State v. Myers

54 Kan. 206

• Court: Supreme Court of Kansas
• Decided: July 15, 1894
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

2. Cases, followed.

1. Appeal — recjuagef trial A preliminary question is presented. Upon the part of the state, an objection is urged against the consideration by this court of the errors assigned, upon the ground that the bill of exceptions is not properly authenticated, and is also incomplete and imperfect on its face. The ■record was filed in this court on August 4,1894. The certificate and authentication to the bill of exceptions signed by the trial judge states that the bill of exceptions is “in two volumes, numbered one and two.” The certificate of the district clerk, attached at the end of volume two of the record, states “ that the within and foregoing is a full, true, correct and complete copy of the original bill of exceptions in the case of The State of Kansas v. C. W. Myers, as appears of record and now on file in my office, and that said bill of exceptions contains full, true and correct copies of all the orders, pleadings, process and proceedings in said cause, as the same appears respectively on file in my office.” This certificate is sufficient, within the authority of Lauer v. Livings, 24 Kas. 275. In the absence any Pro°f that the two volumes should not be considered together, as certified to by the trial judge, we may regard the record presented as contained in the two volumes filed and as sufficiently authenticated. The challenge of the record will be overruled.

3. examination-be revoked, The trial court committed no error in overruling the plea in abatement. One of the purposes of a preliminary examination is to give the defendant a reasonable notice of the nature and character of the offense charged- against him, and “The state should in all cases give the defendant such notice by a proffered preliminary examination, unless he waives the same or is a fugitive from justice.” (Crina. Code, §69.) The defendant was not a fugitive from justice, but he waived the proffered preliminary examination. The complaint and warrant upon which it was issued stated in general language the offense alleged. We think that “The defendant should take notice from the evidence introduced by the state on the preliminary examination, as well as from the papers in the case, of the nature and character of the offense charged against him. ” As the defendant explressly waived the preliminary examination, he cannot now be heard to say by a plea in abatement that he should be discharged because he had no preliminary examination prior to the filing of the information against him. (Crim. Code, §69; The State v. Smith, 13 Kas. 296; The State v. Bailey, 32 id. 83.)

There was no error on the part of the trial court in refusing to compel the state to elect upon which one of the counts it would proceed to trial. The election in such cases as this rests in the sound judicial discretion of the trial court. (The State v. Hodges, 45 Kas. 389; The State v. Zimmerman, 47 id. 242.)

4. MnkVacoeptinformation! It is insisted “that the information does not show the defendant took the deposit with the intent of defrauding, and that it does not show that anybody has been defrauded, or has suffered a loss.” This was a prosecution under § 16, chapter 43, Laws of 1891, and not under § 79a of the crimes act, Gen. Stat. of 1889. (Laws of 1879, ch. 48, §1.) Under the latter statute, no prosecution could be maintained unless “loss occur by reason of such deposit.” Section 16, chapter 43, Laws of 1891, omits this provision. There-f°re> the exceptions taken to the information are not tenable. Upon the trial, Breidenthal, the bank commissioner, was asked: “State in what condition you found the bank, and what you did in connection with that, as to the condition of the assets and liabilities, and the entire condition of the bank at that time.” The witness answered as follows: “That's a little difficult for me to answer without going over the whole thing.” Then the following question was asked: “I will try to make that question broad enough so you can answer it. Everything you did, and every person you have examined; any witness you examined by which you based your conclusions of the condition of the bank; everything you did — I want that question to cover everything you did before you took possession of the bank.” This witness was permitted to state “that he found the bank affairs generally and particularly in very bad condition, and that an item of $3,000, according to the statement of the cashier, was absolutely worthless.” This evidence was objected to by the defendant, and a motion was made to strike it out. This was overruled, and exceptions taken. Other similar evidence was received, against the exceptions of the defendant.

5. prosecution — " alMe-eSCl. It was competent upon the part of the state to show that’ the bank commissioner took possession of the bank, together with its assets, and the date thereof, but his evidence should have been limited to facts within his own knowledge, not what he was informed by others, unless the defendant was present at the time of the conversations. The reports of the bank to the commissioner of its condition, made under the direction of the defendant or with his knowledge, were competent for the consideration of the jury. If Breidenthal, or other witnesses competent so to do, had inspected the books, accounts and papers of the bank, while they could not give evidence of their particular contents, they might have been allowed to speak of the general balances of the bank with parties dealing with the bank, without producing the books, accounts and papers before the jury, if it were impossible or impracticable so to do. (1 Greenl. Ev., § 93.) “ When books and documents introduced in evidence at the trial are multifarious and voluminous, and of such a character as to render it difficult for the jury to comprehend material facts, without schedules containing abstracts thereof, it is within the discretion of the presiding judge to admit such schedules, verified by the testimony of the person by whom they were prepared, allowing the adverse party an opportunity to examine them before the case is submitted to the jury.” (B. & W. Rld. Corp. v. Dana, 1 Gray, 83, 104.) But the opinion of a witness whether the bank was insolvent at the time of the deposit alleged in the information ought not to have been received. (Brundred v. Machine Co., 4 N. J. Eq. 295.) Facts, and not opinions, are listened to by judicial tribunals. The jury are called upon to form their conclusions upon the issues involved from the facts before them, and not upon the opinions which may be entertained upon the subject of controversy, save in exceptional cases.

Upon the trial, the defendant asked the court to instruct the jury as follows:

“13. The law of this state does not require a bank to retain on hand all of the money of its depositors.

6. ofwMtode “14. Insolvency is that state of a bank which from any cause it is unable to pay its debts in the ordinary or usual course of business. It is not expected to be able at once to pay every debt it owes, but it must be able to pay or to provide for its debts as they fall due in the usual course of business.

“15. ‘Insolvency,’ in the ordinary acceptation of the term, when applied to a bank,'means inability to meet liabilities in the usual course of business.”

The court refused to give these, but instructed the jury as follows:

“A bank, like an individual, is insolvent when it is unable to pay its debts. ‘Insolvency’ means a present general inability to answer in the course of business its liabilities existing and capable of being enforced. A bank is insolvent when it is unable to meet its liabilities as they become due in the ordinary course of business. It does not necessarily follow that a bank is solvent when its assets are equal to or in excess of its liabilities. But in order to be solvent its resources must be equal in value to its liabilities, and be of such a character as to be available at the command of the bank, to be used in paying its liabilities past due, whenever the same may be demanded in the ordinary course of business. And all debts owing by the bank to any and all persons whomsoever, including its capital stock, surplus fund and unpaid salaries of its officers are its liabilities, while all debts owing to the bank, together with all other property owned by it, constitute its assets or resources.”

The instructions requested ought to have been given, and the giving of the instructions referred to rendered this error more serious. It appears from the facts disclosed upon the trial that C. W. Myers was. the. vice president and general manager of the Bank of Greensburg, and that on the 23d day of November, 1893, W. L. Henderson presented to M. A. Nelson, the cashier of the bank, a check drawn by a commission firm in the city of Wichita upon the Sedgwick County Bank, of Wichita, Kas., payable to the order of W. L. Henderson, which check was indorsed by Henderson, and at his request the amount of the same, viz., $388, was placed to the credit of J. D. Mitchell. The defendant was in Kingman, distant about 100 miles from Greensburg, on the day when this check was presented and received. The amount of the check was entered to the credit of J. D. Mitchell. Afterward, on the 22d day of December, 1893, J. W. Breidenthal, the bank commissioner for the state, closed the bank and took possession of its books, papers, moneys, and assets, and afterward, about the 15th day of February, 1894, T. C. Eberle was appointed by the judge of the district court of Kiowa county as receiver of the bank, and at or about that time took possession of the books and assets of the same and ever since has continued to be the receiver. At the time the bank was closed by the commissioner, it had no paper that had gone to protest, and had not refused the payment of any checks or drafts drawn upon it. There was also $14,506.03 of cash in the bank at that time. The defendant claimed that the liabilities of the bank, not including the capital stock and undivided profits, were $73,089.12, and that the assets of the bank were $103,518.20. On the part of the state it was claimed that the value of the assets was $53,898.60 only, and that the actual liabilities, including capital stock, were over $100,000. Whether the Bank of Greensburg was insolvent or not when the deposit for J. D. Mitchell was received, on the 23d of November, 1893, was an important fact to be decided by the jury, and the evidence was conflicting.

7. Bank — capital piusk¿nasur“ In a criminal prosecution under § 16, chapter 43, Laws of 1889, against an officer of a. bank for knowingly receiving deposits when his bank is insolvent, the capital stock and surplus fund cannot be considered as liabilities or debts in determining the insolvency; otherwise, the greater the capital of the bank and the larger its surplus fund, the more insolvent it will be. The contrary is the actual „ . , , „ t , *act- -*-ae capital and surplus ot a bank are its resources which may be used to pay its depositors and other creditors, when there have been losses by loans or otherwise. If a bank, by using its capital or surplus, or both, can pay promptly its deposits and other debts, as they become*due in the ordinary course of business, it is not insolvent. Upon the books and in the official statements of a bank, capital stock and the surplus fund are denominated as liabilities, but they are resources of the bank with which to transact its business. The more capital a bank has, the better able it is to meet its deposits and other debts. The more surplus on hand, the greater its ability to pay promptly its deposits and other debts. If a bank is able to pay promptly every depositor and every other creditor in the ordinary course of business, the bank, under § 16 of said chapter 43, is solvent, whether there is any surplus or capital to be distributed afterward to stockholders or not. Section 16 was adopted by the legislature for the protection of the depositors, not for the benefit of the officers or stockholders of the bank. It is insisted that this case ought not to be reversed because the defendant did not except to the instructions given, but the defendant made sufficient exceptions to the refusal of the court to give the instructions prayed for, and this refusal, being error, was aggravated by the instructions given.

As another trial will be necessary, it is proper that we should call attention to the following instruction which was given, although apparently not excepted to:

“A person who holds an office of director and vice president of a bank is conclusively presumed to know the general condition and management of his bank, and to know everything of importance that occurs therein, either at the time it occurs, or soon thereafter.”

8. not presumed In a criminal case, like this, such an instruction is erroneous. The jury may take into consideration the position of an officer of a bank and his control of its affairs in determining whether he knew its condition as to solvency or insolvency, but it is erroneous to charge in a criminal case that a person who holds the office of director and vice president of a bank is conclusively presumed to know everything that occurs in the bank. In Savings Bank v. Wulfekuhler, 19 Kas. 60, the rule of the liability of a director and vice president of a bank was stated as the court instructed the jury; but that was a civil action, and this court ruled that, although the director knew nothing of the condition or management of the bank, yet as a matter of law he could not, as against the interests of the bank, its stockholders, or creditors, plead ignorance, and thereby profit by his own negligence — this upon the theory that an officer of a bank cannot relieve himself from civil liability by his failure to perform his official duty; but the law is not so harsh as to punish a party criminally for the want of ordinary diligence in the discharge of his duty. ■ If an officer, director, cashier or manager of a bank knowingly permits a clerk or other employé of the bank to violate the provisions of §16 of said chapter 43 by receiving deposits, such officer, director, cashier or manager is guilty, within the terms of the statute, but he is not guilty if he acts ignorantly and innocently.

The other errors alleged, including the impaneling of the jury, need not be commented upon, because the prior decisions of the court are sufficiently decisive of the matters discussed.

The judgment of the district court will be reversed, and the cause remanded.

All the Justices concurring.