W. J. Wilkin was indicted for violating section 1814 of Kirby’s Digest by knowingly accepting and receiving on deposit .and by permitting and conniving .at the receipt and acceptance on deposit of money in the bank of which he was president when it was insolvent. He was tried before a jury and convicted, his punishment being fixed at three years in the State penitentiary. From the judgment of conviction he has duly prosecuted an appeal to this court.
This is a companion ease to that of Skarda v. State, reported in 118 Ark. 176, 175 S. W. 1190. Joe Skarda was the cashier and W. J. Wilkin was the president of the Bluff City Bank in the town of De Vail’s Bluff, Arkansas. The bank was placed in the hands of a receiver on March 20, 1913.
On February 28, 1913, E. B. Kobinson deposited a check for $600 in the bank. The check was accepted by the cashier and this was the transaction upon which the present prosecution is based.
(1) The first assignment of error which it is in? sisted calls for a reversal of the judgment is that the court erred in not sustaining the demurrer to the indictment. The indictment .charges in the same count that the defendant knowingly received and accepted a check on deposit .and knowingly permitted a check to he received and accepted on deposit when the bank was insolvent.
We do not think the court erred in overruling the demurrer. This is not a case of an indictment charging in the .same count two separate and distinct offenses •for which different punishments are prescribed. The indictment charges the commission of but one offense. The act of knowingly receiving and accepting a deposit and knowingly permitting it to be received and accepted constitutes the same .offense. It is true it may be committed in a different mode but the punishment is the same and the same character of testimony is necessary in each case.
(2) Moreover, we do not think the court erred in not requiring the .State to elect for the reason that no prejudice could have resulted to the defendant in the present case. The record shows that the deposit was received by the cashier while the president was absent in another State. No attempt 'whatever was made by the State to prove that the president himself accepted or received the deposit; on the other hand, .all of the evidence adduced by the State pointed to the fact 'that the cashier received the deposit and that the president at the time was in another State. The State directed its whole efforts to prove that the defendant as president of the bank allowed a deposit to be received knowing the bank to be insolvent.
(3) The next assignment of error is that there was a variance between the indictment and the proof as to the endorsement of the check. The indictment alleged the deposit in the Bluff City Bank of .a check drawn on the People’s Bank by Higgins & Robinson, payable to B. B. Robinson and endorsed by E. B. Robinson. There is no dispute in the proof on this point. Robinson handed the check to Skarda, cashier of the Bluff City Bank, but ■did not endorse it. Skarda, in order to collect the check from the People’s Bank, subsequently endorsed it .and received the money therefor. The jury might legitimately have inf erred from this testimony that Robinson deposited the 'check for the purpose of collecting it and through inadvertence did not endorse it 'and that 'this was understood to be the state of facts by the cashier because he subsequently endorsed the check :and collected it. Thus it will be seen that the whole transaction was treated as if the cashier had received the check as the equivalent of money and we do not 'think there was any variance between the indictment and the proof.
(4) The word “draft” .as used in the act under which the indictment was drawn is .a general term and includes checks. It is manifest that the deposit ‘ of a check falls as clearly within the reason of the statute as deposits of other commercial paper circulating as money. Cunningham v. State, 115 Ark. 392.
(5-6) We shall next consider the effect of the defendant’s absence from the State at the time of the commission of the offense.
It may be well to state at the outset that the evidence on the part of the State tended to .show that the bank was insolvent at the time the deposit in question was received, that there had not been a meeting of the board of directors for many months prior thereto, that the affairs of the bank were in charge of the president 'and the cashier, .and that the president was engaged in the mercantile business, his store being just across the street from the bank and that he was daily consulted about the conduct of the business of the bank.
The defendant left the town of De Vail’s Bluff on the 18th or 19th day of February, 1913, and did not return until the first day of March, 1913. The testimony on the part of the defendant tended to show that his store house was burned on February 23,1913; that he was sick at the time his store was burned and returned home as soon thereafter as he was able to travel; that the cashier had the active control and management of the affairs of the bank; and that the defendant was of the opinion that if his store had not ¡burned down thus entailing upon him a great loss the affairs of the bank could have been so conducted and managed that it would not have become insolvent. His evidence .also tended to ¡show that he did not give the cashier any direction whatever in regard to the deposit in question.
Our Constitution has expressly fixed the boundaries of the State ¡and it is clear that each State is sovereign within its o'wn limits. It is also equally clear that the criminal laws of a State can have no extra-territorial operation. The crime for which the defendant was indicted is a statutory offense and he may be deemed in law guilty under the ¡statute .although ¡at the time the crime was committed he was out of the State. For instance, if the defendant .as president of the bank had known of its insolvent condition .and the cashier and his assistants had not known of its insolvent condition ¡and the president had directed them to ¡continue to receive deposits .and had then gone beyond the limits of the State, he would have been guilty, under the statute, ¡although not personally within the State when the offense was actually committed. In such ease his agent acting under his .authority and guidance would be guiltless because he would not have received the deposit knowing the bank to be insolvent; and the president alone would be the guilty party although at the time of the perpetration of the offense he was out of the State ¡and within the limits of the State of Georgia. This is so because the defendant would have put into operation in this State the acts which constitute the essential elements of the crime.
It will be remembered that the gist ¡of the offense is receiving .and accepting or permitting to ¡be received and accepted deposits knowing the bank to be insolvent. In the instance last cited the president, knowing the bank to be insolvent, directed the ¡cashier ¡and his assistants to continue receiving deposits and then himself went beyond the boundaries ¡of the State ¡and although the deposit may have been received after he placed himself within the boundaries of ¡another State, yet he would be deemed guilty because be directed the deposits to be received while yet in the State of Arkansas.
As bearing on the question see Commonwealth v. White, 123 Mass. 430, 25 Am. Rep. 116; People v. Adams. 3 Denio (N. Y.) 190, 45 Amer. Dec. 468; Johns v. State, 19 Ind. 421; Wharton’s Criminal Law (11 ed.), Vol. 1, Sec. 324 and 333.
Again, if the president and cashier, both knowing the ■bank to be insolvent, should agree that the president should leave the State and that the cashier should continue to receive deposits while he was gone, and deposits should be received after the president had gone out of the State, the president would be guilty because the offense stated would amount to a conspiracy and it is well settled that each conspirator is responsible in any place where any overt act by any of his co-conspirators is done. In such case the crime having been concocted and started while the president was in 'the State of Arkansas, the immediate act of the cashier in receiving the deposit after the president left the 'State would be deemed in law the act of the president ¡also. See Wharton’s Criminal Law (11 ed.), Vol. 1, § 333.
Counsel for 'the State have cited the case of State of Mississippi v. Edmund Mitchell, 51 So. 4, 26 L. R. A. (N. S.) 1072, .and other cases of like character as holding to the contrary ,and as being authority that the defendant is guilty under the facts of the present case. We do not think the cases cited are susceptible of the interpretation placed upon them by counsel for the State. In the case just referred to the defendant was within the State of Mississippi at the time of the offense was committed. Therefore the question of 'his being within the limits of another State when the offense was committed did not arise and was not decided by the court. It will be observed that .in that case the defendant was within the jurisdiction of the courts of the State of Mississippi when the crime was committed and the question up. .for determination in this ease did not arise and was not determined. Moreover, in that case the bank was a partnership and the person receiving the deposit acted as agent for his principal, the principal knowing at the time that the bank was insolvent.
Wedo not deem it necessary to set out the instructions given by the court on the point we have just discussed. It is sufficient to say that the instructions entirely ignored the theory of the defendant to the effect that he did not conspire with the cashier to receive the deposit while he was within the State of Georgia. According to the testimony of the defendant Ms trip to the State of Georgia had no connection whatever with the affairs of the bank and he did not in any manner participate in the transaction for wMch he was indicted. That is to ®ay, according to the evidence adduced in his behalf the defendant did not in any manner participate in the transaction for which he was indicted. As .already indicated, the accused’® personal presence in the State is not always necessary to make ¡him guilty under the statute, but the court should have submitted to' the jury the question of his guilt or innocence under the principles of law above announced, and not having done so the judgment must be reversed.
(7) It is also 'insisted by counsel for the defendant that the court erred in admitting testimony as to certain acts and declarations of the cashier of the bank .and of other persons connected 'with the hank of which the defendant had no knowledge. The record shows that the court expressly told the jury that these acts .and declarations were admitted solely upon the question ,as to whether the bank was insolvent. A bank is insolvent in contemplation of the statute* under consideration when its assets and property are of such character and value that 'it is unable to meet its demands in the usual and ordinary course of business. It is not essential that the bank shall have on hand sufficient cash to pay all of its depositors or any considerable number of them on the same day, or, in case of a run on the bank or some extraordinary demand. It is only necessary for it to have on hand cash or available assets sufficient to meet the demands that are usually made on it from day to day in the ordinary course of business. The .amount owing by the bank to its stockholders as such, or its capital ¡stock should not be considered as .a debt against the bank in determining its solvency. Skarda v. State, supra.
(8) The insolvency of a bank may be proved by circumstantial evidence .as well .as direct evidence but must be proved by competent evidence; and hearsay evidence would be no more admissible to prove that fact than it wonld be in any other case.
It is also insisted by counsel for the defendant that the evidence is not sufficient to warrant the verdict; that is to ¡say, they claim that the State has failed to prove that the bank was insolvent or that the 'defendant knew it to he so. In view of another trial we think it best not to ¡state in detail the testimony on this point. A great mass of figures 'and other testimony was introduced and to attempt to set it out in detail would only lead to confusion when it is considered that -additional testimony may be received on a retrial oif the case. We deem it proper to say, however, that ;a careful consideration of the whole record leads us to believe that there was testimonyof a substantial ¡character which, if believed by the jury, would warrant it in finding the defendant guilty.
For the errors indicated, the judgment must be reversed .and the canse remanded for a new trial.
Kirby’s Digest, § 1814.