8 Ga. App. 129 | Ga. Ct. App. | 1910
Lead Opinion
It will be necessary to extend this opinion to an unusual length, in order to cover the ease as presented in this court. The record contains about 400 pages of typewritten matter. Nevertheless, we will attempt to deal with the case as briefly as is possible with due regard to the number of points presented and their importance. The indictment (omitting the formal parts) charges: “ On the thirty-first day of December in the year nineteen hundred and six, in the county aforesaid, -[the defendant] did then and there unlawfully, being president of the Exchange Bank of Macon and a director of said bank and a member of the board of directors thereof, said bank being a banking corporation existing under and by virtue of the laws of the State of Georgia and having its principal office and place of business located in the city of Macon in said county, declare, in connection and conjunction with the board of directors of said Exchange Bank of Macon and a majority of said board of directors, a dividend of three per centum upon the capital stock of said Exchange Bank of Macon, and did then and there, in pursuance of said declaration of said dividend of three per centum as aforesaid, pay over said dividend to the stockholders of said Exchange Bank of Macon, said payment of said dividend as aforesaid being then and there made from the capital stock of said Exchange Bank of Macon and from other
To this indictment the defendant filed a demurrer, presenting in substance the following grounds: that the indictment fails to allege that the Exchange Bank of Macon was a bank of issue; that it does -not allege the names of the jicrsons with whom this defendant acted in connection or conjunction, or show that they were unknown to the grand jurors, the offense being one which under the public law of this State could not be committed by one person alone, and therefore being a joint offense; that the indictment fails to allege any offense under the laws of this State. While the demurrer contains other grounds, the above statement practically covers them all.
The defendant filed also a plea in abatement. The first ground sets up that nine of the grand jurors impaneled at the term of the court at which the presentment was returned were not legally qualified to act as grand jurors in the investigation of the case, because they were drawn by Judge W. H. Felton (judge of the superior court of the county in which the prosecution was pending), together with Robert A. Nisbet, clerk of said court, and George W. Robertson, the sheriff; and these persons were disqualified to act in the drawing of the grand jurors .by reason of their being depositors in the Exchange Bank, and for other disqualifying causes. The second ground of the plea in abatement sets up that the precept containing the names of the grand jurors objected to was turned over by Judge Felton to Mr. Nisbet, the clerk, and that the latter was disqualified to handle the precept. The third ground sets up that Mr. Robertson, the sheriff, was disqualified to serve the grand jurors. The fourth ground sets up that Judge Felton was disqualified in causing these jurors to be. impaneled to act as grand jurors. This ground also contains a subdivision setting up that ten other persons were held to be qualified jurors by Judge Felton, but we are unable to ascertain exactly what is meant by this
While the special presentment denominated the crime as “a felony,” the jury recommended that the defendant be punished as for a misdemeanor, and the judge approved the recommendation and imposed sentence accordingly. After the conviction, the defendant filed a motion for new trial and a motion in arrest of judgment. The grounds of the motion for new trial will not be stated here, but the facts upon which they depend will be discussed in the course of the opinion. The motion in arrest of judgment was based upon substantially the same grounds as those set out in the demurrer and upon the further ground that the law upon which the special presentment was returned had been repealed and was not existing at the time of the alleged offense.
The proof is overwhelming that at the time the dividend in question was declared, the Exchange Bank was hopelessly insolvent and had been so for some time. It is likewise very clear 'from the testimony, and practically undisputed, that this bank had'been carrying upon its books, as live assets, stocks, notes, and accounts which for a long period of time had been so utterly and hopelessly insolvent as to render them absolutely worthless. These items amounted to at least $240,000. They were sufficient, if they had boon charged off, to have consumed not only the undivided profits,
The code sections in question do not contain any express provision relieving a president or director from criminal liability ■where he declares a dividend in good faith, believing that the bank has earned it, yet it seems to be the correct view that such an exception does exist by implication; but if it exists, there must run with it the corollary that before the offending official can claim the benefit of any such exception, it should appear that he has not acted recklessly — that he has not wilfully or in gross negligence shut his eyes to the situation.
The president of a bank is,, of course, charged by law with knowdedge of what is contained upon its books, and with a knowledge of the condition of its financial affairs, but in a criminal trial of the character now before us, this is only a prima facie inference, and we can readily see that in a bank of the size of the Exchange Bank of Macon, the president would have to rely for his information, more or less, upon the bookkeeping of his subordinates and upon reports made to him by them. And if he acted in good faith upon such, reports and was really deceived as. to the condition of affairs, and if, thus honestly but ignorantly acting upon the belief that the bank had really earned a dividend, he joined -in declaring it, it would be hard, indeed, if not contrary to law, to hold him criminally responsible for doing what any other reasonably prudent man would have done under the circumstances. But under the facts of the present case, it is hardly conceivable that the defendant, who, even according to his own statement on the trial, practically controlled the bank, so far as its general management was concerned, who had spent a long number of years in its service
It is fair to the defendant to state (especially in the light of what we have felt it our duty to say above) that his personal interest in the matter of declaring dividends was somewhat small, for he owned no very great amount of the bank’s stock; the dividends for.tlie most part went to others. We think it is plain that lie committed the crime charged against him in an effort to conceal the bank’s embarrassments for the purpose of tiding over them, and to shield the directors, stockholders, depositors, and the public from the losses which usually follow when the credit of a big banking institution becomes impaired or questioned in the public mind. For it is a critical thing for a bank’s credit to become questioned or for knowledge of its embarrassments to become public — such things are so easily exaggerated in the public mind. The point is that it is wholly unnecessary to impute to the defendant corrupt or malign motives, in order to say that the record before us shows plainly and practically unequivocally that he violated the law in regard to the dividend in question. His bare statement to the eon
We have said this much as a basis for the proposition that it would take some error of more than minor importance to justify a reversal of the case. The fact of the long and useful life of the defendant, and of the exceeding high character which the proof on both sides of the case shows that he bore, has caused us to hesitate to make the statement which we have just made as to the evidence; for no court should forget that high character and good name are entitled to some consideration, when facts are being placed upon perpetual record; but after all, it is perhaps fairer to him and to the public that the full facts should be known 'and understood, and that we should plainly state that what he has been convicted for is, that instead of charging off from the bank’s assets notoriously bad debts and applying whatever profits there were to restoring the bank’s capital, he retained these insolvent items as live assets, and from this basis declared a dividend, when the dividend should not have been declared, though not he, but others, received the chief benefit from his violation of that strict law which governs, and should govern, the officers of banks.
In the second ground of the motion complaint is made that the court refused to put a juror named Cane on the court as trior, on
We will later in the opinion touch upon the point that these witnesses in some cases were allowed to testify that these notes were classed 'as worthless or insolvent, though the witness himself had no personal knowledge or information as to their value or solvency.
Judgment affirmed.
Rehearing
ON PETITION FOR REHEARING.
The rehearing is denied. However, counsel insist that the judge, in sentencing the prisoner, treated the case as a felony involving moral turpitude. . We are not sure as to what view the judge held as to this. If the offense is a felony, it does not involve moral turpitude. It is purely statutory. Under the national banking act, for instance, the things charged against the defendant would not constitute any crime at all. There is so much doubt as to whether the acts charged constitute a felony, also whether a misdemeanor convict (not( a female) can be sentenced to the State farm, that we have decided to grant the request of counsel that we give direction that the trial judge may, in his discretion, resentence the defendant at or before the time he makes the judgment of this