289 P. 483 | Kan. | 1930
Lead Opinion
The opinion of the court was delivered by
J. G. Miller has appealed from a judgment of conviction on an information in which he was charged, in twenty-five counts, with violations of the banking law. The first twenty-four counts of the information charged that the appellant (and ’another), being director and president "of the Midwest State Bank of Fort Scott, on a date named, “did then and-there willfully, unlawfully, feloniously and knowingly permit and connive at the receiving and accepting on deposit in said bank” of a specified deposit; and that the bank was then insolvent, which insolvency was known'to defendant. The first nine counts in the information charged the deposits with having been made on February 23, 1927. Counts 10 to 15, both inclusive, charged the dates of the- deposits as February 21, 1927, and counts 16 to 24, both inclusive, charged the deposits as having been made on various dates from December 21, 1926, to February 19, 1927. The twenty-fifth count charged the making of certain false entries in the books of the bank and a false report to the bank commissioner.
The Midwest State Bank of Fort Scott was organized about 1919, and continued to do a banking business until February 24, 1927, when it was closed by order of its board of directors, taken charge of by the bank commissioner, and a receiver, later appointed, wound up its affairs. Most of the stock of the bank was owned by J. G. Miller and his relatives. Some of the stock was owned by J. W. Montee and some other active officers of the bank. J. G. Miller lived at Mulberry, where he was interested in the Miners State Bank of that place. He was also interested in five or six other banks located in various towns in that part of the state, also in several business corporations and in the operation of farm and
Appellant first complains that the court refused to grant a change of venue. We have carefully examined the record on this point, considered all counsel have said relating to it, and are unable to find error in the ruling. It is not necessary to set out in detail the showing made. Since the change made in our statute following the ruling of this court in Smith v. State, 1 Kan. 365, it has been uniformly held that whether venue should be changed because of local prejudice is a question which rests largely in the discretion of the trial court; that the court tries this question on 'the evidence' presented to it, and that its judgment thereon, if sustained by competent evidence and is not so erroneous that it .could be said to be an abuse of the court’s discretion, will not be disturbed in this court. (State v. Horne, 9 Kan. 119; State v. Bohan, 15 Kan. 407; State v. Rhea, 25 Kan. 576; State v. Furbeck, 29 Kan. 532; State v. Knadler, 40 Kan. 359, 19 Pac. 923; State v. Daugherty, 63 Kan. 473, 65 Pac. 695; State v. Parmenter, 70 Kan. 513, 79 Pac. 123; State v. Bassnett, 80 Kan. 392, 102 Pac. 461; State v. Tawney, 83 Kan. 603, 112 Pac. 161; State v. Mullins, 95 Kan. 280, 288, 147 Pac. 828; State v. Kagi, 105 Kan. 536, 185 Pac. 62; State v. Brown, 114 Kan. 452, 219 Pac. 279; State v. Waldron, 118 Kan. 641, 236 Pac. 855; State v. Welch, 121 Kan. 369, 372, 247 Pac. 1053; State v. Robinson, 125 Kan. 365, 366, 263 Pac. 1081; State v. Harris, 126 Kan. 710, 271 Pac. 316.) While it is true that the record in this case presents some features which differ from those presented in any of the cases cited, yet, applying the principles determined in those cases to the record before us, it must be held that there was no error in the ruling. In this case defendant was not arrested until more than a year after the bank had failed, and we note that there was no particular difficulty in getting a jury in this case. The jury was selected in less than a day, and there is no complaint even now that any juror was permitted to serve whose examination disclosed any feeling or prejudice against the defendant.
Taking up now the first twenty-four counts of the information. (The twenty-fifth count, being a charge of a different nature, will be treated separately later.) The state showed the deposits by the persons, in the amounts and on the dates as charged, and no complaint is made about that. It is not contended that defendant personally received any of the deposits or was present at the bank when they were received, or that he had actual knowledge of the receipt of the respective deposits at the time they were received. Any questions which might arise relating to those matters are not in the case. The questions argued are: (1) whether the bank was insolvent on the dates of the deposits; and (2) if so, did the defendant know that fact; and (3) if the bank was insolvent and defendant knew it, did he permit and connive at the reception of such deposits.
Most of this loss in the value of bank assets was in the notes held by the bank. The fundamental fault of the officials of the bank which resulted in its failure appears to have been in their failure, in many instances, to get adequate security for money loaned. As early as January, 1926, the bank was having financial difficulties. Its directors furnished the bank commissioner a certificate, under oath, that they had examined all of the bills receivable of the face value of $208,029.36, and declared that, to the best of their knowledge and belief, all of them were worth face value, except as listed in schedules. Those listed in schedule A as worthless aggregated a little more than $15,000; schedule B, of questionable value, aggregating $10,000; and schedule C, slow paper, which it was believed would eventually be paid in full, aggregating $37,700. The examination of the bank at that time disclosed a deficit of about $750 in the earnings of the bank, and also disclosed excess loans, most of which were to the officers of the bank. As a result of this examination the bank commissioner made a number of requirements, among others to “collect an assessment sufficient to take care of present losses in your bank, which, in the examiner’s opinion, should not be less than 100 per cent.” The bank was criticized for being “entirely too lax in taking security,” and was admonished to secure the paper better in the future; also that the bank was overloaned and that the officers of the bank should reduce their indebtedness. Criticisms made by the bank commissioner were in part complied with by the bank officials. An assessment of forty per cent on the bank stock was made, and the defendant J. G. Miller and other members of his family who were stockholders paid that assessment, aggregating $8,000, into the bank. J. W. Montee sold ten shares of his stock to A. C. Bean, taking his note therefor for $1,500, and five shares of his stock to R. E. Mitchell, taking his note for $750. These
With respect to the “Montee notes” and the “Miller notes,” appellant complains that the court unduly restricted evidence as to their value: The only evidence permitted by the court was the
“The normal way to prove the actual cash market value of the assets of the bank was to take seriatim, the classes of its resources which appear in condensed bank statements, loans and discounts, overdrafts, real estate, furniture and fixtures, other real estate, bonds with the state treasurer, bonds and warrants, cash and sight exchange, and other resources, and prove the value of all except those classes whose value is established prima jade by description.” (p. 787.)
In that case the bank had been rendered insolvent because of two things — a shortage of nearly half a million dollars in its statement of amounts due from other banks and a shortage of more than a million and a half dollars in bonds which it should have had in its vault. The prosecution in that case might have conceded that all of the other assets of the bank were worth the sum shown by its books, for this loss of more than two million dollars wrecked the bank. There is nothing in the opinion in that case in variance with the rule here stated, namely, that in proving the value of assets any competent evidence pertaining thereto should be received. As bearing on this question see Exley v. Harris, 126 Kan. 302, 267 Pac.
As to the solvency of the bank the court instructed the jury (after quoting R. S. 9-133) as follows:
“One of the conditions laid down in the foregoing statute which renders a bank insolvent is, ‘When the actual cash market value of its assets is insufficient to pay its liabilities.’ In this connection you are instructed that the term ‘actual cash market value’ has reference to a market value that is real and existing, as opposed to nominal, pretended or speculative value, and means that price for which the assets in question can be sold for cash by one who wants to sell such assets to one who wants to buy such assets for cash, at the time and place and under the conditions and circumstances then and there existing. And you are further instructed that in applying this test to the Midwest State Bank and determining whether said bank was solvent or insolvent at the time the deposits in question are alleged in the information to have been received, the capital, surplus and undivided profits of said bank, if any, are not to be included and counted as liabilities of the bank in balancing its assets against its liabilities; . . .”
Appellant complains of this instruction and argues that it makes too strict a rule as to the solvency of banks and says that in time of financial depression no bank, or at best but few banks, could find a cash market for its assets at a value sufficient to pay its liabilities. The instruction is no more strict in this regard than is the statute. The real question, therefore, is, Does the statute place on the banks a test of solvency which is too strict? This is a question which should be addressed to the legislature instead of to the courts, for it is uniformly held that the legislature has authority to lay down rules for determining the solvency of banks which may be organized
“All of the authorities agree that, in statutes of this sort, the legislature might have the power to define what would constitute insolvency under the banking law. The business of a banker is affected by a public interest and therefore subject to public regulation. As a part of the regulatory act the legislature would have the undoubted power to define what would constitute insolvency within the meaning of the act. The definition by' statute would inure not only to the benefit of the general public doing business with banks, but also to the banks themselves.” (p. 502.)
In a case such as this we are not dealing with insolvency in its popular sense, but in its legal sense as defined by statute. (Com., ex rel., v. Tradesmen’s Tr. Co., 237 Pa. St. 316.)
In State v. First State Bank, 52 N. D. 231, it was said:
“It is well settled that the legislature is vested with constitutional authority to regulate the business of banking; and may even prohibit the business from being carried on at all, except under such conditions as it may prescribe. . . . And the legislature has power, by general law, to alter or even withdraw franchises granted to banldng corporations. . . . Hence the legislature clearly had power to say when and under what conditions banking corporations should be deemed insolvent and subject to liquidation; and also had power to prescribe any mode or manner for the liquidation of such insolvent banking corporations, not expressly forbidden by the constitution.” (pp. 245, 246.)
The insolvency of a bank while a going concern is a question of fact (Andrew v. Citizens’ St. Bk. of Goldfield, 207 Ia. 386), and must therefore be determined by the evidence produced at the trial when measured by the statute defining insolvency.
Passing now to defendant’s knowledge of the insolvency of the bank. He was president of the bank from its organization and was required by statute (R. S. 9-109), in so far as the duty devolved upon him, diligently and honestly to administer the affairs of the bank. He and his near relatives owned eighty per cent of the stock of the bank. While he had large and varied financial interests elsewhere, the evidence tends to show that he was in fact the supervising and dominating head of the bank. He visited the bank about once a week, examined the daily statement, talked with the officers there about the various questions which arose respecting its business, and frequently examined the note case, discussing the various notes and their makers and giving directions with respect to them. When not at the bank he was in touch with it almost daily by telephone. Before officers at the bank made loans of consequence he was
Passing now to the question of whether the evidence disclosed that appellant permitted and connived at the receiving of deposits, there is no trouble about the proof of that as to all deposits charged to have been made prior to February 23, 1927, for defendant knew that the bank was open for business on those dates, receiving and accepting deposits, and by so doing was inviting deposits to be made. (Raynor v. Scandinavian-Am. Bank, 122 Wash. 150; Steele v. Commissioner of Banks, 240 Mass. 394; and Dover v. State, supra.) As to the deposits charged to have been made on February 23, 1927
The twenty-fifth count charged that on or about December 27, 1926, the defendant, being the president and a director of the Midwest State Bank, willfully subscribed to and made a certain false report, statement and entries in writing in the books of the bank, and a false report to the bank commissioner, and caused the same to be published, with the intention to deceive the bank commissioner and the public, in that at the close of business on that day the resources of the bank were $262,854.44, whereas the resources were much less than that amount: that the loans and discounts were $162,-473.36, whqreajs they were much less than that amount; that the furniture and fixtures were valued at $12,020.94, whereas their value was a great deal less; that the cash items were $489.40, whereas they were a great deal more, or should have been if properly entered; that the clearing-house items were $8,331.86, whereas they were much less; that the liabilities of the bank were $262,854.44, whereas the liabilities were a great deal more; that the profit-and-loss account showed a profit of $69.06, whereas it should have 'shown a loss of $1,930.94; and that upon receipt of the official call for a statement the books of the banks were falsely changed by decreasing the individual deposits $2,000 and increasing the profit-and-loss item that much, in order to prevent the report from correctly showing a loss. It is not contended that this count did not state an offense under the statute. (See R. S. 9-118; State v. Creighton, 118 Kan. 418, 235 Pac. 1064.) With respect to changing the books the evidence disclosed that when the assessment required by the bank commissioner was paid in on the stock ($8,000 in cash and $2,250 in notes), instead of crediting that to surplus or the profit-and-loss account as might have been done, a new stockholders’ account was opened, under which it was credited as a deposit. When the bank commissioner sent a notice to the bank for the report of the condition of the bank at the close of business December 27, the notice reached the bank on December 30. If the report had been made as shown by the books of the bank it would have shown a loss of $1,930.94. To prevent that showing the bookkeeper transferred $2,000 from the stockholders’ account to the .profit-and-loss account, making the latter account show a profit of $69.06, and changed the records of
Appellant contends that a new trial should have been granted because of the misconduct of counsel for the state, particularly because of remarks made in the closing argument to the jury. The record on this point is not very satisfactory. A day or two after the verdict of guilty had been received and before the motion for a new trial was passed upon, the courthouse burned. All the papers and exhibits used in the trial of the case and the stenographer’s notes, which had not been transcribed, were burned. Quite a little difficulty has been experienced in perfecting a record for appeal, but no serious complaint is made of the record as finally completed, except with respect to the closing argument of counsel for the state. As to this, counsel for defendant, from their recollection and from notes made during the argument, made up a statement of the argument, particularly the parts objected to. Counsel for the state also made up a similar statement. This did not contain all of the objectionable remarks contained in the statement made by counsel for defendant. In settling the record the trial court did not follow either statement in its entirety, but made up one which eliminated most of the seriously objectionable remarks contained in the statement made up by defendant's counsel and some of those contained in the statement made up by counsel for the state. At first thought it is difficult to see why the trial court should cut out objectional remarks which counsel for the state conceded he made, but the trial court heard the argument, possibly made notes of it, and may have concluded that counsel for the state did not make all of the objectionable remarks which he was willing, for the purpose of the record, to
Other details are discussed in the briefs. It would prolong this opinion unduly to state them at length. We have examined each of them and find no prejudicial error in them.
As to counts 1 to 9, inclusive, the judgment of the court below will be reversed, with directions to grant a new trial. As to counts 10 to 25, inclusive of both, the judgment of the court below is affirmed.
Dissenting Opinion
(dissenting): I cannot concur in the conclusion reached with reference to the highly objectionable language admitted by the state.to have been used in the closing argument to the jury. There can be very little question but that the use of such language would entitle the defendant to a new trial, and the defendant in my judgment should not be deprived of his rights simply because the trial judge, in the absence of the actual record, did not recollect the unfair and improper language, which the state admitted as having been used in the closing argument to the jury.