{ "id": 1354030, "name": "Morris v. State", "name_abbreviation": "Morris v. State", "decision_date": "1912-03-04", "docket_number": "", "first_page": "513", "last_page": "518", "citations": [ { "type": "official", "cite": "102 Ark. 513" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "99 Ark. 547", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1314480 ], "opinion_index": -1, "case_paths": [ "/ark/99/0547-01" ] }, { "cite": "45 Ark. 62", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892013 ], "opinion_index": -1, "case_paths": [ "/ark/45/0062-01" ] }, { "cite": "48 Ark. 94", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1887770 ], "opinion_index": -1, "case_paths": [ "/ark/48/0094-01" ] }, { "cite": "134 Mo. 238", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8842801 ], "opinion_index": -1, "case_paths": [ "/mo/134/0238-01" ] }, { "cite": "154 Ind. 443", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1592739 ], "opinion_index": -1, "case_paths": [ "/ind/154/0443-01" ] }, { "cite": "43 Ark. 93", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1894447 ], "opinion_index": -1, "case_paths": [ "/ark/43/0093-01" ] }, { "cite": "29 Ark. 68", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882923 ], "opinion_index": -1, "case_paths": [ "/ark/29/0068-01" ] }, { "cite": "53 Ark. 334", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1911691 ], "opinion_index": -1, "case_paths": [ "/ark/53/0334-01" ] }, { "cite": "38 Ark. 519", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900464 ], "opinion_index": -1, "case_paths": [ "/ark/38/0519-01" ] }, { "cite": "91 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1511837 ], "opinion_index": -1, "case_paths": [ "/ark/91/0001-01" ] }, { "cite": "23 Ark. 34", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1866045 ], "opinion_index": -1, "case_paths": [ "/ark/23/0034-01" ] }, { "cite": "99 Ark. 547", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1314480 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/99/0547-01" ] } ], "analysis": { "cardinality": 501, "char_count": 11216, "ocr_confidence": 0.603, "pagerank": { "raw": 2.42046019804792e-07, "percentile": 0.80094843367316 }, "sha256": "b265c180d9bfb150fb78a143cb5f73e9c99f6d343b345331c8c28d0eb63f37a8", "simhash": "1:0224c42d4f170269", "word_count": 1904 }, "last_updated": "2023-07-14T16:46:02.304731+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Morris v. State." ], "opinions": [ { "text": "Wood, J.\nAppellant was convicted under section 1814 of Kirby\u2019s Digest of the crime of accepting and receiving on deposit money at the Bank of Siloam, of which he was president, after the said bank had become insolvent, and he appeals to this court.\nThe indictment charges, in substance, that he \u201cknowingly and feloniously did accept and receive on deposit in said Bank of Siloam, a corporation doing a banking business, from M. E. Gaither the sum of one hundred dollars in gold, silver and paper money, current money, the bank being then and there insolvent and the said R. S. Morris being the president of said bank, well knowing at the time he accepted and received the money 'on deposit that the Bank of Siloam was insolvent.\u201d\nExcepting the name of the defendant and the amount alleged to have been received, the indictment was precisely the same in form as that approved by this court in Davey v. State, 99 Ark. 547.\nA corporation can only act through its agents. The allegations of the indictment were sufficient to charge that the bank had received and accepted the deposit while insolvent, and that the appellant, who was president of the bank, and who acted for it in receiving and accepting the money on deposit, knew at the time the bank was insolvent, and therefore violated the provisions of the statute in thus accepting the money on deposit.\nIt was unnecessary for the indictment to charge in specific terms that appellant was an officer of the bank. He was designated in the indictment as president of the bank, which was sufficient to show that he was an officer of the bank. The allegations of the indictment were amply sufficient to show that the bank, through its duly constituted agent, accepted and received the deposit, being at the time insolvent, and that the appellant, being at the time president, and therefore an officer of the bank, and knowing of its insolvency, accepted and received the deposit. Everything necessary to constitute the offense charged was stated.\nThe appellant was indicted as principal offender, and not as an accessory, under the terms of the statute.\nThe terms \u201caccept\u201d and \u201creceive\u201d as used in the statute are synonymous, and are intended to describe but one offense. The indictment shows that it was returned by the grand jury of Benton County, and that it was filed in open court. The indictment was in the form prescribed by section 2244 of Kirby\u2019s Digest, and was both in form and substance a valid indictment, as held in Davey v. State, supra.\nThe appellant filed a motion for continuance in due form, setting up, in substance, that he was in no condition, either mentally or physically, to undergo a trial. He showed that he was seventy-four years of age, and that, about eighteen months prior' to August 6, 1910, he had suffered a stroke of paralysis which had incapacitated him for the transaction of business, and that about the first of November, 1910, he suffered a stroke of apoplexy; that by reason of these afflictions he was under the treatment of physicians who advised that a trial at that time, with \u201cits necessary attendant mental and physical strain upon a charge of felony, would tend to end fatally.\u201d He supports his motion with the affidavits of several physicians, to the effect that on account of the mental and physical condition of the appellant, brought about by the afflictions indicated, \u201cthe excitement of a trial might bring about a recurrence of the ailment, which might end in immediate death,\u201d and. that in the opinion of these physicians \u201che was unable to attend court or to testify as a witness.\u201d\nThe motion was also supported by the affidavit of appellant\u2019s counsel, in which he sets up, among other things, that from November 1, 1910, to about February 15, 1911, he, as appellant\u2019s counsel was warned by the physicians not to talk or communicate with appellant \u201cas his physical and mental condition would not permit such consultation as was necessary for the preparation of his defense in the case of a felony;\u201d that, by reason of appellant\u2019s infirmities and the restriction placed upon him and his counsel by his advising and consulting physicians, \u201cappellant had not had reason enough to appreciate his peril or act advisedly with counsel in suggesting such facts as \u201cwould break the force of the prosecuting evidence,\u201d and had not been able \u201cto adduce such exculpatory proof as his case would warrant.\u201d\nMotions for continuance are addressed to the sound discretion of the court, and such discretion will not be controlled unless it appears that it was abused. The appellant was a witness in his own behalf at the trial, and his testimony, as set out in the abstract of the Attorney General, does not disclose any inherent weakness or indicate that the appellant was in any manner incapacitated as a witness by reason of his age or the physical infirmities described by his counsel and physicians. His evidence does not, upon its face, give any indication that appellant was laboring under any physical or mental disability.\nCounsel, in his affidavit, did not set forth any material evidence of which he was deprived by reason of the mental and physical infirmity of his client, nor show specifically wherein his client was unable to give him specific information that would be useful in the preparation for and in the conduct of his defense.\nThe affidavits of the physicians, after setting forth the nature of his ailments, simply expressed the opinion that the appellant was unable, on account of his infirmities, to testify as a witness, and that to do so would endanger his life. But appellant did testify as a witness, and went through the' ordeal of a trial, and it does not appear that his life was endangered thereby, thus showing that the apprehension of the physicians was erroneous.\nWhile it occurs to us that the trial court might very appropriately, under the circumstances, have granted the continuance, yet we can not say that his refusal to do so resulted in any prejudice to the appellant, and therefore it was not an abuse of the court\u2019s discretion, and was not such an error as should reverse the judgment.\nThe indictment alleged that \u201cthe sum of one hundred dollars in gold, silver and paper money, current money in the State of Arkansas, of the value of one hundred dollars,\u201d etc., was accepted and received. The testimony shows that eleven dollars of the amount charged was in currency and the residue was in checks. The amount received was evidenced by the deposit slip, showing the sum of eleven dollars in currency and the balance in checks. The appellant objected to the introduction of the deposit slip and to the testimony tending to show that the deposit consisted of checks instead of currency, and he now contends that there was a fatal variance on this account between the allegtions of the indictment and the proof. The contention is not sound. The proof was sufficient to show that eleven dollars in currency were accepted and received,'and checks representing the balance of the amount alleged were received. The offense, under the statute, was complete if the appellant knowingly received any amount of money, and it was proved by evidence tending to show that he received the sum of eleven dollars in currency. It was wholly unnecessary to show that he received the full amount charged in order to sustain a conviction; proof of any amount was sufficient.\nWe deem it unnecessary to set out the evidence. After careful consideration, we are of the opinion that it is amply sufficient to sustain the verdict. No objection is urged here to the instructions of the court. We assume, therefore, that they were correct.\nFinding no reversible error, the judgment is affirmed.", "type": "majority", "author": "Wood, J." } ], "attorneys": [ "R. F. Forrest, for appellant.", "Hal L. Norwood, Attorney General, and William H. Rector, Assistant, for appellee." ], "corrections": "", "head_matter": "Morris v. State.\nOpinion delivered March 4, 1912\n1. Banks and banking \u2014 receiving deposits after insolvency. \u2014 An \u2022 indictment of the president of an incorporated bank for receiving deposits when he knew that the bank was insolvent was sufficient where it alleged that he knowingly and feloniously did accept and receive on deposit in said bank, a corporation doing a banking business, from a certain person a sum named, the bank being then and there insolvent and the said defendant being president thereof, well knowing at the time he accepted and received the money that said bank was insolvent. (Page 515.)\n2. Same \u2014 sufficiency of indictment. \u2014 An indictment of a bank president for receiving deposits after he knew that the bank was insolvent, which designates .him as president of the bank, is sufficient to show that he was an officer of the bank. (Page 515.)\n3. Same \u2014 receiving deposits after insolvency. \u2014 Under Kirby\u2019s Digest, section 1814, forbidding any officer of the bank to receive or accept deposits after the bank is insolvent, the words \u201creceive\u201d and \u201caccept\u201d are synonymous, and intended to describe but one offense. (Page 515.)\n4. Continuance \u2014 discretion of court. \u2014 Where, in a felony trial, a continuance was asked on the ground that, in the opinion of his physicians, defendant\u2019s physical condition was such that the excitement of a trial might result fataliy, but the court refused the continuance, and it does not appear that any prejudice resulted to the defendant, no abuse of the court\u2019s discretion is shown. (Page 516.)\n5. Banks and banking \u2014 receiving money after insolvency \u2014 variance. \u2014 Where indictment of a bank officer for receiving money after insolvency of the bank alleged the receipt of \u201cone hundred dollars in gold, silver and paper money, cunent money in the State of Arkansas,\u201d proof that defendant received eleven dollars of the amount charged in currency and the residue in checks is not a variance, as proof of receiving any amount in currency was sufficient. (Page 517.)\nAppeal from Washington Circuit Court; J. S. Maples. Judge;\naffirmed.\nR. F. Forrest, for appellant.\n1. In view of the mental and physical condition of appellant as set up in the motion for a continuance and supported by the testimony of medical experts, the court abused its discretion in overruling the motion. 23 Ark. 34.\n2. The statute under which the indictment is drawn is a criminal statute and must be strictly construed. No case can be brought within its provisions unless it is within both the letter and spirit of the law. The demurrer to the indictment should have been sustained. 91 Ark. 1; Lewis, Sutherland, Stat. Con. 456-9; 415-25; 38 Ark. 519; 53 Ark. 334; 29 Ark. 68; 43 Ark. 93; 154 Ind. 443.\nThe indictment is bad for duplicity. The statute is disjunctive, creating and for the punishment of two offenses, (1) receiving and (2) accepting the deposit. The two offenses should be charged in separate counts. 134 Mo. 238-243; Kirby\u2019s Digest, \u00a7 2230; 48 Ark. 94; 45 Ark. 62.\nHal L. Norwood, Attorney General, and William H. Rector, Assistant, for appellee.\n1. An examination of the testimony supporting the motion for continuance shows that there was no abuse of discretion in overruling the motion; and this fact is made clearer by an examination of appellant\u2019s testimony given at the trial, from which it appears that he was fully competent, mentally, to cope with the situation.\n.2. The indictment is sufficient. It is identical in form with that in Davey v. State, 99 Ark. 547." }, "file_name": "0513-01", "first_page_order": 537, "last_page_order": 542 }