*1 189 opinion it be O’Reilly. should sustained to the it of the record was held state the nonsuit Under was volun- tary. Gray like is announced in v. 234 Ward, A rule 291, 295, Mo.
Furthermore, is it held in Lewis v. Co., Center Crk. Min. S. W. 938, taking plain- 199 Mo. 97 that the of a nonsuit upon give tiff court that it announcement intended to evidence, given, demurrer no such instruction in fact voluntary, appeal lies, is fact plain- no that the excepted overruling1 ruling1 tiff the trial court the motion aside nonsuit not alter the case. set does voluntary of a as to whether it is in The character nonsuit or voluntary designation be from its determined the trial plaintiff, the manner which it is court but invoked to Simply by the be ascertained attendant circumstances. to call a involuntary in it so. nonsuit the record does make [McFarland ’Reilly, Gray, supra; v. Co. Bank O Greene v. Mo. l. c. 447; App. 154 Mo. l.
S. W. Co. c. 135 S. Thero, Commission 961W. and cases.] conclusively in this
The record shows what occurred and the case plaintiff bring the within the. rule announced facts thus disclosed cases discussed others which have not been We cited. voluntary plaintiff hold, therefore, that the nonsuit taken consequence appeal should dismissed. It is so and as a that this be ordered. All concur. (2d) 883. Appellant. S. W. v. Frank L. Summers,
The State Two, May 25, 1928. Division *2 Jones,
Matthews & Dan B. Hughes, Dale, John D. H. Libby J. and W. L. Hamrick appellant.
North T. Attorney-General, James, and David P. Gentry, Assistant Attorney-General, respondent. for
HICBEE, Summers, L. of Bank of C. Frank the Ethel, incorporated banking institution located at the town of Ethel in County, Missouri, 9, 1924, on Macon indicted October and having deposit in the first count received on said money April 9, $358.05, property and L. 1923, the W. on he, Summers, the knew after said well said was in Baker, and insolvent. The is based failing circumstances indictment counts, and six other Section Revised Statutes contains money charging receipt day. each the on the same except depositors are identical as to counts the names of the deposits. and amounts of the several City, Missouri, arrested The defendant was Kansas 1.0, change Shelby County, 1925. A of venue awarded to where February case ivas tided on 1926. The dismissed State as to count of At close fourth the indictment. the evidence count, third State court sustained a demurrer ground 2, 5, overruled a counts demurrer to de- murrer count stated facts sufficient to constitute neither violation of section the statute. day day February 19, The trial until when the continued from . jury finding guilty returned verdict defendant assessing punishment count of indictment and his first finding two years in penitentiary. jury made no remaining four on motion de- counts of the indictment fendant, discharged sen- the court him those counts. The court as to according appealed. tenced the to the verdict and he I. Appellant of its own mo- assigns error in the court failed require tion to the seven counts upon to elect one of State *4 in place upon trial, in indictment defendant and it would :a(ri; State to Siting offered one objection made to
count. No
ivas
no motion to
joinder
seven
There was
of the
counts.
require
misjoinder,
the State to
first ob-
nor to
elect.
quash for
misjoinder
appellant’s assignment of
made in
errors
wras
jection to the
in
court.
this
duplicity in an
or an
information
in
general rule is
“The
(State
Nieuhaus,
v.
Mo.
by verdict
is cured
dictment
902);
140 W.
Davis,
v.
237 Mo.
S.
but that it is
73;
S. W.
State
quash
duplicit
a
or a motion
a
demurrer
to
to sustain
error to refuse
timely made
the attack is
and
or information when
indictment
ous
Flynn, 258
Mo.
review.”
preserved
properly
[State
the error
211, 219,
In State 127, Judge page On distinct separate with five felonies. in counts said: White beginning
“At of the trial a motion to elect would have been proper and should have been sustained. The defendant, however, at that time did not object move but did elect, the introduction any of ground, evidence on that it and was error in the court to objection.
overrule That error is not saved in the motion for new trial.”
By going objection to trial misjoinder without the error of waived. [Kelley’s 200; Crim. Law, sec. C. J. 883.]
II. many years For Summers had been cashier and chief execu- tive officer of Following year the Bank of Ethel. large- due
ly depression to the financial existing, then that bank possessed a
itself considerable amount of un- During part latter paper. expressed Summers collectible his duties as cashier and to be relieved of the desire caused resignation show board directors to his as such. minutes knowledge any entry however, disavowed such directors, president Some effort was made of the minute record. place. Notwithstanding man a to take his all secure suitable 6th, until 5th to act
this, Summers continued shipment hogs. Chicago with a From 1923, when he went to president bank, R. of the as follows: Chicago Heaton, to J. he wrote my resignation cashier of you “I herewith the bank of hand already I in effect. Ethel, Missouri, which is have written Ethel, my place. There to be and take seems to come down at once Jose change I and rest. Will something wrong must have me, truly, F. L. Summers.” “Yours you see later. cashier, defendant, the assistant
Following departure of the Bradley, cashier, referred to de- Jones, and a former Jose Ben days, bank for a few affairs of the conducted the letter, fendant’s and, by the board of directors at was held a conference when Gooding, a banker Mr. stockholder suggestion of Roscoe closed the bank and temporarily directors town, the neighboring requesting examination of the Department, Finance notified the and re- bank examiners arrived In due time the bank. condition of day May, 15th about the charge bank until mained far as the this cause so record which time the since without loss going concern ever has been shows, creditor. During 23, March been examined The bank had *5 attention the defendant and called the examiner examination the large paper amount of undesirable to the directors board of the Immediately subject criticism. things to and other case the note left, remarked the assistant cashier Summers to examiner after the trouble to fool a bank that it was examiner. Two or three after the examination the weeks instructed the assistant Townsend, N. not to allow C. one of the to directors, look bank. at the books the capitalized Bank $15,000. of Ethel was at At the time show, surplus
question its books $7500 account of and an undivided profit $1335.49. account of There was evidence notes owned aggregating’ $25,000 bank $30,000, to were uncollectible prior deposit, at and to the time of the and had not been collected February trial at the time of the 1926. The record is some- vague adopted plan to what as reopening the directors for bank, disposition and as to what notes, made these bad they and as to how out of were taken the assets the bank. From testimony charged they given by we infer were off and bond equal directors amount of paper off, upon the reopened. execution of the bank apparent
It testimony from the ran the bank and conducted its affairs with but little aid or interference, kept assistance from They largely the directors. were in the dark monthly meetings its condition. At the board of directors presented the notes themselves were not directors, but, to the in- stead, produced register the cashier the note from which he would describe to the directors *6 indictment, first count of the By
IY. the defendant stands reception deposit April a 9, $358.05 with the 1923. proof deposit 2, shows this was made on March 1923. The de- objected of proof fendant to the introduction of such on said date as not the offense †]16 3908, Section 1919, Reviseld Statutes complained deposit: cures the error of in’the date of the in- “No dictment or information shall invalid . be deemed . . for omit- ting to committed, any state the time at which the offense was ease offense, where time is not of essence of the nor stating for imperfectly.” time Many objections
Y. were offered the defendant to the intro-
duction of they evidence but State, as were not particularly called to the attention of the trial court j)y required 1925, for trial, motion new Laws page thev are not here for review. Standifer, State v. [See S. W. 856.]
YT. Appellant complains following instruction State:
“10. you The court jury instructs the that if find that Bank of Ethel, of Ethel, Missouri, April fact, failed on then such fact,
if prima-facie it is a knowledge is evidence part banking that the said in- ,stifntiou failing insolvent and circumstances 7th, 2nd, 3rd, 6th, March March March 7th and on March prima-facie jury that 1923. The court instructs the evidence is such degree probability pre- in its that raises such favor it must unless it vail be rebutted.” concluding
Tt instruction authorized is claimed this is proviso is, clause or Section Revised Statutes There however, no Bank evidence the record that the of Ethel failed. contrary, On the it did fail. A shows few days flight, tempo- after the defendant’s the directors of the bank rarily closed it for Bank examination the State Commissioner. As stated, good, heretofore losses on account of bad loans were made discloses, the bank was so far as record continued going any business as concern without loss to creditor the bank. The term “failure” used in the statute is technical term. A may failing be or insolvent condition a failure without resulting-. applied commonly “Failure is such discontinuance of insolvency business as bankruptcy; suspension results from or is usually temporary, may may insolvency.” involve New Inter. [Webster’s Diet.]
Failure, when used iu enterprise, connection with in its ordinary sense, and obvious means abandonment or defeat. C. [25 said, quoting J. In 60 it is note Pettyjohn, White 130.] N. may C. 55: be . “There checks . . but long so as the enterprise prosecuted is and its results are unascertained, there giving prejudicial no failure.” of this instruction error. *7 complaints VII. giving errors refusal of other general specific required by instructions are and not the Laws of 1925, page 198, and will not be considered. There errors are other assigned in the ap- motion new trial that are referred to in pellant’s assignment brief or of errors and are considered as aban- doned. judgment is reversed and the cause remanded. Davis and
Ilenwood, CG., concur.
PER. foregoing opinion C., adopted CURIAM:—The by T&gbee, opinion judges All the court. concur. Nerini, Appellant. (2d) S. 953. W. The State v. Dominico May Two, Division notes security owned and the back of them. Much of the this case has to do the various notes toj above referred owned bank, and their prior value April 9, day laid in the indictment as the one on which deposits complained defendant received the of in the They seven counts of the indictment. had not been collected at the time trial and were off and their book value made good by the very explained directors some manner not well record, May the time the bank for business on 1923. These notes alone made the insolvent at the time of the deposit, they surplus exceeded in amount the full capital, and un- profit divided accounts. There was evidence of substantial liabilities records, shown on the bank’s so we think the defendant’s con- tention that insolvency there is no evidence of the bank at the time is not taken. well III. Nor do we depositor think that the fact no suffered controlling any loss is a Fortunately them, fact in the case. loss was averted refinancing the action of the directors ^.jle|)an]- an¿ jn replacing paper. the bad that of But itself is no defense this action.