16 S.D. 309 | S.D. | 1902
Plaintiff in error was sentenced to a penetentiary term of four years and six months on a verdict of guilty resulting from a trial under an indictment which charges that: “Fred L. Stevens, late of said county, heretofore, to-wit, on the fourth day of January, A. D. 1900, at the county of Aurora and state of South Dakota, then and there being the cashier of the Bank of Plankinton, a corporation duly organized under the laws of the territory of Dakota, and then and there duly existing as such corporation under the laws of the state of South Dakota, said corporation being then and there engaged in the banking business at the city of Plankinton, in said county and state, and being then and there insolvent, did then and there feloniously and knowingly receive on deposit into and for the Bank of Plankinton as cashier thereof, from and of one Seth Noble, the sum of one hundred and forty-five dollars, in good and lawful money of the United States, the said Fred L. Stevens, as cashier aforesaid, at the time of receiving said deposit well knowing then and there of such insolvency of the Bank of Plankinton, whereby the said deposit of one hundred and forty-five dollars, lawful money of the United States, was lost by the said Seth Noble, to his great damage and injury.” The statute provides -that ‘ ‘no bank, banking house, exchange broker, or deposit office or firm, company, corporation or parly engaged in the bank
When the Bank of Plankinton was organized, there was no statute authorizing such incorporation, and the nonexistence-of a de jure corporation stands proved, and is conceded by the prosecution. That there can be no de facto corporation unless the statute authorizes the formation of a de jure corporation is too clear to admit of any dispute, and, consonant with such doctrine this court has held “that there can be no de facto officer without a de jure office.” Thurber v. Miller, 11 S. D. 131, 75 N. W. 901. As none of the essential elements of an estoppel in pais are present in this case, we need not determine whether such equitable doctrine of estoppel by conduct should preclude a defendant in a prosecution of this character from speaking the truth. It was clearly shown by the undisputed testimony that the Bank of Plankinton was
In his official capacity the accused made sworn statements to the public examiner, during the year 1899, purporting to show the financial condition of the ■iBank of Plankinton on March 11th, June 30th, and October 3d of that year, and these statements were admitted in evidence over the following objection: “Defendant objects because they are irrelevant, and specifically at this time, as grounds for objection, that the undisputed evidence in this case shows that there is a material variance between the indictment) and the facts proyen' regarding the deposit of money and the alleged] incorporation of the Bank of Plankinton; that it appears by proof offered by the state that the Bank of Plankinton is not a duly organized corporation, created and existing as alleged in the indictment, but that it appears that the pretended incorporators of the Bank of Plankinton, failing to incorporate, became partners, and, as partners, were jointly and severally liable for the debts of the concern; that upon a verdict of either acquittal or conviction in this case the defendant could not plead in bar, and show by the record, without extraneous evidence, that the charge contained in this indictment was the same as one that might be made against him for receiving the the same deposit while acting for the partnership which we claim the law established as proven by the evidence in this case. For that reason the vari, anee between the proof and the indictment is Raterial, and no evidence is relevant or admissible, tending further to prove the
Pertinent to the issue of insolvency at the time the deposit ’ was received, and bearing upon the question of availability as an asset in the hands of the receiver, it was proper to allow the wiuuess Rogers to testify that one of his long overdue notes, produced at the trial, was given without any consideration, as a mere accommodation to the accused; and the introduction in evidence of his written assumption of its payment, executed concurrently with the original note, was not erroneous. As
By referring to the original deposit slip written by Seth Noble at the time of the transaction complained of, and presented to the bank with the deposit described in the information, that witness was permitted, according to the daily and universally approved practice, to refresh his memory as to the denomination of the money received by the accused, and such action of the trial court 'is sustained without comment.
The public examiner officially inquired into the financial condition of the bank soon after the accused received the deposit of the prosecuting witness, discontinued business, and left the state; and a studious examination of his entire testimony, which is too voluminous to justify repetition, leads to the conclusion that there was no error in allowing such officer to refresh his memory from an exhaustive memorandum made by himself at the time of the examination, about which he had testified specifically. The books of the bank being in evidence to confirm the various mathematical computations of the' examiner, the method employed receives daily judicial sanction; and his testimony, so far as.it relates to resources and liabilities, was competent to aid the court and jury in correctly summarizing the multitudinous items and entries contained therein.
Over the objection of opposing counsel, but consistent with an Iowa case (State v. Cadwell, 44 N. W. 700), this same witness was permitted to state, in response to a question propounded by the prosecution, that the bank was insolvent at the time its doors were closed.pursuant to the direction of the plain
With the mere-suggestion that the testimony of J. D. Bar-tow was without probative substance, and in no manner injurious to the defendant, we proceed to determine whether a witness who admits on cross-examination that he is prejudiced against the~accused may be interrogated by the prosecution as to the cause of such hostility. Mike Gales, the county treasurer, and witness for the prosecution, having stated on cross-examination that he was not on friendly terms with the accused, was allowed to testify on redirect examination, and over the objection of counsel for the latter, that, as a customer of the Bank of Plankinton, he deposited public funds with the accused, and had been required to reimburse the county in the sum .of $2,900. While it is rudimentary in the law of evidence that a cross-examiner may interrogate an opposing witness concerning his unfriendliness to the person against whom he testifies, it is not permissible for the party calling such witness to elicit a detailed statement of the facts and circumstances causing such unfriendliness. The feeling entertained by the witness toward the accused is shown for the purpose of aiding the jurors in the process of weighing his testimony, but the cause of such feeling would tend to divert their minds from the case on trial, and lead to a multiplicity of issues. The purpose of such inquiry being fully attained-when the bias of the witness is shown, the reason therefor is immaterial, purely collateral, and a matter of no concern to the jury. People v. Goldenson, 76 Cal. 328, 19 Pac. 161; Butler v. State, 34 Ark. 480; State v. Glynn, 51 Vt. 577; Polk v. State, 62 Ala. 237.
As employed in the statute with reference to banks, the word “insolvent” means a present inability to pay depositors, as banks usually do, and meet all liabilities as they become due in the ordinary course of business. State v. Cadwell, supra; Daniels v. Palmer, 35 Minn. 347, 29 N. W. 162; 16 Am. & Eng. Enc. Law (2d Ed.) 636, and numerous cases there collated.
Questions discussed as to the manner of obtaining a jury, as well as the gratuitous statement of the prosecuting attorney concerning the wishes of the people of the county from which the trial of the case had been transferred, are points not likely to arise at any future stage of the prosecution, and therefore require no attention.
The judgment of conviction is reversed, and the case remanded for a new trial.