1-5. The rulings announced in the first five headnotes do not require elaboration.
6. The indictment charged that the bank did “become fraudulently insolvent,” while the defendant was an officer thereof; and a material question was whether the bank was insolvent within the meaning of the Penal Code, § 204, quoted in the fourth headnote. The judge charged: “The stock of a bank issued and paid for is a liability that should be included and taken into account in determining the question of solvency or insolvency.” Error was assigned upon this charge, on the ground that it did not state the law. A similar charge was involved in Spence v. State, 20 Ga. App. 61 (92 S. E. 555). The majority ruled that the assignment of error based on the ground -of the motion for new trial complaining of the charge had been abandoned, and did not rule upon the question. Judge George filed a specially concurring opinion, holding that the assignment of error was not abandoned, and stating reasons why the charge was erroneous. In the course of his opinion it was said: “Does this charge lay down a correct test by which the solvency of a chartered bank is to be determined? Is a hank solvent only when its assets are sufficient to pay not only its creditors, including depositors, but its stockholders as well? If this rigid test is to be applied, every bank, immediately upon its organization, will be found to be insolvent. Furniture and fixtures and general supplies must be purchased by every bank commencing business. A newly organized bank would hardly, in any case, be able to dispose of its furniture and fixtures, to say nothing of its general supplies, at cost. The. officers and directors of a bank usually own a large part of its capital stock. It is stretching the law too far to say that bank officers and directors owning a large percentage of the stock of the bank become criminals the moment its assets fall below its liabilities, including the liability of the bank upon the stock held by such officers and directors. The individual stockholders and the corporation are not one and the same, it is true; but if the officers of a bank who own practically its entire capital stock are able to pay, out of its assets, all creditors of the bank, they o'ught 'neither to be ’presumed nor held guilty of the offense declared in section 204 if the assets of the bank are insufficient to pay the stockholders, including themselves. If, on *761account of the fraudulent acts of the officials, the assets of the bank are insufficient to pay the general creditors of the bank, including the depositors, such officials are criminally liable. If, through the criminal conduct of the officers and directors of the bank, its capital stock is impaired, the stockholder has his recourse against such officials under other sections of our Penal Code. The capital stock, it is true, is both an asset and a liability upon the civil side of the law, but to regard the stock as a liability in determining the solvency of a bank under the Penal Code section referred to is, in the opinion of the writer, untenable. No consideration of public policy requires such a construction of this section of the code. The stockholders in a banking corporation become such for pecuniary gain to themselves. In no other corporation are stockholders, by any section of the code, given the benefit which the charge of the trial court in this case affords the holders and owners of bank stock. Sound public policy will protect the owner of bank stock no further than the owner of any other corporate stock. He must look for his protection to the embezzlement statutes and other statutes enacted for his.benefit, and to the honesty of the officials of his own choosing.' Further, an individual is not considered insolvent so long as he is able to pay his creditors. A corporation should not be considered insolvent so long as the corporation is able to pay out of its assets, including its original capital stock, all of its creditors. The stockholder is in no proper sense a creditor of the bank.” There might be elaboration; but the reasoning there stated sufficiently shows that the liability of a bank to its stockholders on shares of stock fully paid for should not be taken into account as a debt of the bank in ascertaining its insolvency within the meaning of the statute, which is highly penal and is to be strictly construed.
