signed over without recourse on the Jamesport bank; that all the collections and renewals were taken up with defendant Lively, the cashier of the Jamesport bank, instead of the signers of the notes; that sometime after said $9,000 note was given to the First State Bank a seven-thousand-dollar note was made in lieu of the nine-thousand-dollar note; that the proceeds of the seven-thousand-dollar note were placed on deposit, in the First State Bank to the credit of the Bank of Jamesport, with the understanding it was to be left there, to take up the note eventually, and it was not considered as a checking deposit; that it was customary for a bank to keep a deposit with its corresponding bank; that for this reason the First State Bank required the bank at Jamesport not to check on the seven-thousand-dollar account. The State offered in evidence the records made by the State Finance Department as to the condition of the Bank of Jamesport sometime previous to its closing. Several notes of the bank were shown by these records to be worthless. On the 23rd day of August, 1923, just fourteen days after the deposit in question was made to the above First State Bank, the Bank of Jamesport suspended its business by order of its board of directors, and its assets and property were placed in charge of the Finance Commissioner of the State of Missouri for liquidation. On the 9th day of August, 1923, the loans of the bank were $216,000, and the liabilities were $236,000. It appears from the testimony of Oliver O. Mettle, Special Deputy Commissioner for the Bank of Jamesport, who had charge of the books and records of said bank, that in his opinion the Bank of Jamesport lost about $100,000 on account of bad paper. A.C. Martin, connected with the State Finance Department, testified that he was present when the board of directors of the Bank of Jamesport, with defendant present, were discussing the advisability of attempting to continue in business; that defendant offered no dissent and made no claim that the bank was not insolvent.

Such other matters as may be deemed important, will be considered in the opinion.

I. Defendant was convicted under the second count of information heretofore set out. It is based upon Section 3365, Revised Statutes 1919, which reads as follows:

"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, or the president, vice-president, secretary, treasurer, director or agent of any trust company or 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 trust company or institution or if any such officer, owner or agent of such bank or banking institution, or if any president, vice-president, secretary, treasurer, director or agent of such trust company or institution, shall create or assent to the creation of any debts or indebtedness, in consideration or by reason of which indebtedness any money or valuable property shall be received into such bank or banking institution or trust company or institution, after he shall (have) had knowledge of the fact that such banking institution or trust company or 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 or trust company or 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."

The information on its face does not directly or indirectly charge that defendant, as cashier of a private bank, was guilty of any offense, nor does it charge that, as cashier of any trust company, he was guilty of an offense. It does in terms charge that defendant, on August 9, 1923, was cashier of a banking institution doing business in Missouri, etc. According to our conception of the above law, it is wholly immaterial whether the Bank of Jamesport was incorporated under the laws of Missouri, or whether it was doing a banking business in the State other than as a private bank or trust company without any charter. The record is devoid of any testimony tending to show that the Bank of Jamesport was acting in any respect as a private bank or trust company. On the other hand, the evidence discloses that the Bank of Jamesport had a board of directors, a cashier in the person of defendant, and such other employees as an incorporated bank of the State would be expected to have.

Counsel for defendant, on cross-examination of Miss Roberta Goodwin, bookkeeper for the Bank of Jamesport, had her testify that the letterheads of said bank disclosed that I.C. Hill was president, Ivo W. Lively, cashier, and that Roberta Goodwin and Lois Rayburn were assistant cashiers. This witness further testified, on cross-examination by defendant, that Mr. Hill, Mr. Lively, Mr. Arnold, Mr. McBrown, Mr. Gates and Mr. DeVorss were the directors of said bank; that McBrown resigned, and Gates took his place. It appeared from the testimony of this witness, and other witnesses, that the directors, cashier and president or vice-president of said bank, under oath, made reports from time to time to the Commissioner of Finance in regard to the business transactions and condition of said bank, which was finally taken over by the Commissioner of Finance for liquidation. We are of the opinion, that the information is sufficient as to both form and substance; and that there was abundant, substantial evidence shown by the State from which the jury could legally find that the Bank of Jamesport on and prior to August 9, 1923, was duly incorporated under the laws of Missouri, if it were necessary to show that fact, and during said period was a banking institution doing business in said State.

II. The court is charged with error in refusing to sustain defendant's demurrer to the evidence at the conclusion of the case, for the alleged "reason that defendant was charged in the information with receiving a deposit in the Bank ofDeposit Jamesport, when said bank was insolvent and in failingor Loan? circumstances, whereas, the evidence on behalf of the State showed that the check and money of Mary Schuler, the prosecuting witness, was loaned to said bank on a `certificate of deposit' for four months at four per cent interest, and that said loan created an indebtedness of said bank and was not a deposit therein."

Turning to the evidence in respect to this matter we find, that Harry Schuler testified in chief as follows:

"Q. You deposited four hundred dollars there on the 9th of August? A. Yes, sir.

"Q. For whom were you acting in making that deposit? A. For my wife."

He also testified as follows:

"Q. To whom did you give this check and money? A. Mr. Lively himself."

The certificate of deposit signed by defendant and delivered to Harry Schuler, reads as follows:

"Certificate of deposit, No. 369, Bank of Jamesport, Jamesport, Missouri, August 9, 1923, four hundred dollars. Mary Schuler has upon deposit in this bank four hundred dollars, payable to the order of herself four months after date, with interest from date at four per cent per annum on the return of this certificate properly endorsed. This certificate bears no interest after one year from date and is not subject to check.

"IVO W. LIVELY."

Miss Roberta Goodwin turned to the record entry showing the deposit of the $400 to the credit of Mary Schuler, and testified, without objection, as follows:

"Q. August 9, 1923. Now, what entry do you find there with respect to a deposit made by Mary Schuler? . . . "A. There is her credit with time deposit of $400.

"Q. (By Mr. Leopard): And that entry in the ordinary and usual course of business and bookkeeping would indicate what? A. That she had deposited four hundred dollars on that date.

"Q. And received for it what? A. A time certificate of deposit."

III. It is contended by appellant under proposition two of his brief, that there was a variance between the allegations of the information and the proof.

We are of the opinion that the above contention is not sustained by the record. The defendant is here without any countervailing evidence, and without objection having been made to above testimony. We think the jury were fully justified in finding from the evidence that on August 9, 1923, the defendant, in person and as cashier, received from the Schulers as a deposit in the Bank of Jamesport $400 in money and its equivalent, which was to remain as a time deposit for a period of four months without being checked out, and upon which amount the bank was to pay interest at the rate of four per cent per annum. In other words, the certificate of deposit delivered by defendant to Schuler, recognizes on its face, that the Bank of Jamesport, owed Mary Schuler $400 by reason of the deposit, and that she was to receive interest thereon at four per cent per annum and leave the money on deposit four months without checking out any portion of same. It is evident that if the bank had not failed, and suit had been brought six months after the above transaction, upon the refusal of the bank to honor Mary Schuler's check against said fund, the cause of action would properly have been based upon the deposit as evidence of indebtedness, and not upon the agreement to pay interest thereon for four months. [Paul v. Draper, 158 Mo. l.c. 200 and cases cited; State v. Salmon, 216 Mo. l.c. 520; 3 R.C.L. sec. 146, p. 516; 7 C.J. sec. 334, p. 646.]

In 3 Ruling Case Law, section 146, supra, it is said: "A deposit in a bank has been said to be the thing or the sums received from the depositor. The mere fact that the bank agrees to pay interest on money deposited does not prevent the transaction from being a deposit as distinguished from a loan."

In 7 Corpus Juris, section 334, page 646, it is asserted that: "A certificate of deposit is a written acknowledgment by a bank or banker of the receipt of a sum of money on deposit which the bank or banker promises to pay to the depositor, to bearer, to the order of the depositor, or to some other person or to his order."

Without considering the above question further, we hold that the jury in this case were justified in finding from the evidence that on August 9, 1923, Harry Schuler, as agent for his wife, deposited with the Bank of Jamesport money and property of the value of $400, and that defendant, as cashier for said bank, received said money and property on deposit for Mary Schuler.

IV. The court is charged with error in the giving of Instruction 5, which reads as follows:

"If the jury find and believe from the evidence that on or about the 9th day of August, 1923, at the County of Daviess, State of Missouri, one Ivo W. Lively was then and there cashier of the Bank of Jamesport, Missouri, a corporationAssumption duly organized under the laws of the State ofof Facts. Missouri and that the same was a banking institution doing business in said State, and if you further find from the evidence that said Ivo W. Lively then and there did unlawfully and feloniously receive on deposit in said Bank of Jamesport, Missouri, a certain check for the sum of three hundred and eighty-nine dollars and eighty cents, drawn by J.W. Cole, administrator of the estate of Willis Cole, deceased, upon the Farmers Bank of Springhill, Missouri, payable to Mary Schuler, together with money of the amount of ten dollars and twenty cents, and that said check and money were then and there of the value of four hundred dollars, if you so find, and being the money and property of said Mary Schuler, if you so find, and that the said Ivo W. Lively at the time of receiving the deposit of said money and check had knowledge of the fact that said Bank of Jamesport was insolvent or in failing circumstances, if you find from the evidence that it was, then you should find the defendant guilty as charged in the second count of the information."

This instruction is assaulted by appellant in several respects, and his criticisms of same will be considered in the order named.

(a) It is said the above instruction is erronous because it assumes that the Bank of Jamesport was a corporation duly organized under the laws of the State of Missouri without proof thereof. The most casual reading of said instruction, set out in full supra, clearly indicates that the above contention is not supported by the language used. The commencement of said instruction with the use of the word "If" clearly indicated that the matters complained of were not assumed to be true, but must so appear and be found by the jury, from the evidence in the case, etc.

(b) It is claimed that the instruction did not require the jury to find that defendant was cashier of said bank at the time said deposit was made. What we have just said in sub-proposition (a) applies with equal force to the above contention.

(c) It is asserted, that said instruction assumed that defendant at the time he received the deposit of said money and check had knowledge of the fact that said bank was insolvent and in failing condition. This contention, like the other two mentioned, is untenable and without merit.

(d) It is asserted that said instruction is broader than Section 3365, Revised Statutes 1919, in that itBroader only required the jury to find that defendant hadthan Statute. knowledge that said bank was insolvent or in failing circumstances at the time he received said deposit, whereas, the statute provides that he must have received the deposit after he shall have had knowledge of the fact that said Bank of Jamesport was insolvent or in failing circumstances.

We are not favorably impressed with this contention. If defendant had knowledge "at the time of receiving the deposit," as alleged in said instruction, that the Bank of Jamesport was insolvent or in failing circumstances, he should have proceeded no further, and declined to receive the deposit. The above contention is without the slightest merit. We accordingly hold that said Instruction 5 properly declared the law and is not subject to legal criticism. [State v. Burlingame, 146 Mo. l.c. 214.]

V. Complaint is made with respect to Instruction 9, given by the court, which reads as follows:

"You are instructed that the demands of the bank within the meaning of the foregoing instruction are all sums owing by it to other banks, firms, corporations, or persons whether for money borrowing, or for money deposited with it, either on timeAssets certificates of deposit, or on deposit subject to checks;and but the amount owing by the bank to its stockholders asDebts. such for its capital stock and surplus if any, should not be considered as a debt against the bank within the meaning of the foregoing instructions."

We are of the opinion that the above instruction, outside of the clerical error in using "borrowing" for "borrowed," properly states the law as applied to this case.

The court at the instance of defendant also gave three instructions marked D1, D2 and D3, relating to the same subject, which read as follows:

"D1. A bank is insolvent or in failing circumstances when, from any cause, it is unable to pay its debts in the ordinary or usual course of business. It is not expected to be able at once to pay every debt it owes, but it must be able to pay or provide for its debts as they fall due in the usual course of business. `Insolvency,' or a `failing condition,' in the ordinary acceptance of the term, when applied to a bank, means inability to meet liabilities in the usual course of business.

"D2. The court instructs the jury that in considering the condition of the Bank of Jamesport, on the 9th day of August, 1923, you will not take into account the fifteen thousand dollars of capital stock of said bank, or the two thousand and fifty dollars surplus of said bank, as liabilities thereof.

"D3. The law of this State does not require a bank to retain on hand all the money of its depositors; nor is it expected to be able at once to pay every debt it owes, but is only required to pay or to provide for the payment of them as they fall due in the usual course of business. If, therefore, you find from the evidence that on the 9th day of August, 1923, said Bank of Jamesport possessed sufficient assets to pay, within a reasonable time, all of its liabilities through its own agencies, then said bank was not insolvent or in failing circumstances on said date, and if you so find you should acquit the defendant."

These instructions are consistent with each other and gave to the jury all the law that was needed in respect to above matter. The court committed no error in giving instruction numbered nine.

VI. The court is charged with error in admitting in evidence the reports made by the Deputy Finance Commissioner to the State Finance Commissioner for the years 1920, 1921 and 1922. It is insisted that there was noExaminer's evidence offered tending to show that the contents ofReports. said reports were known to the defendant, or that the latter had any knowledge of said reports whatever. It is also alleged that said reports contained statements and criticisms of the officers of said Bank of Jamesport, which inflamed and prejudiced the minds of the jurors against the defendant.

Considering these objections in the order named, we think counsel for appellant are in error in contending that appellant had no knowledge as to the contents of said reports. It appears from the record that Exhibit 44, offered in evidence by the State, was the report of A.B. Lowry, State Bank Examiner, made to the Commissioner of Finance, stating the condition of the Bank of Jamesport on June 28, 1921. In said report it was designated as an incorporated bank, then followed therein a series of questions propounded to defendant and the other officers of the bank, with their answers made under oath, showing the condition of said bank, and how its business was conducted. The affidavit made a part of Exhibit 44 and was signed and sworn to by W.L. Arnold, vice-president; Ivo W. Lively, cashier; W.L. Arnold, Ivo W. Lively, J.W. DeVorss and C.S. Lockridge, directors. The testimony of A.B. Lowry shows that defendant was present when the above investigation was made, and assisted in furnishing the data for Exhibit 44, under oath.

Exhibit 48 was the report of the Bank Examiner as to the condition of the Bank of Jamesport on August 23, 1920. The report is similar in its general make-up to Exhibit 44. It shows on its face that the officers of the Bank of Jamesport furnished the Bank Examiner the data showing the condition of the bank, and the business which the officers had been transacting, etc. This data, in the form of questions and answers, was sworn to by Jacob H. Nulf, vice-president, Ivo W. Lively, cashier, Jacob H. Nulf, Ivo W. Lively, C.S. Lockridge and W.L. Arnold, directors.

The defendant was not only present when the bank was examined as shown in exhibits 44 and 48 supra, but actively assisted in furnishing the data for said reports.

We think there is substantial evidence in the record tending to show, that defendant was present when the various examinations of the condition of the Bank of Jamesport were being conducted, and that he furnished, in connection with the other officers of said bank, information relating to the condition of said bank and its management. Aside from the foregoing, it clearly appears that defendant was not only cashier of said bank, but he looked after the loans and was the active business manager of said institution.

In view of the foregoing, we think the jury were fully justified in finding that defendant was present when these examinations of his bank were made and assisted in furnishing the data for said reports.

When these reports, exhibits 44, 46 and 47, were offered in evidence, the only objection made thereto is as follows:

"MR. ASHBY: The defendant objects to the introduction of the exhibits, 44, 46 and 47, because the reports show that they are reports made by examiners of the Bank of Jamesport to the Commissioner of Finance, and there is no evidence to show that the defendant had any knowledge of the contents of the reports. There is no evidence showing that he was present, or that the reports were presented or examined by him, and for that reason they are not binding on defendant."

It will be observed that no comments made by the examiners were pointed out or objected to when the reports were offered in evidence. The objection, as made, is untenable for the reasons heretofore stated.

Section 11678, Revised Statutes 1919, provides that: "It shall be the duty of the bank commissioner to carefully preserve all records, reports and papers pertaining to his department."

The purpose of this law is to maintain for use, in cases of necessity, a public record of the reports made as to the financial condition of banks from time to time in order that they may be taken over by the State, if found to be insolvent or in a failing condition. These reports are likewise important, in tracing the financial condition of banks, and the acts and conduct of the managers thereof, when they are charged with receiving money on deposit, knowing at the time that the bank is insolvent or in failing circumstances. [State ex rel. v. Cox, 268 S.W. l.c. 90; State v. Salmon, 216 Mo. l.c. 530.] There is nothing in the record tending to show that said reports were not absolutely accurate in every respect. The objection made to the introduction of said reports has been shown to be without merit. The above assignment of error is accordingly overruled.

VII. It is now insisted by counsel for appellant, that Instruction 8, given by the court, is erroneous. This contention seems to have been an afterthought, as the original brief presented no such issue. An additional assignment ofPrima-Facie error, however, has been filed in respect to aboveEvidence. matter, and discussed in the printed brief of Hon. Henry P. Lay, as amicus curiae. Said Instruction 8 reads as follows:

"The court instructs the jury that the failure of the banking institution in this case is prima-facie evidence of knowledge on the part of the defendant that the same was insolvent and in failing circumstances on August 9, 1923. 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."

In order that it may be considered with Instruction 8 supra, we herewith print Instruction D5, given at the instance and on behalf of appellant, which reads as follows:

"You are instructed that the presumption of innocence with which the defendant is surrounded by the law surrounds and protects him in this case, notwithstanding the fact that the State may have established a prima-facie case as defined in the instructions heretofore given you, and the burden remains with the State continuously in this cause, and it devolves upon the State to establish defendant's guilt beyond a reasonable doubt, notwithstanding such prima-facie case. So if under all the facts and circumstances in evidence there still is a reasonable doubt in your mind as to his guilt, you should acquit him."

The concluding part of Section 3365, Revised Statutes 1919, on which said Instruction 8 is based, reads as follows:

"Provided, that the failure of any such bank or banking institution or trust company or 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."

The above proviso has been in force for the last thirty years, and was contained in the Revised Statutes of 1879 and 1889 before the present law was enacted in 1895 (Laws 1895, p. 158).

In State v. Buck, 120 Mo. l.c. 487 and following, BURGESS, J., in behalf of this Division, in an able and exhaustive review of the constitutionality of the above proviso, and the validity of an instruction numbered three, similar to the one numbered eight given in this cause, sustained the same. On page 495, Judge BURGESS clearly indicates that there is no inconsistency between Instruction 8 supra, and D-5 given on behalf of defendant.

In State v. Sattley, 131 Mo. l.c. 492 and following, Judge GANTT re-affirmed the validity of Instruction 8 supra, and upheld the proviso in Section 3365, Revised Statutes 1919.

In State v. Darrah, 152 Mo. 522, Judge BRACE, speaking for the court en banc, in which all the judges concurred, except SHERWOOD, J., who was absent, approved in substance the giving of Instructions 8 and D5 supra.

In State v. Salmon, 216 Mo. l.c. 524-5, Judge Fox, representing this Division, sustained the validity of Instruction 8, given in this case.

In the brief of Mr. Lay, at page three, it is said: "This instruction" (No. 8) "in identical or similar language, has been before this court in some eight cases, and in each case has been expressly or by necessary inference, approved by this cout." He then calls our attention to the rulings of the Supreme Court in State v. Swarens, 294 Mo. 139; State v. Hogan, 252 S.W. 387, and State v. Andrews, 297 Mo. 287, and claims that they, in legal effect, overturn the eight cases above mentioned.

In all three of the above cases this court was considering the rules of evidence and procedure under common-law principles. None of the cases cited by appellant have gone to the extent of holding that the Legislature cannot enact a provision like that at the conclusion of Section 3365, Revised Statutes 1919. On the contrary, several of our decisions heretofore mentioned have in expess terms approved the constitutionality of Section 3365, including said proviso, and their rulings in that respect meet with our approval.

We hold that the Legislature had the legal right, as a co-ordinate branch of the state government, in the exercise of its police power, to pass Section 3365, Revised Statutes 1919, including said proviso. [Hicks v. Simonsen, 270 S.W. l.c. 325; State v. Tallo, 274 S.W. l.c. 468-9.] The Legislature having been vested with the constitutional right to legally enact Section 3365, including said proviso, it logically follows that Instruction Eight, based on the language of said proviso, cannot be called in question under the rulings in the Swarens case, and the other cases cited.

Without extending this discussion further, we hold that Section 3365 supra, including said proviso, is valid. We further hold, that Instruction 8 properly declared the law, and fairly presented the issues before the jury in connection with Instruction D5, given in behalf of appellant.

VIII. We have fully considered all the law questions presented in the case, and in conclusion will briefly consider the outstanding facts relating to the merits of the controversy. We are clearly of the opinion that, on the facts disclosedFacts of in this record, the jury were justified in findingCase. therefrom that on August 9, 1923, when defendant received the deposit in controversy, the Bank of Jamesport was not only in a failing condition at that time, but for all practical purposes was insolvent. It appears from the record, and from the State's Exhibit 7, that on August 22, 1923, the officers of the Bank of Jamesport had a called meeting, at which the following officers of said bank were present: W.L. Arnold, A.L. Terry, C.S. Lockridge, S.W. DeVorss, and Ivo W. Lively. W.L. Arnold was president of said meeting, and announced that it was called for the purpose of closing said bank, "on account of a run on the bank, and insufficient funds to pay." It was unanimously decided at this meeting, that the bank should be declared closed, a notice posted and the state department notified. It appears from all the evidence in the case that defendant practically had charge of all the bank's business, and apparently conducted it to suit himself. In short, the evidence warranted the jury in finding that on and prior to August 9, 1923, defendant had full knowledge of the fact that said bank was then in a failing condition if not insolvent. There is clear and convincing evidence in the record tending to show that the Bank of Jamesport had a full corps of officers, including a president, directors, cashier, and clerks; that it was not a private bank, nor was it a trust company; that it was reporting to the Commissioner of Finance as an incorporated bank, and transacting business as a banking institution in the State of Missouri. Under such circumstances, defendant would be guilty, if the evidence sustained the charge against him, whether said bank was incorporated or not. [State v. Buck, 108 Mo. l.c. 627-8.]

We have examined the instructions, and find that they are fair to defendant and properly declared all the law that was necessary for the jury to have in passing upon the merits of the case. The case was well tried by court and counsel. We find no error of which appellant can legally complain with respect to the rulings of the court during the progress of the trial. The defendant has been found guilty upon substantial evidence, after a fair and impartial trial.

The judgment below is accordingly affirmed. Higbee, C., concurs.