by way of indorsement, owed the bank $164,000, with security worth about $96,000. But the most glaring of all the schemes for swallowing up the money of the depositors were the transactions with the Realty Investment Company. This institution was organized in Kansas City, January 25, 1890, with a nominal capital of $100,000. Sattley was the secretary and treasurer of this realty company, and a young clerk in the employ of the bank was its president. The office of this company was in a small room over the bank. By the manipulation of Sattley, with the assistance of Darragh, $416,400 of the bank's money was turned over to this realty company, and when the bank collapsed all the security it had was some property which was assessed at $63,250, --a loss exceeding by $50,000 the total capital stock of the bank. Under defendant's management the bank had absorbed 997 shares of the 1,000 shares of the capital stock of the realty company, and this stock, which nominally represented $99,700, was absolutely worthless on July 10, 1893. Insolvent as that company was, the defendant and the president, Darragh, permitted it to borrow of the bank's funds, upon its unsecured paper, and within the six months preceding the failure of the bank, $223,824. On January 3, 1893, loaned. February 1, 1893, loaned. $ 6,800 30,000 30,000 20,000 20,000 50,000 27,000 8,210 20,317 11,000 497 Total (without security)...... $223,824 All that the assignee, Holden, could find to apply on the $50,000 note of April 26, 1893, was a second-hand office desk, which netted $15, and was credited on the note, leaving all of said unsecured notes a total loss to the bank and its depositors. Another concern-by name, the Corbin Investment Company-was used as a conduit to extract the money of the bank, and resulted in a loss of $44,000. This character of evidence was admitted to show that these transactions leading up to the insolvency and ruin of the bank were directed and executed by the aid and assistance of defendant, and that he could not be ignorant of the true condition of the bank. But it was shown further that just prior to the assignment, on April 28, 1893, the bank owned $83,000 worth of Pine Bluff Water & Light Company's receiver's certificates, and sent them to the Equitable Mortgage Company, in New York, for collection. They were collected at once, but no returns were ever made to the bank until July 5, 1893 (just five days before the assignment), when this claim was settled by simply charging it up to the Equitable Mortgage Company (a concern which had overdrawn $23,000 of the bank's money); and on that date the defendant and Darragh accepted of the Equitable Mortgage Company stock of the bank of the nominal value of $60,000, at its face value, when in truth and fact, it would seem, it was without value, and said mortgage company had acquired it without paying anything for it. It was also shown that W. P. Moores was the vice president of this bank. He had made a trip to the East to obtain money to tide over the bank, but had failed. The bank was indebted to Moores and his relatives on time deposits to the amount of $42,178. Moores, on his return from the East, demanded this money, but, not having it, the president and the cashier picked out the choicest securities held by the bank, and on July 5, 1893, turned them over to Moores in settlement of his claims. But it was in evidence, further, that, while the bank was thus preferring its vice president, poor and needy depositors were trying in vain to get their money upon exactly similar certificates. On June 13, 1893, about one month before Mrs. Vogt made the deposit described in the indictment, the bank gave notice it would not pay money on checks unless 90 days' notice was given. Of course, it could not limit its liability on time certificates of deposit. They were payable absolutely when they fell due. The bank, notwithstanding its refusal to pay without notice, continued to receive deposits up to the hour of closing on July 10, 1893; and it is in evidence that at 3 o'clock that afternoon Mr. Bales, a son of one of the directors, was told of the anticipated assignment by the president, and he says that they met at the bank about 7:30 o'clock that evening to discuss the matter, and the deed of assignment was already drawn by Mr. McLeod, one of the bank's attorneys, and was signed that night, with the understanding it was to go on record next morning. Christina Vogt, who made the deposit upon which the indictment is based, was president of the Bethlehem Ladies' Society, a voluntary association, which was a church society organized by the lady members of a struggling Lutheran church of that name, for charitable work, and for the purpose of accumulating sufficient means to erect a permanent place of worship. The money deposited had been accumulated gradually by the society, by the payment of monthly dues by the members, and by holding fairs, festivals, and similar church work. Mrs. Vogt, as a member and officer of the society, was intrusted with the keeping of its funds, and allowed by her husband to devote her time and labor to the work of the society. She had been depositing the savings of the society with the bank for over three years, they having all been merged into one certificate of deposit for $205, which fell due on July 10, 1893,-the very day upon which the assignment was made. Mrs. Vogt went to the bank on that day, about 3 o'clock p. m., draw it out, and her life's savings went with the bank's collapse a short time afterwards. to draw the money out, and was refused | agreed to her, he flatly refused to let her payment, and was induced by representations made as to the solvency of the bank by the teller, in the presence of defendant, to redeposit the old certificate, and to deposit in addition thereto, on that day, the sum of $89 in money, for which a new certificate of deposit was issued by the bank for $300, due in six months thereafter, at 5 per cent. interest, and made "payable to the order of Mrs. Mary Seitzler or Mrs. E. Vogt"; her husband's name being E. Vogt, and Mrs. Seitzler being an officer, also, of the same society. The defendant, Sattley, was present when the money was received and the obligation issued, and himself signed the certificate of deposit, as cashier of the bank. Stephen Hull, an aged minister, had been saving and depositing in the bank for 11 years. He had a certificate of deposit which fell due on June 16, 1893, and called to collect it on that day. He was going towards the paying teller's window with his certificate, when Sattley intercepted him,-headed him off,-took him into his private room, and begged him not to draw out his money. Finding that Mr. Hull was determined to draw out the money, on acccount of his suspicions as to the bank's condition, he importuned him in the strongest terms not to draw it out; and in order to deceive him, and induce him to allow his money to remain, he assured him in the strongest terms that the bank was perfectly secure, and that it was "as sound as the Bank of England," and "the very place for an old man like him to leave his money." Sattley, notwithstanding Mr. Hull insisted that he was greatly in need of it, refused to pay him the $1,000 due, but finally, after much urging, let him have only $35 of the amount due him on his certificate. Mary Corrigan was a domestic who had saved her earnings for many years, until she had accumulated about $600, which was deposited in another savings bank, where it was drawing 3 per cent. interest, but perfectly secure. Passing by one day, she saw the sign out, where this bank was bidding 5 per cent. interest for all money deposited. She dropped in, and Sattley induced her to draw her savings out of the other bank, and deposit them with his. She became uneasy shortly afterwards, and went down a week before they posted up the notice requiring time on book accounts before money could be drawn out. She saw Sattley, and asked to have her savings back, telling him "that she had worked out for the money the best years of her life, and that she valued it as much as her life itself, because she had been saving it slowly for years to pay off the mortgage on her home." Sattley tried to reassure her by telling her to go home and feel secure that "her money was as safe as if she had it in her own pocket"; but when she finally insisted on having it, as he had C. A. Stavnon, a manufacturer, in June 10, 1893, who contemplated making a deposit, first had a talk with Sattley to ascertain the bank's condition. He told Sattley that he had heard some rumors as to the bank's condition, and its methods of doing business. Sattley laughed at the rumors, and said "the bank was the most solid institution in the country, and that it was safer than any national bank; that the bank never loaned out any money except on gilt-edged security, and didn't take commercial paper, like a national bank, but only loaned out its money on first mortgages; and that the bank was so prosperous that it was paying 30 per cent. dividends." On the strength of Sattley's representations as to the bank's condition, Mr. Stavnon deposited $2,095, the amount for which he had just sold out his business. A few days afterwards the bank posted up its notice refusing to pay out money on book accounts, except on 90 days' notice. Mr. Stavnon went in again to see Sattley about it, who avoided him, but upon returning a third time he secured an interview. Sattley said "there was not a more solid institution in the country; that they didn't have any security except what was gilt-edged, and worth several times the amount loaned upon it.." When Mr. Stavnon deposited his money, it was with the distinct understanding, had with Sattley, that he could draw it out at any time; but, nevertheless, Sattley refused to let him draw it out, and gave as their reason for suspending payments to depositors that "they were not going to allow themselves to be bulldozed and run over by them." Susan Talbott was an aged widow, who sewed for a living. She had been a customer of the bank for several years, she and her daughter sewing and saving, and putting their earnings in the bank. On June 22, 1893, she went to the bank to get a draft for $132 cashed, which had been sent to her by her son. Such was the bank's condition that they refused to cash even so small a draft for a known customer of the bank. Finally, after a consultation between Sattley and the paying teller, Sattley agreed to cash it for her, provided she would accept only $32 in cash for it, and take the bank's obligation for the remaining $100, due on July 15, 1893, which she did,-before which time the bank failed. fo Michael O'Sullivan had a certificate of deposit for $3,619, which fell due July 3, 1893, which represented his savings of over 20 years as a street laborer. He went to the bank on the morning of July 3d, and asked for the money due him. The paying teller, as usual, acting under instructions, refused to pay it, and sent him to Sattley, who took him to Darragh; and they both talked with him for some time, in the effort to induce him not to draw out his money, telling him the bank was one of the soundest in the country. Finally, when he insisted on having the money due him, they flatly refused to pay him. Mr. O'Sullivan stood upon his rights, told them he must have his money, and threatened to cause them trouble if they did not pay it to him. They then wanted they could not pay her all the money due her, but could only pay her $500 of that amount. She demanded the full amount which was then due, but Sattley and Darragh told her she would have to wait a while before they could pay her the rest. She still insisted on the bank's paying her the full amount due, him to take $500 only, and claimed they but they refused, and told her to come back could pay him no more, but would fix the rest of it up later on. O'Sullivan, however, insisted strenuously upon having all his money due him, and they finally told him to come back in an hour, and they would see if they could pay him. In an hour he returned, and they still endeavored to put him off again, but he still insisted so strenuously upon having his money, or making them trouble if he did not get it, that Sattley and Darragh, after much consultation betweeen themselves, finally paid him a part only of the money due him, by giving him a check on another bank; telling him that was the very best they could do for him, and putting him off for the balance of the money due on his certificate until another time, later on, before which time the bank had collapsed. Nellie Kelley was a young sewing girl, a member of a family of five brothers and sisters, who had been working out, and saving their wages, and depositing them in the bank, together, for over seven years. Their certificate of deposit for $3,000, representing their joint savings of all these years, fell due July 1, 1893, nine days before the deposit of Christina Vogt was received. Miss Kelley presented their certificate to the paying teller for payment the day it became due. The teller, as instructed, sent her to Sattley, who referred her to Darragh, telling her to wait until he came in. She waited for a long time, and when Darragh finally came in she had a conversation with him, in Sattley's presence, and asked for the $3,000 due on their certificate of deposit. Darragh asked her if a couple of hundred dollars would not do. She said no; that she wanted it all. He refused to pay her anything that day, telling her to come back on July 5th. She went back on July 5th, and demanded all of the money due, but was put off again, and was given only $1,000 of the money due her, and told to come back again in a week for the balance. Before that time the bank assigned, and she never received the balance of $2,000 due to her brothers and sisters and herself. Mrs. Ida Pinkert had a certificate of deposit for $1,500, which fell due on July 5, 1893, on which day she presented it to the paying teller for payment. The teller, obey'ng his standing instructions, sent her to Sattley, from whom she demanded her money due. Sattley had her sit down in his office. She waited for half an hour, until Darragh came. When he arrived the two officersSattley and Darragh-went into executive session in a private room for another half hour, keeping her waiting, at the end of which they came in together, and told her again in three days. At the end of three days, on July 8th, she went back again for the balance of her money due. Again the executive board of the bank, composed of its head officers, Sattley and Darragh, went into executive session. At the end of the executive session they came out, and announced that the bank was not able to meet its obligation. She strenuously insisted, however, on payment, and again the executive board went into another executive session, keeping her waiting for an hour, at the end of which time Sattley and Darragh emerged therefrom, paid her $250 on the certificate, putting her off for the balance by telling her to come back again in another three days, before which time the bank had assigned. It was also shown that between 3 o'clock and 5 o'clock of the afternoon of July 10, 1893, the defendant Sattley procured R. J. Boyd, a brother of one of the employés in the bank, to sign a note for $17,850 to the bank. Boyd owed the bank nothing, and Sattley told him he wanted the amount to appear in some other name than his (Sattley's) on the books. This note, though executed a few hours only before the assignment, was dated back to June 3, 1893. On June 28, 1893, Sattley and Darragh each executed his individual note to the Realty Investment Company for $20,000, and then had the investment company execute two notes, each for $20,000, to the bank, and dated them back to April 1, 1893. These transactions were carefully concealed from the other directors and stockholders by the defendant and Darragh. There was much evidence, both for the state and defendant, as to the value of the assets of the bank at the time of the failure, that for the state tending to show the assets were worth less than 30 per cent. of the bank's liabilities. Only one dividend of 5 per cent. had been realized after a year's effort. For the defendant, Darragh and other witnesses placed high valuations upon the realty and equities held by the bank. There was ample evidence from which the jury could have found, as it did, that the bank was hopelessly insolvent when it assigned. Adiel Sherwood, Warner, Dean, Gibson & McLeod, Beebe & Watson, Harkless & O'Grady, and Gates & Wallace, for appellant. R. F. Walker, Atty. Gen., Morton Jourdan, Marcy K. Brown, and Frank G. Johnson, for respondent. GANTT, P. J. (after stating the facts). 1. Various objections are made to the indictment. First, it is said the indictment charges no offense, because section 3581, Rev. St. 1889, does not prescribe the nature of the crime which it seeks to punish, as required by section 27, art. 12, of the constitution of Missouri. That section ordains that: "It shall be a crime, the nature and punishment of which shall be prescribed by law, for any president, director, manager, cashier, or other officer of any banking institution to assent to the reception of deposits or the creation of debts by such banking institution after he shall have had knowledge of the fact that it is insolvent or in failing circumstances; and any such officer, agent, or manager shall be individually responsible for such deposits so received and all such debts so created with his assent." The convention, by this section, cast upon the legislature the duty of prescribing the nature and punishment of an act which the convention itself had predetermined should be a crime. The legislature was enjoined to define the crime whose constituents were already pointed out by the convention, and affix the punishment therefor. Until the legislature performed this condition precedent, there was no offense. Fusz v. Spaunhorst, 67 Mo. 256. But at the regular session in 1877 the general assembly did enact that "any president, director, manager, cashier or other officer of any banking 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, * * * shall create or assent to the creation of any debts or indebtedness by such bank or banking institution, in consideration, or by reason of which indebtedness any money or valuable property shall be received into such bank or banking institution after he shall have had knowledge of the fact that it 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, if loss occur by reason of such deposit." Laws Mo. 1877, p. 239. By this enactment the legislature defined the crime to be of the nature of larceny, and provided the same punishment therefor. This act was added, as section 69 (a new section), to chapter 201 of the General Statutes of Missouri of 1865, and so continued until this court held in State v. Kelsey, 89 Mo. 623, 1 S. W. 838, that said section did not cover the offense, if committed by a private bank or banker, when it was at once amended by the act of 1887, p. 162, so as to include "the owner, agent, or manager of any private bank or banking institution," as well as incorporated banks, and put in the form now found in section 3581. So that the nature and the constituents of the crime, and the punishment therefor, have all been prescribed in said section and the amendments thereto. Again it is said that this section is repugnant to the common-law definition of "larceny." If it is meant by this to say that the state of Missouri, through its general assembly, has not the right or power to declare and punish an act as larceny which would not have been larceny at common law, then the proposition cannot be countenanced for one moment. The state has the power to define offenses against its dignity and well-being, and is not in any manner restricted by the common law in this respect. Many of the states have made embezzlement larceny. In Georgia it is denominated "larceny after trust." This objection is without merit. It is furthermore objected that each of the counts in the indictment is repugnant to itself, because it concludes with the words, "did take, steal, and carry away." In following this form, the pleader simply complied with a long-recognized practice, no doubt originating with the idea that every indictment for larceny, whether at common law or under statutes, should conclude in this manner. Bishop, in commenting on their use in indictments for embezzlements, says: "This allegation is unnecessary, but the practice is to insert it, and it seems to be required by the decisions." 2 Bish. Cr. Proc. (3d Ed.) §§ 315-333; Hamuel v. State, 5 Mo. 261; Com. v. Simpson, 9 Metc. (Mass.) 141: State v. Adams, 108 Mo. 208, 18 S. W. 1000. And it is urged that this section 3581 is unconstitutional, and repugnant to section 1, art. 14, of the amendments to the constitution of the United States. The learned counsel had not suggested how this section collides with the federal constitution. Such an objection urged against a statute so just in its provisions, and so essential to the protection of those who stand most in need of it, and after its constitutionality has been solemnly affirmed by this court, without one reason, either verbally or in brief, in support of the objection, strikes us as frivolous. Finally it is said that the third count is defective in that it does not charge such an assenting to the creation of an indebtedness as the statute contemplates. The language is: "If any such officer," etc., "shall create or assent to the creation of any debts or indebtedness by any such bank in consideration or by reason of which indebtedness any money or valuable property shall be received into such bank," etc. Rev. St. 1889, § 3581. Now, the charge is that defendant feloniously assented to the creation of a certain indebtedness by said bank, to wit, a certificate of deposit payable to the order of Mrs. Mary Seitzler or Mrs. E. Vogt, for $300, six months after July 10, 1893, with interest at 5 per cent. until maturity, in consideration of the creation of which said indebtedness the bank received into its coffers $300 from Mrs. Vogt. It is said the statute contemplates a character of indebtedness other than that which necessarily flows from the receipt of a deposit and the issuance of a certificate therefor. "Any indebtedness" is a very comprehensive expression, and we are not to be understood as limiting it to that indebtedness which is created by the deposit; but certainly the phrase, as well as the context, will comprehend the debt created by the deposit and the execution and delivery of the certificate of deposit in this case. There is nothing in Kahn v. Bank, 70 Mo. 262, militating against this view. 2. An immense amount of testimony was taken during the trial as to the value of the assets of the bank. The state seems to have relied principally upon the evidence of the appraisers appointed by the circuit court and the assignee, Howard M. Holden. It is assigned as error that these parties were permitted to testify as experts, when they had not qualified as such. This contention is not supported by the record. Mr. Coppinger, one of the appraisers, testified: That he had been president of the First National Bank of Gunnison for the principal part of four years. Prior to that time, had been bookkeeper and assistant cashier of a bank at Holden, Mo. That he came to Kansas City in 1884, and was a member of the firm of Cox & Coppinger from 1885 to 1888, as bankers and brokers. They speculated in real estate. In 1888 they organized the State Bank of Kansas City. That he was well acquainted with real-estate values in said city and vicinity. That he still owned property in Kansas City and its vicinity. Was acquainted with the financial standing of people in that city. It was necessary in the banking business. In addition to this, he testified he and Mr. Moore, the other appraiser, personally examined every piece of real estate in Kansas City and vicinity that was inventoried as belonging to the bank. John A. Moore, the other appraiser, testified he had lived in Kansas City almost all of his life. He was a real-estate broker, and had been for eight years in that city. Knew the city and vicinity, and real-estate value. He and Mr. Coppinger devoted 43 days to an examination of the real estate owned by the bank, and the real estate upon which loans were secured. They made a personal examination into the value of every asset scheduled as belonging to the bank. Holden, the assignee, had been engaged in banking in Kansas City, and as a broker and investor in real estate, for more than 20 years. As assignee, he had for a year devoted his time to collecting the assets of the bank, and ascertaining their value. value. Upon such a showing, we think they were competent to express their opinions as to the value of the assets, as experts, and as witnesses to facts they had ascertained on the discharge or their duties. Their estimate of the real estate, under these circumstances, was in no sense hearsay. Equally unfounded is the claim that they were permitted to give their opinion of the value of the property in Alabama, Kansas, and New York, concerning which they knew nothing except from a correspondence with parties in those states. The court rigidly excluded any estimate by these witnesses of this outside property, based upon the correspondence they had in relation to it. As remarked in the state Mr. ment accompanying this opinion, the bill of exceptions does not present any copies of the various documents concerning which the witnesses were examined and cross-examined, and we have no means of ascertaining whether the objections were well taken or not. It may well be, as contended by counsel for the state, that the notes about which they were questioned would show upon their face they were past due and not collectible, and had already been charged up to profit and loss. Once for all, we will say we cannot convict the trial court of error upon any such a showing as is here made upon the admission and rejection of evidence. The burden is upon the appellant to show the error. It is apparent that many of the answers upon which error is sought to be predicated were called out by defendant's counsel on cross-examination, and then asked to be stricken out. We find, also, that evidence complained of was stricken out at the time by the court, upon defendant's motion. Among other things, error is attempted to be based upon a ruling of the court admitting certified copies of the sworn statements made by defendant and the bank officers to the secretary of state, and yet counsel have entirely omitted those statements from this record. If deemed of sufficient importance for an assignment of error, it should have been deemed material enough to be incorporated in the record. In its absence, we will not attempt to pass upon its admissibility. When first offered, the court refused to permit counsel to inquire into the value of the stock of the Realty Investment Company, but it afterwards allowed the evidence to go in; and, indeed, the counsel for the state withdrew all objections to this character of evidence. Many depositors testified to demanding their money, and the failure or re fusal of the employés of the bank to pay them. All this evidence was admissible, whether defendant personally heard the demands or not. It was evidence of a failure of the bank to meet its obligations in the ordinary and regular course of business. There was no error in permitting Mr. Moore, the appraiser, to state the value of the American Bank Building stock. He first stated he knew it. What his means of information were was a matter for cross-examination. Nor was there any error in permitting this witness, in answer to defendant's questions, to state that, as an appraiser, he had valued the Denison Land Company's shares at 50 cents on the dollar, and the Denison Land & Improvement Company at $3 per share. No objection was made to it. Why it should have been italicized in the brief, under such circumstances, is past our understanding. Without reference or guide, we have been compelled to search through this immense record of 2,000 pages to find that defendant elicited this evidence himself, and made no objection to it. There was no error in refusing to let the witness Root place a value |