Opinion
Opinion filed May 23, 1929.
1. — Indictment and Information — Must not Charge in the Disjunctive. Where defendant was charged by information under section 3365, Revised Statutes Mo. 1919, "unlawfully and willfully did have, take and receive or assent to the reception on deposit in the said Piney River State Bank, etc.," held, the information failed to inform defendant whether he was to defend against a charge of consenting to receiving of deposit or actually receiving a deposit with knowledge of bank's failing condition, and was fatally defective.
2. — Criminal Law — Fatal Defect on Face of Indictment or Information May be Raised at Any Time. If an information or indictment is fatally defective on its face, objection may be raised at any time, even in appellate court.
3. — Indictment and Information. Where acts are described disjunctively in a statute, if they are not repugnant, they should be charged conjunctively in an indictment or information, and failure to so charge makes the indictment or information fatally defective.
Appeal from Texas County Circuit Court. — Hon. W.E. Barton, Judge.
REVERSED AND REMANDED.
Hiett, Lamar Covert, Dale E. Moberly and C.H. Jackson for appellant.
(1) Section 3365, Revised Statutes 1919, creates three offenses, two of which only are pertinent so far as this case is concerned: (a) For any officer of any banking institution to receive a deposit of money, or other valuable thing after he has knowledge that bank is insolvent or in failing condition. (b) For any officer to assent to reception or any deposit, etc. The officer taking the deposit may not have known that bank was insolvent or in failing condition at time he took deposit, and he would be guilty of no offense in taking it, yet, if some other officer of the bank at time of receipt of deposit, knew bank was insolvent or in failing circumstances and acquiesced in reception of the deposit, he would be guilty of an offense under the statute. Ex parte Rickey, 100 P. 134, 135 Am. St. Rep. 651; State v. Lewis, 139 S.E. 386; State v. Sattley, 131 Mo. 464; State v. Wells, 134 Mo. 238. (2) The information by use of disjunctive "or" instead of conjunctive "and" does not charge any offense under the law of this state. State v. Bilyen, 295 S.W. 104; State v. King, 285 S.W. 794; State v. Flynn, 258 Mo. 221; State v. Disbennet, 7 S.W.2d 386. (3) If an information states no offense, such defect is fatal at any stage of the proceedings, and is not waived by failure to take advantage thereof in trial court, but may be raised for first time in appellate court. State v. Levy, 119 Mo. 434; State v. Morgan, 222 S.W. 425; State v. Bilyeu, 295 S.W. 104; Sec. 3908, R.S. 1919; Fed. Rep., Vol. 266, No. 6850. (4) Mere showing of past due notes is no evidence of insolvency of said notes. State v. Walser, 1 S.W.2d 146; Akin v. Hull et al., 9 S.W.2d 688.
Raymond G. Corbett for respondent.
Defendant was charged as a director of the Piney River State Bank, with unlawfully taking, having and receiving or assenting to the reception on deposit in said bank of the sum of $27.50, after he knew that said bank was in failing circumstances. Upon a trial to a jury he was convicted and his punishment assessed at a fine of $100. Defendant appeals.
The first point made by defendant is that the information charges no offense. The information is based on section 3365, Revised Statutes 1919, the pertinent part of which, reads as follows: "If any president, director, manager, cashier or other officer of any banking institution . . . shall receive or assent to the reception of any deposit of money or other valuable thing in such bank or banking institution . . . after he shall had knowledge of the fact that such banking institution . . . is insolvent or in failing circumstances, he shall be deemed guilty of larceny." (Italics ours.)
It is defendant's contention that the statute creates two separate and distinct offenses i.e., one of receiving a deposit after knowledge of the bank's failing condition and the other of assenting to the reception of any deposit after such knowledge; that the information charged the defendant "unlawfully and willfully did have, take and receive or assent to the reception on deposit in the said Piney River State Bank." (Italics ours.) It is further contended that the information, by the use of the disjunctive "or" instead of the conjunctive "and," fails to charge any offense under the law of this state.
Our Supreme Court has held that an information which charges that defendant did unlawfully manufacture "hootch, moonshine or corn whiskey" (italic ours), states no offense. It is said that, "where the statute describes acts or offenses disjunctively, the indictment or information should charge them conjunctively, if they are not repugnant." [State v. Bilyeu, 295 S.W. 104, l.c. 105; State v. King, 285 S.W. 794; State v. Flynn, 258 Mo. 211, 167 S.W. 516; State v. Disbennett, 7 S.W. 386.] We think this case clearly falls within that rule.
Plaintiff suggests that in a misdemeanor action no demurrer to an information filed after an entry of a plea of not guilty (as here), will be considered unless the plea of not guilty be withdrawn, citing State v. Earll, 225 Mo. 537. But we understand the rule to be that where an information is fatally defective on its face, the objection thereto may be raised for the first time even in the appellate court. [State v. Winterbauer, 300 S.W. 1071; State v. Morgan, 222 S.W. 425; Ex parte Sydnor, 10 S.W.2d 63.]
The information is this case fails to inform defendant whether he is to defend against a charge of consenting to the receiving of a deposit or actually receiving a deposit with knowledge of the bank's failing condition. He is entitled to a clear statement of the crime with which he is charged, under the cases cited.
Other errors are assigned which need not be considered at this time.
The judgment should be reversed and the cause remanded. It is so ordered.
Cox, P.J., and Smith, J., concur.