130 Tenn. 581 | Tenn. | 1914
delivered the opinion of the-Court.
The plaintiff in error was indicted under chapter-44 of the Acts of 1911 of the State of Tennessee, under an indictment which reads as follows:
“State of Tennessee, county of Knox. Criminal court for Knox county, March term, 1913. The grand jurors for the State of Tennessee upon their oath present that heretofore, to wit, on the 13th day of December, 1912, in the State and county aforesaid, W. H. Glass being an officer, to wit, president, of the Knoxville Banking & Trust Company, a corporation, and as-such officer having the control and management of' said Knoxville Banking & Trust Company, did, on the 13th day of December, 1912, feloniously receive, as
He was convicted and subsequently sentenced by the •court, and from the judgment he has appealed to this •court and assigned errors.
Error is assigned on the refusal of the trial court to sustain the demurrer to the indictment on several •grounds stated therein. This question has been fully •considered by the court in ''the case No. 2 of State v. Willis, 170 S. W., 1032, and for reasons contained in that opinion this assignment is overruled.
The third assignment of error is as follows:
“It was error for the court not to hold that the Acts of 1911, chapter 44, was repealed by the Acts of 1913, chapter 20, sections 32 to 34, inclusive, page 214, the repealing act being passed March 20, 1913.”
It is said that the indictment was found March 28, 1913, and the trial began January 7, 1914. It is insisted that the court should have held that the act of 1913 repealed the act of 1911, and amounted to a
The last two cases cited are in accord with the contention. Richardson v. State, however, while • recognizing the doctrine that by the common law the repeal of a statute creating an offense effectually obliterates it from the statute boohs, and that no further proceedings upon it can be had after such repeal, holds that section 49' of the Code of 1858 annuls this common-law principle, and that a conviction may be had upon an indictment or presentment for an act unlawful at the time of the occurrence, although the statute upon which the proceeding is based may have been repealed before the conviction. The principle just stated is fully confirmed by the later cases of Hill v. State, 5 Lea (73 Tenn.), 730; State v. Nashville Bank, 16 Lea (84 Tenn.), 118; Wallace v. Goodlett, 20 Pickle (104 Tenn.), 680, 58 S. W., 343.
In Hill v. State, supra, it is said:
“By the common law, the repeal of a statute creating an offense effectually annulled it just as if it had' never been the law, and no proceedings could be had upon it after the repeal. But the Code (section 49)
The same point is raised in the same way in Wallace v. Goodlett, supra, and it is also held in that case that the provisions of section 49 of the Code apply to statutes passed and repealed since the Code, in the absence of a contrary purpose expressed in the statutes themselves.
The same principles are supported by Shelby County v. Railroad Co., 16 Lea (84 Tenn.), 408, 1 S. W., 32; also Railway & Light Co. v. Norvell, 122 Tenn., 618, 124 S. W., 613. And see, also, Standard Oil Co. v. State, 117 Tenn., 650, 100 S. W., 705, 10 L. R. A. (N. S.), 1015,
This assignment must therefore be overruled.
"With it must likewise go assignment No. 9, which was that it was error in the court to overrule defendant’s-motion during the trial to discharge the defendant. This motion was based on the same ground as assignment No. 3.
For the present we shall pass assignments Nos. 4 and 8.
It is assigned as error that the trial judge admitted testimony of the receiver’s management and of the receipts by him under his receivership, as evidence upon the subject of the insolvency of the bank at the time
An examination of the receiver’s testimony shows that the matter complained of covered only a small part of his evidence. He says in his testimony, in substance, that he was acquainted -with the value of the assets at the time the deposit complained of in the indictment was made, and he undertook to value those assets according to his best judgment. We think.this evidence was competent. Of course, the weight of the evidence would depend very much on his means of knowledge, that is the sufficiency of his acquaintance with the nature of the different kinds of assets and the solvency or insolvency of the people on whom the notes, accounts, etc., rested.
In connection with this assignment should be considered the next, No. 6, which complains that the trial judge permitted evidence of the dealings of the receiver with the Tennessee Medicine Company, the McCormick Furniture Company, the Knoxville Auto & Garage Company, the Beaumont Construction -Company, and the Knoxville Realty Company.
This evidence was brought out by the plaintiff in error himself on cross-examination of the receiver. The substance of it was that, shortly after the bill was filed against the bank to put it in course of liquidation, these various enterprises to which the bank had lent large sums of money all failed, and several, if not all of them, went through bankruptcy, with the result that only a' trifling amount was collected from these
On the general question whether evidence of the value of assets at a subsequent time can be heard in a case of the kind we have before us, we think the proper view is this: The evidence is competent if the period concerning which inquiry is made is sufficiently near to the date of the deposit complained of to make it improbable that any material change in the solvency of the assets had occurred. The greater the interval of time between the two dates the less the value of the evidence becomes, until it may finally become so remote as to be wholly immaterial. This is a matter which must be judged of in each case, and' no rule of a more definite character can be laid down. Certain it is, however, that the testimony would be always com
The thirteenth assignment raises this question: Was it error for the trial judge to permit Mr. H. B. Bran-ner to testify that the Knoxville Banking & Trust Company tried to get the representatives of the other Knoxville banks to furnish it money, and that the reason they did not furnish it was they thought it would require too much money to tide the bank over, and they did not think it good business policy to do so; it appearing that Grass was not present and did not participate in such request.
We think this evidence was incompetent. The question to be determined was whether the bank was insolvent to the knowledge of Mr. Gass when he received the deposit, or whether he had good reason to believe that it was insolvent. The fact that a committee of bankers of the city met at the business place of the Knoxville Banking & Trust Company at the invitation of other officers than Mr. Gass, with a view to considering the matters referred to, and that they
Assignment No. 14 raises the question whether the trial judge was in error in overruling plaintiff in error’s motion to exclude all testimony of the witness H. B. Branner based on hearsay; the witness having testified that all he knew in regard to whether assets of the Knoxville Banking & Trust Company were good or bad was what the committee appointed by the bankers of Knoxville said there in.regard to it, the witness
In this connection we deem it proper to consider what is the true criterion of the insolvency of a bank under the statute on the authority of which the present indictment was found. The language of the statute is:
“Hereafter it shall he a felony for any officer or officers, agent or agents, or other person or persons, having control or management of any hank in this State,, to receive, assent to the reception of, or permit the-reception of, any money, check, draft, note, or hill of exchange on deposit in such hank, when such officer or officers, agent or agents, or other person or persons know, or have good reason to believe, that such bank’ is insolvent.”
The question to be decided in every such inquiry is-whether the officer or agent who received the deposit knew the hank was insolvent, or had good reason to-believe that it was insolvent. If actual insolvency existed and he really knew it, of course that ends the inquiry. So the real question to he determined is what is meant by the expression “or having good reason to-helieve that such bank is insolvent. ’ ’ This necessitates an inquiry into the sources of the prisoner’s knowledge- and of his duty to know. If he is the one described in the act as “having the control or management of any
Premising this much, we shall now inquire when is a bank insolvent within the sense and meaning of the statute in question. There are two theories of the subject. One is that a bank is insolvent when it is unable to pay demands made upon it in the ordinary course of business when such demands fall due, a situation in which bankruptcy proceedings could be immediately instituted against it. The other theory is that the bank is insolvent when its assets are less in value than the amount of its debts, exclusive of capital stock, surplus, and undivided profits, allowing a reasonable time for the conversion of the assets into money. It is no doubt true that, when a bank is unable to pay its debts as they fall due in. the ordinary course of business, it is subject to be proceeded against by a bill in equity for the appointment of a receiver for the administration of its assets. We do not believe, however, that this-state or condition of the. business was such as was contemplated by the statute in question. It cannot be true that a banker is guilty of a crime in receiving a deposit if at the time the assets of the bank fully equal in value the sum of its debts, even though it may require some time to realize on those assets. The gist of the matter is that a deposit is received by a banker knowing or having good reason to believe that the money will be lost to the depositor, by reason of the inability of the bank to return it; but if the assets on
The foregoing views are, in substance, supported' by the cases of Ellis v. State, 138 Wis., 513, 119 N. W., 1110, 20 L. R. A. (N. S.), 444, 131 Am. St. Rep., 1022, and Fleming v. State, 62 Tex. Cr. R., 653, 139 S. W., 598-605.
Assignment No. 7 raises the question whether the-trial judge committed error in refusing to permit plaintiff in error, Grass, to testify that when he first heard that an insolvency bill was to filed against the bank he-not only did not consent to it, but protested against it. The same assignment raises the question whether the trial judge was in error in refusing to permit plaintiff' •in error, Grass, to state in his evidence what arrange
We think this was error. It may be true that Mr. G-ass was guilty notwithstanding he made the protest mentioned, and notwithstanding he had made the financial arrangements referred to, nevertheless it w'as competent to prove both points as circumstances indicating' his belief as to the solvency of the bank; hence his good faith. It is true, of, course, that if, notwithstanding the existence of these facts, the State had proven that the bank was really insolvent in the sense in which we have already explained that matter, the evidence would have done him no good as a defense to the issue; still, .as stated these were circumstances that were relevant to the inquiry, and might properly have influenced the jury in fixing his punishment at a shorter term, finding that he honestly entertained such belief, although that belief was not justified by the facts which he knew .about the assets of the bank, or ought to have known.
Assignments Nos. 10, 11, 12, and 15 are based on the following facts: The deposit was alleged to have been made on the 12th of December, 1912. Under the law as it then stood the crime was punishable by imprisonment at a period to be fixed by the jury at not less than two nor more than six years. By an act subsequently passed (chapter 8 of the Acts of 1913) the indeterminate sentence law was created, under which the jury can respond only to the issue as to the guilt or innocence of the prisoner, the law itself attaching the penalty at the maximum, which may be reduced by good
The case presented was not a proper one for the arrest of judgment. That depends upon some defect in the pleadings which is not cured by verdict.
The last question is whether the trial judge committed error in refusing to grant a change of venue to Anderson county. This point is the subject of assignment No. 1.
In this connection we may state that we have not thought it necessary to follow the assignments in the order in which they appear in the brief of counsel, but in what seems to us the most convenient order.
The affidavit shows that 5,000 or 6,000 depositors of the bank reside in Knoxville and Knox county; that great prejudice exists against Mr. Gass among the depositors and their friends, and these probably comprise a great many more than 5,000 or 6,000 — perhaps 20,000 — people, and that, furthermore, threats have been made against him, and that he has been the subject of bitter comment in the newspapers. It may be that notwithstanding all this he could have a fair trial in Knox county; yet, as it is important that the administration of the law should be free from the influences of partisan bias, we believe the interests of justice would be promoted by a change of the venue as prayed in the petition of the prisoner.
The result is that the judgment and verdict will be set aside, and the cause remanded to the criminal court of Knox county, with directions to transfer the case for trial to the circuit court of Anderson county.