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by way of indorsement, owed the bank $164,- | bank's money); and on that date the de000, with security worth about $96,000. But fendant and Darragh accepted of the Equithe most glaring of all the schemes for swal- table Mortgage Company stock of the bank lowing up the money of the depositors were of the nominal value of $60,000, at its face the transactions with the Realty Investment value, when in truth and fact, it would Company. This institution was organized in seem, it was without value, and said mortKansas City, January 25, 1890, with a nominal gage company had acquired it without paycapital of $100,000. Sattley was the secre- ing anything for it. It was also shown that tary and treasurer of this realty company, and W. P. Moores was the vice president of this a young clerk in the employ of the bank was bank. He had made a trip to the East to its president. The office of this company was obtain money to tide over the bank, but had in a small room over the bank. By the ma- failed. The bank was indebted to Moores nipulation of Sattley, with the assistance of and his relatives on time deposits to the Darragh, $416,400 of the bank's money was amount of $42,178. Moores, on his return turned over to this realty company, and when from the East, demanded this money, but, the bank collapsed all the security it had was not having it, the president and the cashier some property which was assessed at $63,250, picked out the choicest securities held by --a loss exceeding by $50,000 the total capital the bank, and on July 5, 1893, turned them stock of the bank. Under defendant's man- over to Moores in settlement of his claims. agement the bank had absorbed 997 shares of But it was in evidence, further, that, while the 1,000 shares of the capital stock of the the bank was thus preferring its vice presirealty company, and this stock, which nomi- dent, poor and needy depositors were trying nally represented $99,700, was absolutely in vain to get their money upon exactly worthless on July 10, 1893. Insolvent as that similar certificates. On June 13, 1893, about company was, the defendant and the presi- one month before Mrs. Vogt made the dedent, Darragh, permitted it to borrow of the posit described in the indictment, the bank bank's funds, upon its unsecured paper, and gave notice it would not pay money on checks within the six months preceding the failure of unless 90 days' notice was given. Of course, the bank, $223,824.

it could not limit its liability on time certifiOn January 3, 1893, loaned.... $ 6,800

cates of deposit. They were payable absoFebruary 1, 1893, loaned.

30,000 lutely when they fell due. The bank, notFebruary 1, 1893, loaned.

30.000

withstanding its refusal to pay without noApril 1, 1893, loaned...

20,000
20,000

tice, continued to receive deposits up to the April 1, 1893, loaned. April 26, 1893, loaned.

50.000 hour of closing on July 10, 1893; and it is in May 1, 1893, loaned.

27,000 evidence that at 3 o'clock that afternoon Mr. May 1, 1893, loaned.

8,210

Bales, a son of one of the directors, was told May 1, 1893, loaned.

20,317 May 13, 1893, loaned.

11,000

of the anticipated assignment by the presiMay 22, 1893, loaned.

497

dent, and he says that they met at the bank

about 7:30 o'clock that evening to discuss Total (without security)...... $223,824

the matter, and the deed of assignment was All that the assignee, Holden, could find to already drawn by Mr. McLeod, one of the apply on the $50,000 note of April 26, 1893, bank's attorneys, and was signed that night, was a second-hand office desk, which netted with the understanding it was to go on $15, and was credited on the note, leaving record next morning. all of said unsecured notes a total loss to Christina Vogt, who made the deposit upthe bank and its depositors. Another con- on which the indictment is based, was presicern-by name, the Corbin Investment Com- dent of the Bethlehem Ladies' Society, a pany-was used as a conduit to extract the voluntary association, which was a church money of the bank, and resulted in a loss of society organized by the lady members of a $44,000.

struggling Lutheran church of that name, This character of evidence was admitted for charitable work, and for the purpose of to show that these transactions leading up accumulating sufficient means to erect a to the insolvency and ruin of the bank were permanent place of worship. The money directed and executed by the aid and assist- deposited had been accumulated gradually ance of defendant, and that he could not be by the society, by the payment of monthly ignorant of the true condition of the bank. dues by the members, and by holding fairs, But it was shown further that just prior to festivals, and similar church work. Mrs. the assignment, on April 28, 1893, the bank Vogt, as a member and officer of the society, owned $83,000 worth of Pine Bluff Water was intrusted with the keeping of its funds, & Light Company's receiver's certificates, and allowed by her husband to devote her and sent them to the Equitable Mortgage time and labor to the work of the society. Company, in New York, for collection. They She had been depositing the savings of the were collected at once, but no returns were society with the bank for over three years, ever made to the bank until July 5, 1893 they having all been merged into one cer(just five days before the assignment), when tificate of deposit for $205, which fell due on this claim was settled by simply charging it July 10, 1893,-the very day upon which the up to the Equitable Mortgage Company (a assignment was made. Mrs. Vogt went to concern which had overdrawn $23,000 of the the bank on that day, about 3 o'clock p. m.,

abd

Vol. 33

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to draw the money out, and was refused agreed to her, he flatly refused to let her payment, and was induced by representa- draw it out, and her life's savings went with tions made as to the solvency of the bank | the bank's collapse a short time afterwards. by the teller, in the presence of defendant, C. A. Stavnon, a manufacturer, in June 10, to redeposit the old certificate, and to de- 1893, who contemplated making a deposit, posit in addition thereto, on that day, the first had a talk with Sattley to ascertain the sum of $89 in money, for which a new cer bank's condition. He told Sattley that he tificate of deposit was issued by the bank had heard some rumors as to the bank's confor $300, due in six months thereafter, at 5 dition, and its methods of doing business. per cent. interest, and made "payable to the Sattley laughed at the rumors, and said "the order of Mrs. Mary Seitzler or Mrs. E. bank was the most solid institution in the Vogt"; her husband's name being E. Vogt, country, and that it was safer than any naand Mrs. Seitzler being an officer, also, of tional bank; that the bank never loaned out the same society. The defendant, Sattley,

The defendant, Sattley, any money except on gilt-edged security, and was present when the money was received didn't take commercial paper, like a national and the obligation issued, and himself sign- bank, but only loaned out its money on first ed the certificate of deposit, as cashier of mortgages; and that the bank was so prosthe bank.

perous that it was paying 30 per cent. divi. Stephen Hull, an aged minister, had been dends." On the strength of Sattley's représaving and depositing in the bank for 11 sentations as to the bank's condition, Mr. years. He had a certificate of deposit which Stavnon deposited $2,095, the amount for fell due on June 16, 1893, and called to col which he had just sold out his business. A lect it on that day. He was going towards few days afterwards the bank posted up its the paying teller's window with his certifi notice refusing to pay out money on book cate, when Sattley intercepted him,-headed accounts, except on 90 days' notice. Mr. him off,--took him into his private room, Stavnon went in again to see Sattley about and begged him not to draw out his money. it, who avoided him, but upon returning a Finding that Mr. Hull was determined to third time he secured an interview. Sattley draw out the money, on acccount of his sus said “there was not a more solid institution picions as to the bank's condition, he im in the country; that they didn't have any portuned him in the strongest terms not to security except what was gilt-edged, and draw it out; and in order to deceive him, worth several times the amount loaned upon and induce him to allow his money to re it.." When Mr. Stavnon deposited his money, main, he assured him in the strongest terms it was with the distinct understanding, had that the bank was perfectly secure, and that with Sattley, that he could draw it out at it was “as sound as the Bank of England," any time; but, nevertheless, Sattley refused and "the very place for an old man like him to let him draw it out, and gave as their reato leave his money.” Sattley, notwithstand son for suspending payments to depositors ing Mr. Hull insisted that he was greatly in that "they were not going to allow themneed of it, refused to pay him the $1,000 selves to be bulldozed and run over by them." due, but finally, after much urging, let him Susan Talbott was an aged widow, who have only $35 of the amount due him on his sewed for a living. She had been a cuscertificate.

tomer of the bank for several years, she and Mary Corrigan was a domestic who had her daughter sewing and saving, and putting saved her earnings for many years, until she their earnings in the bank. On June 22, 1893, had accumulated about $600, which was de she went to the bank to get a draft for $132 posited in another savings bank, where it cashed, which had been sent to her by her was drawing 3 per cent. interest, but per son. Such was the bank's condition that fectly secure. Passing by one day, she saw they refused to cash even so small a draft the sign out, where this bank was bidding 5 for a known customer of the bank. Finally, per cent. interest for all money deposited. after a consultation between Sattley and the She dropped in, and Sattley induced her to paying teller, Sattley agreed to cash it for draw her savings out of the other bank, and her, provided she would accept only $32 in deposit them with his. She became uneasy cash for it, and take the bank's obligation shortly afterwards, and went down a week for the remaining $100, due on July 15, 1893, before they posted up the notice requiring which she did,-before which time the bank time on book accounts before money could failed. be drawn out. She saw Sattley, and asked Michael O'Sullivan had a certificate of deto have her savings back, telling him that posit for $3,619, which fell due July 3, 1893, she had worked out for the money the best which represented his savings of over 20 years of her life, and that she valued it as years as a street laborer. He went to the much as her life itself, because she had been bank on the morning of July 3d, and asked saving it slowly for years to pay off the for the money due him. The paying teller, mortgage on her home.” Sattley tried to as usual, acting under instructions, refused reassure her by telling her to go home and to pay it, and sent him to Sattley, who took feel secure that "her money was as safe as him to Darragh; and they both talked with if she had it in her own pocket"; but when him for some time, in the effort to induce she finally insisted on having it, as he had him not to draw out his money, telling him

the bank was one of the soundest in the, they could not pay her all the money due her, country. Finally, when he insisted on hav but could only pay her $500 of that amount. ing the money due him, they flatly refused She demanded the full amount which was to pay him. Mr. O'Sullivan stood upon his then due, but Sattley and Darragh told her rights, told them he must have his money, she would have to wait a while before they and threatened to cause them trouble if they could pay her the rest. She still insisted on did not pay it to him. They then wanted the bank's paying her the full amount due, him to take $800 only, and claimed they but they refused, and told her to come back could pay him no more, but would fix the again in three days. At the end of three rest of it up later on. O'Sullivan, however, in days, on July 8th, she went back again for sisted strenuously upon having all his money the balance of her money due.

Again the due him, and they finally told him to come executive board of the bank, composed of its back in an hour, and they would see if they head officers, Sattley and Darragh, went into could pay him. In an hour he returned, and executive session. At the end of the executhey still endeavored to put him off again, tive session they came out, and announced but he still insisted so strenuously upon hav- that the bank was not able to meet its obliing his money, or making them trouble if he gation. She strenuously insisted, however, did not get it, that Sattley and Darragh, aft on payment, and again the executive board er much consultation betweeen themselves, went into another executive session, keeping finally paid him a part only of the money her waiting for an hour, at the end of which due him, by giving him a check on another time Sattley and Darragh emerged therebank; telling him that was the very best they from, paid her $250 on the certificate, putting could do for him, and putting him off for her off for the balance by telling her to come the balance of the money due on his certifi back again in another three days, before cate until another time, later on, before which time the bank had assigned. which time the bank had collapsed.

It was also shown that between 3 o'clock Nellie Kelley was a young sewing girl, a

and 5 o'clock of the afternoon of July 10, member of a family of five brothers and sis 1893, the defendant Sattley procured R. J. ters, who had been working out, and saving Boyd, a brother of one of the employés in the their wages, and depositing them in the bank, to sign a note for $17,850 to the bank. bank, together, for over seven years. Their Boyd owed the bank nothing, and Sattley told certificate of deposit for $3,000, representing him he wanted the amount to appear in some their joint savings of all these years, fell other name than his (Sattley's) on the books. due July 1, 1893, nine days before the deposit This note, though executed a few hours only of Christina Vogt was received. Miss Kelley before the assignment, was dated back to presented their certificate to the paying teller June 3, 1893. On June 28, 1893, Sattley and for payment the day it became due. The tel Darragh each executed his individual note to ler, as instructed, sent her to Sattley, who the Realty Investment Company for $20,000, referred her to Darragh, telling her to wait

and then had the investment company exuntil he came in. She waited for a long time, ecute two notes, each for $20,000, to the bank, and when Darragh finally came in she had a

and dated them back to April 1, 1893. These conversation with him, in Sattley's presence, transactions were carefully concealed from and asked for the $3,000 due on their certifi the other directors and stockholders by the cate of deposit. Darragh asked her if a defendant and Darragh. There was much couple of hundred dollars would not do. She evidence, both for the state and defendant, said no; that she wanted it all. He refused as to the value of the assets of the bank at

the time of the failure, that for the state come back on July 5th. She went back on tending to show the assets were worth less July 5th, and demanded all of the money due, than 30 per cent. of the bank's liabilities. but was put off again, and was given only Only one dividend of 5 per cent. had been $1,000 of the money due her, and told to realized after a year's effort. For the decome back again in a week for the balance. fendant, Darragh and other witnesses place Before that time the bank assigned, and she high valuations upon the realty and equities never received the balance of $2,000 due to held by the bank. There was ample evidence her brothers and sisters and herself.

from which the jury could have found, as it Mrs. Ida Pinkert had a certificate of de did, that the bank was hopelessly insolvent posit for $1,500, which fell due on July 5, when it assigned. 1893, on which day she presented it to the Adiel Sherwood, Warner, Dean, Gibson & paying teller for payment. The teller, obey

McLeod, Beebe & Watson, Harkless & O'Gra'ng his standing instructions, sent her to Sat

dy, and Gates & Wallace, for appellant. R. tley, from whom she demanded her money F. Walker, Atty. Gen., Morton Jourdan, Marcy due. Sattley had her sit down in his office.

K. Brown, and Frank G. Johnson, for reShe waited for half an hour, until Darragh

spondent. came. When he arrived the two officersSattley and Darragh-went into executive GANTT, P. J. (after stating the facts). session in a private room for another half Various objections are made to the indicthour, keeping her waiting, at the end of ment. First, it is said the indictment charges which they came in together, and told her no offense, because section 3581, Rev. St. 1889,

to pay her anything that day, telling her to the

1.

does not prescribe the nature of the crime, not the right or power to declare and punish which it seeks to punish, as required by sec an act as larceny which would not have been tion 27, art. 12, of the constitution of Mis larceny at common law, then the proposition souri. That section ordains that: “It shall cannot be countenanced for one moment. The be a crime, the nature and punishment of state has the power to define offenses against which shall be prescribed by law, for any its dignity and well-being, and is not in any president, director, manager, cashier, or other manner restricted by the common law in this officer of any banking institution to assent to respect. Many of the states have made emthe reception of deposits or the creation of bezzlement larceny. In Georgia it is denomidebts by such banking institution after he nated "larceny after trust." This objection is shall have had knowledge of the fact that it without merit. It is furthermore objected that is insolvent or in failing circumstances; and each of the counts in the indictment is repugany such officer, agent, or manager shall be nant to itself, because it concludes with the individually responsible for such deposits so words, "did take, steal, and carry away." received and all such debts so created with In following this form, the pleader simply his assent.” The convention, by this section, complied with a long-recognized practice, no cast upon the legislature the duty of prescrib doubt originating with the idea that every ining the nature and punishment of an act dictment for larceny, whether at common law which the convention itself had predetermined or under statutes, should conclude in this should be a crime. The legislature was en manner. Bishop, in commenting on their use joined to define the crime whose constituents in indictments for embezzlements, says: "This were already pointed out by the convention, allegation is unnecessary, but the practice is and aftix the punishment therefor. Until the to insert it, and it seems to be required by legislature performed this condition precedent, the decisions." 2 Bish. Cr. Proc. (3d Ed.) SS there was no offense. Fusz v. Spaunhorst, 67 | 315–333; Hamuel v. State, 5 Mo. 261; Com. Mo. 256. But at the regular session in 1877 v. Simpson, 9 Metc. (Mass.) 141: State v. Adthe general assembly did enact that "any ams, 108 Mo. 208, 18 S. W. 1000. And it is president, director, manager, cashier or other urged that this section 3581 is unconstituofficer of any banking institution, doing busi- / tional, and repugnant to section 1, art. 14, of ness in this state, shall receive or assent to the amendments to the constitution of the the reception of any deposit of money or other United States. The learned counsel had not valuable thing in such bank or banking insti suggested how this section collides with the tution, * * * shall create or assent to the federal constitution. Such an objection urged creation of any debts or indebtedness by such against a statute so just in its provisions, and bank or banking institution, in consideration, So essential to the protection of those who or by reason of which indebtedness any money stand most in need of it, and after its constior valuable property shall be received into tutionality has been solemnly affirmed by this such bank or banking institution after he court, without one reason, either verbally or shall have had knowledge of the fact that it is in brief, in support of the objection, strikes us insolvent or in failing circumstances, he shall as frivolous. Finally it is said that the third be deemed guilty of larceny, and upon convic count is defective in that it does not charge tion thereof shall be punished in the manner such an assenting to the creation of an inand to the same extent as is provided by law debtedness as the statute contemplates. The for stealing the same amount of money de- language is: “If any such officer,” etc., "shall posited, or valuable thing, if loss occur by create or assent to the creation of any debts reason of such deposit.” Laws Mo. 1877, p. or indebtedness by any such bank in consid239. By this enactment the legislature de eration or by reason of which indebtedness fined the crime to be of the nature of larceny, any money or valuable property shall be reand provided the same punishment therefor. ceived into such bank,” etc. Rev. St. 1889, 8 This act was added, as section 69 (a new 3581. Now, the charge is that defendant felosection), to chapter 201 of the General Stat niously assented to the creation of a certain utes of Missouri of 1865, and so continued un indebtedness by said bank, to wit, a certifitil this court held in State v. Kelsey, 89 Mo. cate of deposit payable to the order of Mrs. 623, 1 S. W. 838, that said section did not Mary Seitzler or Mrs. E. Vogt, for $300, six cover the offense, if committed by a private months after July 10, 1893, with interest at 5 bank or banker, when it was at once amended per cent. until maturity, in consideration of by the act of 1887, p. 162, so as to include the creation of which said indebtedness the "the owner, agent, or manager of any private bank received into its coffers $300 from Mrs. bank or banking institution, as well as in Vogt. It is said the statute contemplates a corporated banks, and put in the form now character of indebtedness other than that found in section 3581. So that the nature and which necessarily flows from the receipt of a the constituents of the crims, and the punish-deposit and the issuance of a certificate therement therefor, have all been prescribed in for. “Any indebtedness" is a very compresaid section and the amendments thereto. hensive expression, and we are not to be unAgain it is said that this section is repugnant derstood as limiting it to that indebtedness to the common-law definition of "larceny." If which is created by the deposit; but cerit is meant by this to say that the state oftainly the phrase, as well as the context, will Missouri, through its general assembly, has comprehend the debt created by the deposit

and the execution and delivery of the certifi- ment accompanying this opinion, the bill of

exceptions does not present any copies of in Kahn V. Bank, 70 Mo. 262, militating the various documents concerning which the against this view.

witnesses were examined and cross-examin2. An immense amount of testimony was ed, and we have no means of ascertaining taken during the trial as to the value of the whether the objections were well taken or assets of the bank. The state seems to have not. It may well be, as contended by counrelied principally upon the evidence of the sel for the state, that the notes about which appraisers appointed by the circuit court and they were questioned would show upon their the assignee, Howard M. Holden. It is as- face they were past due and not collectible, signed as error that these parties were per- and had already been charged up to profit mitted to testify as experts, when they had and loss. Once for all, we will say we cannot qualified as such. This contention is not convict the trial court of error upon any not supported by the record. Mr. Coppinger, such a showing as is here made upon the adone of the appraisers, testified: That he had mission and rejection of evidence. The burbeen president of the First National Bank den is upon the appellant to show the error. of Gunnison for the principal part of four It is apparent that many of the answers upyears.

Prior to that time, had been book- on which error is sought to be predicated keeper and assistant cashier of a bank at were called out by defendant's counsel on Holden, Mo. That he came to Kansas City | cross-examination, and then asked to be in 1884, and was a member of the firm of stricken out. We find, also, that evidence Cox & Coppinger from 1885 to 1888, as bank- complained of was stricken out at the time ers and brokers. They speculated in real by the court, upon defendant's motion. estate. In 1888 they organized the State Among other things, error is attempted to be Bank of Kansas City. That he was well based upon a ruling of the court admitting acquainted with real-estate values in said certified copies of the sworn statements city and vicinity. That he still owned prop- made by defendant and the bank officers to erty in Kansas City and its vicinity. Was the secretary of state, and yet counsel have acquainted with the financial standing of entirely omitted those statements from this people in that city. It was necessary in the record. If deemed of sufficient importance banking business. In addition to this, he for an assignment of error, it should have testified he and Mr. Moore, the other ap- been deemed material enough to be incorpraiser, personally examined every piece of porated in the record. In its absence, we real estate in Kansas City and vicinity that will not attempt to pass upon its admissibilwas inventoried as belonging to the bank. ity. When first offered, the court refused to John A. Moore, the other appraiser, testified permit counsel to inquire into the value of he had lived in Kansas City almost all of the stock of the Realty Investment Company, his life. He was a real-estate broker, and but it afterwards allowed the evidence to go had been for eight years in that city. Knew in; and, indeed, the counsel for the state the city and vicinity, and real-estate value. withdrew all objections to this character of He and Mr. Coppinger devoted 43 days to an evidence. Many depositors testified to deexamination of the real estate owned by manding their money, and the failure or re. the bank, and the real estate upon which fusal of the employés of the bank to pay loans were secured. They made a personal them. All this evidence was admissible, examination into the value of every asset whether defendant personally heard the descheduled as belonging to the bank. Mr. mands or not. It was evidence of a failure Holden, the assignee, had been engaged in of the ba ak to meet its obligations in the banking in Kansas City, and as a broker and ordinary and regular course of business. investor in real estate, for more than 20 There was no error in permitting Mr. Moore, years. As assignee, he had for a year de- the appraiser, to state the value of the Amervoted his time to collecting the assets of the ican Bank Building stock. He first stated bank, and ascertaining their value. Upon he knew it. What his means of information such a showing, we think they were compe- were was a matter for cross-examination. tent to express their opinions as to the value Nor was there any error in permitting this of the assets, as experts, and as witnesses to witness, in answer to defendant's questions, facts they had ascertained on the discharge to state that, as an appraiser, he had valued or their duties. Their estimate of the real the Denison Land Company's shares at 50 estate, under these circumstances, was in no cents on the dollar, and the Denison Land sense hearsay. Equally unfounded is the & Improvement Company at $3 per share. claim that they were permitted to give their No objection was made to it. Why it should opinion of the value of the property in Ala- have been italicized in the brief, under such bama, Kansas, and New York, concerning circumstances, is past our understanding. which they knew nothing except from a cor- Without reference or guide, we have been respondence with parties in those states. compelled to search through this immense The court rigidly excluded any estimate by record of 2,000 pages to find that defendant these witnesses of this outside property, elicited this evidence himself, and made no based upon the correspondence they had in objection to it. There was no error in rerelation to it. As remarked in the state- fusing to let the witness Root place a value

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