46 Neb. 715 | Neb. | 1896
In the district court of Sherman county Albert T. Nichols was convicted of the crime of receiving a deposit in a bank of which he was cashier, the bank then and there being to his knowledge insolvent, and sentenced to a term in
*718 “July 13, 1895, 8 o’clock A. M.
“Argument to jury about to be commenced by County Attorney J. W. Long for the prosecution. Defendant here asks leave to withdraw his rest and to put on the witness stand O. S. McCurrie, by whom he can show that on the 16th day of February, 1895, the account of Henry Miller, the prosecuting witness herein, in the People’s State Bank of Litchfield, Nebraska, was overdrawn $15.30, and that no deposit was made by him on the 17th; and that the first deposit made or money brought in to the bank by him after the 16th was the $11 charged in the information in this case; and at the time it was brought in, the said Henry Miller was overdrawn in his account with said bank in the sum of $15.30.”
“The counsel for the state object, as immaterial, irrelevant, incompetent, and too late at this time.”
“The court: The request is denied for the reason that the fact sought to be shown is immaterial, irrelevant, incompetent, and not because it is too late. Defendant excepts.”
The evidence shows that Miller was a customer of the bank, and this being so, the relation which the law presumes existed between them was that of debtor and creditor. (Marine Bank v. Fulton Bank, 2 Wall. [U. S.], 252; Thompson v. Biggs, 5 Wall. [U. S.], 663; Bank of the Republic v. Millard, 10 Wall. [U. S.], 152.) The evidence tends to show that the deposit made by Miller on the 18th was a general one. Whether the deposit was a general or special one was of course a question of fact to be determined from the intention of the parties, but a deposit is presumed to be a general one in the absence of evidence to the contrary. (Brahm v. Adkins, 77 Ill., 263; In re Franklin Bank, 1 Paige Ch. [N. Y.], 249; 1 Morse, Banks & Banking, sec. 186.) Since the relation existing between Miller and the bank was that of debtor and creditor, and since the offer was to show that Miller was overdrawn at
Reversed and remanded.