*1 277. (2d)W. Thompson, Appellant. L. E. The State v. Banc, October
Court en
(cid:127)1070 *2 & Jayne,
Mills H. S. Bouse and Brown <& appellant. Gibbons for Attorney-General, Slia/rtel, Miller, and Albert Assistant Stratton Attorney-General, respondent. *4 ELLISON, charged P. J. The defendant was by information County of Adair with receiving the Circuit Court Willmathsville, banking
the Bank of state institution of which he cashier’, 24, 1928, a cheek when he knew failing and in circumstances, bank was insolvent in violation of Sec- 1929. tion Revised Statutes The ease was change sent on County Lewis in the same circuit, there, venue to and a further ap- being Section plication filed under Revised Statutes dis- judge, qualifying the circuit the Hon. E. C. Hilbert was chosen by judge. agreement special The trial resulted in a conviction punishment His by of the defendant. assessed jury im- at penitentiary years, for two prisonment and appeals he from and on that judgment sentence verdict.
ÍÓ73 evidence. to the State’s stood on his demurrer The defendant destroyed by fire nearly all bank records The .bank and reception and days deposit, after August 29, five day, August next its board of directors the order of was closed complain of assignments appeal error on this óf 30. Most of the of evidence of- insufficiency and of the admission finan- exigent circumstances to show the State in these fered liabilities. at the time —its assets and of the bank cial condition are of the instructions also, challenged is and some information, assailed. tending financial to show the condition bank
The evidence along soon as the was, general, this line. As ruins of bank had sufficiently Norris, district, B. J. state examiner for that cooled records, and took such them were recovered papers searched Kirksville, process liqui Bank at Commercial State then to the Vaughn, special L. L. deputy hands of finance com dation yault thing principal value found in missioner. The with its contents! There also some old the note case books papers fire, charred records, some customers’ and in the appeared partly open, pennies to have been left money safe, which Also, Mr. Norris $2.82. found some cheeks and the amount have appeared which not to been entered deposit slips on the was, however, deposit.ledger. books. There reported to his board of directors to the au- forcibly up taken he held from the bank
thorities that Mr. fire. an inventory time of Norris made all at the robbers .the bank, as far as he could determine them assets and liabilities'of triplicate copy thereof with the State Finance at the time and'filed Vaughn, Mr. deputy with and another commissioner. Department evidence, inventory plaintiff’s marked was introduced Exhibit This follows: was' as It AS.SETS $58,039.86
Loans...................................... ? Overdrafts ..........................l........ Banking ......................’ ....... house ....................... Furniture and fixtures ............................ real estate
Other ............,.......................... 2.82 Cash- Bank, Gfreentop, 2,771.01 Farmers State Mo. .. from Due Kirksville, Kirksville, 1,029.97. Bank of Mo..... Due from *5 126.16 ...!.............................. Cash items 1,968.05 entered on books apparently not on banks Checks $63,937.87. LIABILITIES .....................................$15,000.00 Capital ? ................... Surplus ? Undivided ........................... profits deposits........................... Individual ? deposits ............................... Time 34,000.00 payable ................................ Bills 4,790.24 .. slips apparently not entered on books Deposit 111.) (Quincy, T. over- Savings Co. State Loan & 230.85 ................................... draft 9,916.78 ..........'........................ balance To $63,937.87 in- commissioner, the Vaughn, deputy continued speciál Mr. the stating Norris, In vestigation examiner. started'by Mr. the bank trial, we by at the developed the him and shown facts dealing the liabilities, with up the then the shall take assets and foregoing they appear each in in which items of the order inventory.
First as to the loans. Notes to the aggregate closed for the $7966.61 the amount were found note case. Notes $8501.75 envelope Savings, were in the vault in an addressed the State Loan & Trust Company Quincy, Illinois, $2425 and for in an envelope addressed to the Farmers’ State Bank of Greentop, Missouri. $18,893.36 This made of notes in $31,627 the bank. Notes for were Quincy by collateral bank, held as said and notes for Greentop foregoing bank. All the together said taken the made aggregate $58,039.86 inventory. notes, appearing Dummy being duplicates original copies notes, also found $12,818, these were amount of but not included in inventory Mr. Vaughn said, though in his testimony earlier at place one had he they were. apparent they figured stated We think it were not so enough original because notes were accounted for to up make total. There to the amount of notes on hand was received. However, assumed, inventory this as did the throughout trial, notes found note case envelopes two plus pledged Quincy *6 personal the loans had stood a little above or below
disclose-'that $65,000, which bank in addition the had ‘Carried loans to real’ estate being to’$3500,- figure $2750 this latter the when bank of from the April up before the fire. The examined notes for collateral was possession deputy They were in the commissioner. never by identity pledgee held banks their and amount were ascer the reports by banks. this tained from made these two on hearsay, objected largely to, point perhaps was and was but there enough though to establish their the was other evidence existence question is close. -evidence as to the value of the loans on closed, which was is
dates on and the was received exceedingly meager probative much of it of doubtful value. Mr. Vaughn possession testified the amoruit uncollected on the notes in his began 20; nearly at time of the trial —which on October $7602.99. after the bank closed—was presume two "We this $18,893.36 bank, found in up notes as the for refers to notes ‘ .testimony in his hands. collateral never were There was that most uncollectible but the of these notes were evidence fails to show when they became so. up *7 building which stood.
the lots on the testimony There was.no as to the value of the furniture and fixtures August, They 'in 1928. had been through $2630.33 carried at the years 1926, 1928, by 1927 and as shown reports the examination years first of those three for-the two the official pub- statement April, lished in inventory The “other real estate” the 440 consisted of acres Schuyler County farm land in eighty acres Scotland
County, $15,400. all encumbered for The land been had carried on bank for $12,000. books four as of the This, the value of take.it, represent equity, making -would the value of the the value $27,400. expert opinion of the fee There was testimony for the witnesses, average three from whose per valuation 160 acre for Schuyler County August, acres of the land in $31.50, making, $5040; that tract worth and for eighty another acres of the Schuyler County acre, per amounting $15.40 land We $1232. testimony remaining as to the value of find the the acres of Schuyler. average County land. The per value put acre these County eighty the Scotland fixing witnesses on acres was $15.40, $1232, making tract the value of that also at 320 acres the' acres both counties worth $7504, remaining entire with the against valued, bank $27,400. not as valuation of record The acres liquidation that in the course of the eighty-acre shows one tract was Finance deeded the Commissioner to reduce the encumbrance on rest,- remaining later foreclosed, and that land was bank nothing. realizing foreclosure, however, The date of this was not shown. n stated, $2.82 As in coins were found in bank safe. There slip calling a cash also in the vault for money, coin $163.48, and money, $4002, paper $4165.48. a total of The defendant stated Norris, .Mr. the bank examiner that this was the amount of cash on August 29, at the close hand of business on day the bank fact, If burned. such money was the was either taken robbers, reported, destroyed or was fire, way made with. otherwise There is no showing the amount August day of cash deposit on was received. When the preceding April bank statement was made the the cash at stood $557,82. The fact verified at the trial .was on day received, there was due Bank of Willmatksville from the Farmers’ State Bank of Greentóp in the form of a record, account of $2728.01. sum does not show the The. amount August 30, due on bank closed. On the the Willmathsville just deposit in two Willmathsville Bank had dates mentioned the the Bank $552.27. of Kirksville
The preliminary inventory Norris, Mr. the bank examiner made items, among showed Bank “cash Willmathsville assets of the money $126.16.” a post were order These shown to consist of office $121.16. for and a check on another entry foregoing inventory The on bank last on the was “checks books, apparently These checks not entered on $1968.05.” — they vault, Mr. Norris found in the and the defendant told ledger and posted had on the were checks which been cashed but charged they which drawn. to the accounts burglary robbery $5000 and
The bank carried insurance for $10,000. record the defendant cashier bonded does anything sources. not show whether was realized from these inventory. capital Turning side of to the “Liabilities” was no $15,000, stock of the bank was shown therein. There *8 during years the had had previous five bank surplus, of a the covering period. appears reports statement none as from the August any showing profits on as to undivided Neither was there item in the largest under this 1928. The amount carried years was in $1370 five reports preceding and statement for the 1925; bank April, in before the $240.91, 1928, four months the lowest closed. ledger destroyed fire, deposit
As or at the least not the found, difficulty great proving the State had the amount of de- posits by deposits. carried the bank. to demand Claims First as the regular deputy deposit on were filed with the commissioner- accounts challenged of The defendant went over with him and three these them, rejected. the others all of which defendant said were The_ $31,078.14. Also certain approximately were correct. totaled These $97.68 bail- filed for miscellaneous claims were ing hay; and allowed: one for alleged deposits presented two claims on time Leonard Margaret rejected Smock, Nancy Loomis and J. which were aggregate ordinary deposit the such and entertained as claims $2789.78, Coursey .This $3190. H. A. amount of claim of and the claims, including miscel- deposit the aforesaid would make demand duplications claims, up $37,155.60. may be some There laneous foot to H. A. what the foregoing. It is not clear from record with, Coursey deposit account $3190 for. claim He testified his $2000 and 1920 at about the Willmathsville Bank started about analyzed foregoing evidence never increased. The State has not 600 pages than gone of more in the briefs. We have over record bearing its As on as best can and our conclusion. we the above is and statement may reports probable correctness official add of demand average years an amount preceding for the four show $38,843.96. deposits April 12, 1928, On at the last examination closed, deposits $38,146.41. before the these stood at deposits $15,588.55. proven The time Mr. totaled Norris testified they During the defendant said were correct. preceding three these, they $19,000. had run about Outside of one claim filed alleged deposit $2650.43 on an $1360.42 to time cut and al- lowed as a common claim. $1429.36 Another for entertained claim instead of a time certificate. Both these are included in the items listed in preceding paragraph. payable given $5000
The bills consisted of note the Bank of Greentop, Willmathsville to Bank the Farmers’ secured aforesaid; $29,000 Savings collateral and a note to the State Loan Company Illinois, Quincy, $31,627 Trust with which was the & collateral heretofore mentioned. The existence of these notes was payee banks, established officers and the defendant n they admitted were correct. preliminary inventory “deposit slips apparently also showed books,” $4790.24. not entered on The evidence showed that totaling $972.83, deposit slips vault of the burned bank found August August dated from 28. Mr. told Norris represented deposits these which had not been entered on the books. slips amounting $3817.41, found, Other all dated the day together last open, remained These taken figure inventory, made $4790.24. carried in the preliminary inventory The last item in was an overdraft of $230.85 on the account of Bank at the of Willmathsville Savings Quincy. Company & Loan Trust The auditor of an the latter stated at the trial the account overdraft of showed fire, August 24, August 29, 1928; *9 $340.31; August and on the board of directors closed the 30* bank, $230.85, inventory. the Other facts the shown in the amount necessary will be stated as course opinion. of the information, I. al- quash The defendant filed a motion to the leging: vague any crime; and charge that it failed it too to that him accusation made precise indefinite to advise of nature of the the against him; distinct crimes. charged separate and that it several and assigns overruling motion, further inde- He in this and error the of pendently asserts, arising the face of the as a matter of error support a con- proper, record to that the is insufficient information viction. charges in 24,
The information substance that 1928, defendant, being the then and there cashier of the Bank of Willmathsville, deposit knowledge for in with received said bank that circumstances, the in failing same “a certain insolvent and
1079' thing right valuable a action, payment and of to wit check for the money.” $460.20,' of description Next a of the check follows signed County Savings drawn on the Knox Bank and Bessie' Grainger. say goes The then that so receiv- information on to after holder, ing deposit paid the cheek for the ¥m. the defendant Ambrosia, Sr., deposit, leaving $25' the-value the sum of from said prop- right $435.26, being of check the and of action the aforesaid erty the Ambrosia, Sr., of the said William which the defendant in away. steal, carry aforesaid, manner and form did take specific objections is appellant. Two The first are made the beginning alleges deposit the the check that information in of charge $460.26, $25 cash the inconsistent that then makes paid balance to the holder and that was of the $435.26, W. money. (Mo.), 289 S. point On this State v. Sheets 553, cited, charging embezzle-' holding is that decision an information support ment of a draft not embezzlement will a conviction' for think, money, though money We proceeds be the of the draft. alleges however, plainly sufficient. It information here was $25 Mr. Ambrosia deposited paid check was that cashed, paid $25 deposit,” “from said check was first not that the money informa- deposited. It true the to him and is the balance allege de- “right and check” tion does posited, of action the value of the $435.26, but payment $25, remaining after check was de- money and allegation that is not an that not in State posited. judgment are different facts from those 466, And, -under' Salmon, 520, 1106, 115 W. v. S. Mo. 39, (2d) McClure, S. W. holding 1228, 1241, Mo. State v. 43, case, allegations sufficient a banc in the information charge against him. advise the defendant of the made information objection, it, is that second understand did alleged charge the defendant repugnant concludes with that and cheek to “take, carry away” right steal and of action was held remaining It $435.26, aforesaid. the balance value of 46, the crime Sattley, 33 W. that an in- larceny,' in the nature defined the statute is objection repugnancy. concluding subject is dictment Indeed, to the so any says if expressly Section Revised Statutes circum- specified shall receive officers This larceny.” enumerated, guilty “he be stances shall deemed against assignment the defendant. is therefore ruled corpus proof assigned IT. was no It is next there *10 extrajudicial defendant. independent of the delicti admissions- following points showing necessary on the Defendant contends a defendant— of the —all of admissions resort to evidence without 10.80 (1)
to-wit: Bank going banking that of Willmatlisville was a August 24, 1928; institution (2) on that the defendant was cashier thereof; (3) information; deposit alleged that he received in (4) that failing circumstances; was then insolvent inor (5) that the defendant knew it. It asserted is offered substantial proven evidence outside of admissions the .defendant’s points, namely, two of these cashier five to show defendant was bank, failing and that circum- the bank was insolvent or. stances. corpus
The in proof rule this State full delicti is that of the dependent extrajudicial required. of the defendant’s not admissions is contrary, slight On only corroborating what seemed to be facts McGuire, have been held 39 S. sufficient. v. [State (2d)W. independent, proof Neither is all it essential that 523.] corpus L., R. proof. delicti came C. sec. first in order of [7 6, p. 778; 16 J., specific C. as p. sec. The defendant’s 737.] signments foregoing under by this head are rules. to be measured
(a) There
was evidence that
the defendant had served
question.
cashier of the bank
the time
for several
before
stamped
check
endorsement of the bank on the back of the
deposited, says
meeting
“L.
Thompson,
E.
Minutes of a
cashier.”
present,
and
board
directors at which the defendant was
signed by him,
days
held the
after the
six
after
fire and
made,
in-
cashier,
him
an
describe
as does
exhibit
himself,
defendant,
a few
speaking
troduced
from a date
This,
earlier.
defendant’s' admis-
months
in connection with the
sions,
enough
State, 138 Ark.
to make an issue-.
[Skarda
(b)
Was
proof
there .sufficient
that the bank was insolvent
failing circumstances,
admissions?
independent of the defendant’s
According
checks
testimony
to the
admitted' certain
the defendant
but
paid
found
the ruins were
which
the bank
checks
had been
yet
charged
accounts;
certain
to the drawers’
and that
accounts
slips represented money deposited with which customers’
Also,
deposi-
filed on
had not been credited.
he admitted the claims
correct, except-
checking
tors’
accounts and on time
certificates
few;
$34,000”
up
a
Payable,
“Bills
was made
and
& n
$29,000
Quincy,
Savings
Company
note to the State
Loan Trust.
$5,000
Greentop.
note to the Farmers’ Bank of.
There was other
de-
proof tending
facts.
checks and
to establish all of these
safe;
slips
posit
were discovered
the ruins in the vault or
checking deposits
independently
claims
time certificates
claimants;
banks were
presented
the two notes due other
If
items
produced
proven
officers
banks.
each of these
those
cor-
alone,
say
was sufficient
or elements of
stood
there
should
But,
whole,
roborating
on the
to let in the admissions.
did
*11
.108Í
prima
insolvency?
the State make out a
facie
of the bank’s
That
.case
question we discuss in the next
opinion.
division of this
(which
Under the statute Section 41.16
repealed
IIT.
after
below,
201)
1931, p.
questions
the trial
Laws
the ultimate
were:
(1)
bank was
failing
whether the
insolvent or in
circumstances
received;
deposit
(2)
when the
and did the
it
know
(Mo.),
Thompson
(2d) 67,
at the time.
v.
29 W.
S.
70; State
[State
Sanford,
865, 874,
73,
v.
317
297 W.
Mo.
S.
proviso
But the
76.]
subsequent
at the end of the section made the
failure of the bank
prima
facts.
facie evidence of both
333
Shelby,
these
v.
[State
1036,
(2d)
64
269;
Mo.
S. W.
Burlingame,
v.
227,
State
Since there no evidence on so items that Avouldenter daily of. into statement the condition of Bank of Willmaths August 24, received, ville Aveshall attempt proof directly bearing not a discussion of the But thereon. summary we set out beloAVa of the assets do and liabilities on August 30, days 29 closed, bank burned and as shown in the record. We omit from the evidence the assets “overdrafts” proof these, because there was no of the amount of also omit figure any “other real estate” because there was no eAÚdenee as 520 200 acres value of acres of farm land the bank “banking use owned. We items house” and “furniture shown Mr. Norris’ preliminary inventory fixtures” the amounts showing less; the State adduced no evidence their since value was fixwe the amount and for the same reason due from the Farmers’ $2771.01, appears as Greentop inventory. Bank of at the Norris stock, liability capital surplus On the side of the statement un profits inquiry are out insolvency divided left because an meaning 4116 Avithinthe Section these items are against Hill, considered as defendant. v. 329 Mo. to be [State (2d) 105; LeAvis, 1070, 1089, 44 S. State v. 20 W. Mo. (2d) 537; Cox, 790, 795, rel. ex Arndt S. W. (2d) fact,
S. W. Also matter of there was 1081.] is profits. statement surplus undivided had a
follows:
ASSETS $58,039.86 Loans.............................-......... *12 —-- ................................ Overdrafts 9,121.75 Banking house.............................. 2,630.33 ........................ & fixtures Furniture Other real estate.............................. 2.82 ........................................
Cash 2,771.01 B., Greentop,.................. F. S. Due from 552.27 Kirksville, ................ Bank of Due from 126.16 ................................ items Cash 1,968.05 entered, .......... banks, Checks other not on $75,212.25 LIABILITIES $37,655.60 ............................ deposits, Demand 15,588.55 ......... deposits, Time 34,000.00 .............................. payable, Bills 4,790.24 entered, .................... Deposit slips not Quincy, D....... 230.85 Savings Co., L. & T. O. State 81,765.24 ................ liabilities Total 75,212.25 .................... assets Total 6,552.99 $ liabilities over assets................ Excess of the bank was insolvent to the But, while this statement shows August 29, it close of business on we think $6552.99 extent at the insolvency the fol prima even a facie case of to make out fails First, the bank loans than lowing it assumes had no more reasons. up in vault $58,039.86 in found for collateral —in *13 guilty you, verdict of not must convinces a be returned. dence so in the evidence the instance case does not furnish opinion In our just any basis for conviction under the instruction substantial many in proof. hiatuses We There are too essential quoted. land worth than the omitted less the encumbrances may surmise had been thereon, the cash abstracted from the safe before the that just reported. loans were amount of the examiner fire, and that the suspicion. must rest on surmise and conclusion But that proof warrants a finding State contends the that in loans were worth much than face. $58,039.86 inventoried less their $18,893.36 that of the in *14 given- 3, aforesaid, “yet the court had Instruction No. as the burden changed” proving really (italics ours) the ; of State’s case is not and innocence never presumption that the of shifts but abides with the throughout notwithstanding trial prima the a defendant facie case State. has been made the presents a Shelby,
This situation like that State v. 333 1036, 269, (2d) point 64 S. W. where the earlier cases on ably the are re by Cooley, C., many and of them overruled. viewed How it can any jury intelligible guide be was left with they said the when were prima that the State’s one instruction facie case must prevail, told rebutted, if in another instruction the not and that burden of changed, really than we can see. In is not is more this ease Instruc particularly pernicious No. was because the tion defendant stood the State’s evidence. on a demurrer to n During liquidation a number of V. the of the bank course n against judgments the bank and- the and obtained claimants sued The' These were admitted evidence. Commissioner of Finance. contending the-judgments objected assigns here defendant error hearsay party to him he was a to the actions were because not made point is well they in which were This taken. obtained.
judgments question insolvency, competent the of bank’s were on the existing the was if and insofar as on claims when based appears received or when the bank closed. It from record the binding were be dates of some of these claims not shown. To on the necessary been bank it was not the defendant here should have that a party to the actions.
VI. No. as Exhibit The State introduced evidence II. M. Finance, Cantley, written S. M. letter Commissioner of Hewitt,, bank, 21, 1926, which was president of the dated December made as at close report based on the of an official examination of a number business on 1926. The contained December letter ledger, liability of bank, keep criticisms failure to of .such loans, carrying a bank mortgage certain loans and slow of second overdrafts, which “other defendant, loan due from at the values books, banking real estate” and the and the house shown on payable. amount bank be retired of bills letter advised that' the banking business, from another disposing either of its assets to suggestion put liquidation. was institution, by'voluntary or This grounds on to absorb losses sufficient assets lacked operate profit. could not at a By given State, jury told this No. Instruction the' only purpose letter admitted in “for the sole showing knowledge upon part Bank of of the officers covered Willmathsville of the condition of the date said (December 1926) “and is of itself report” the bank examiner’s insolvency no evidence 'bank the 24th- said August, 19.902’ was-re- meaning when “should ceived. on to the letter say But instruction then went by you only along and circumstances be considered with other facts insolvency of solvency determining detailed evidence in 19,90.” August 24, ad- assigns said bank on error to the -Defendant letter, contending hearsay, asserts and further mission it was itself, misleading, contradictory said No. Instruction they wrongfully jury if authorized to Convict the check was in 1930 after the found the bank insolvent two deposited. Peer, A similar incompetent letter held supra, *15 l, (2d) (2d) Long (Mo.), W.
39 S. 530, c. ahd W. 44 1086
67, given letter was 68. were that Tn those cases reasons hearsay, report report. official on an official and not an or based report which the instant letter official In case the was based on an though had not been in evidence the examiner testified admitted using therefrom it as a memorandum. that But there was no making examination the officers of the bank were advised of interrogated report, they of the contents that had and an- been 5301, permits, swered oath under as the Section Revised statute require writing 1929. Statutes Neither such does this statute merely says letters. It “the result of each be cer- examination shall tified upon bank, the examiner the records of and embodied the” report Legislature. in a to the a, authority While holding there is official that is not and record independent public competent in such sense as makes it evidence requires yet unless the law kept,' prevailing it to be view is said statutory authority be that necessary “if direction or is discharge kept public duty record is of a and is a convenient p. appropriate duty.” and discharging [22 mode of C. J.. Salmon, sec. supra, In State v. l. 216 c. 115 S. W. l. 914.] reports c. this court ruled official are bank examinations such, official records and admissible evidence as but that letters reports” way “in no connected with “in which defendant implication participation” had no are not. is that if the letters they are reports connected with the On should be admitted. Campbell v. other hand in Gas 369. aff. Laclede Co.. Mo. 352. Sup. 119 U. S. 30 L. Ed. Ct. 278. it was held a letter from Washington, the commissioner of land in which office at he ex patent pressed opinion copy an about a land im certified of a properly admitted. p. 808, Morgan also. C. J.. sec. [See. County Bank v. People, Ill. 304.] Considering the nature of the letter from the Commissioner expressions case, Finance in this that it was full of admonitions and opinion, that the recital of therein facts was merelv incidental to criticisms, and a basis for the that the letter was addressed to the bank, president bank, not to bank officers or the defend- ant, and that the latter was not shown ever have it or known seen contents, hearsay of its we think it was should have been ex- cluded, certainly prove if insofar as it was offered to actual knowledge part this, a criminal case. apparent. defects and No. 8 contradictions Instruction are says purpose solely It the letter was admitted in for the showing knowledge the bank officers’ of the condition of the bank proving report, on the date covered and not purpose for the nearly insolvency deposit'was when the received two later in August, says 1928; opposite, telling then it jury the letter is *16 evi- with the other circumstances in considered connection to be August, 1928. determining whether bank was insolvent dence knowledge proving had in the defendant’s purpose What the State it had unless was to show he notice of the bank’s condition we tendency failing condition, bank’s do not see. toward year reception The statement the instruction of was, obviously think, as 1930 a clerical the check instead of jury. error could misled which not have assigned if case probably
Other errors will occur is tried again. and remanded. given reversed For the reasons the cause is by Ellison, J., in Divi- foregoing opinion CURIAM: The
PER All en Banc. concur. opinion of the Court adopted as the Two is sion (2d) W. 998. Dollarhide, Appellant. v. Wade The State Banc, 1933. en October Court Rehearing, page opinion Motion NOTE: See notes totaling to the Greentop banks, all $58,039.86 stated, as above only notes the closed bank owned. Some doubt is on this assumption cast the fact that dur ing previous three apparently loans had run some higher reports $10,000 than that. The of the annual examinations Department 1926 and made Finance, for' April 12, 1928, official statement of verified af defendant’s four and one-half months fidavit—about before the bank burned—
Notes
notes for collateral. As to the' The evidence was that by $31,627 Savings in notes held Loan & Trust Com Illinois, Quincy, pany by had been sent company of the trust ato Kirksville, attorneys Missouri, firm collection. The ste $14,904.25 -firm testified that nographer for -this had been collected notes, by duplicate as evidenced certain deposit slips -these in her possession. There had been one additional $163, collection of but foregoing money not certain whether the witness was was all the notes, employers whether her on the had collected deducted at torney remitting. is, the amounts collected fees from before It furthermore, part these not clear what collections was for interest paid principal part words, was on the other part and what what —in ' unpaid. principal- Quincy remained The auditor of the Trus t paid company, his by said the amount as Company shown collateral, $14,429.18. secured on the- note AYe credits showing $7519.50 nothing record notes held as find Greentop, Bank the Farmers’ State collateral were worth less face on received than their defendant. found, ever due the so far overdrafts as the record No April 12, stood at The overdrafts discloses. when was made. statement last official running far Reports previous examinations as back April banking showed the house had the official'statement $9121.75. against books at It was carried on the insured loss been $6000. $5000 this was collected. Of So far have fire find, witness testified as to its value in August, been able know. Vaughn, special deputy said did not Mr. commissioner he building when indicating the cost of it is evidence There $7500, depreciated in 1919 it had some constructed and that use. the value value with No evidence was introduced to show
notes destroyed by words, notes were the fire—whereas for that no other years $10,000 higher' the loans had run than that. preceding three $68,000. they a time had stood little above or below During all that bank verified statement of the affidavits In the official cashier, April 12, and the defendant as issued as of president part only that months published the latter about four month— security personal and collateral the fire—the loans before $65,827.60, security $3,500, and the loans on real estate stated to be Further, wholly $69,327.60. the State failed to show the a total of 520 acres farm land 200 acres of the owned the bank value of omitted land have assume this would not added sub and we cannot the assets. Neither can we assume stantially to the value of that remaining pennies and nickels except $2.82 bank had cash no A in the vault slip fire. cash was found after the open safe money money, a total paper $4002 coin calling $163.48 conclusively accept day. cannot And- while we that $4165.48 un- fact that it is especially in view of the figure correct, this 12, 1928, April compared with former usually large —on money say can was de- only the cash was —neither stroyed by fire. Walser, 1 W. It was held error character, to refuse an instruction asked (2d) 147, 151, case of this a containing language: this by the defendant enough goes his the evidence the case to show “It is not entirely with rea- evidence must be inconsistent a guilt, but such strong, his supposition Suspicions, innocence. however sonable great, justify a will be sufficient to con- probabilities, however evidence, justify positive, must viction, conviction be but the establishing guilty charge convincing, contained beyond doubt, indictment reasonable unless the evi- ’’
was evidence notes the vault There at the time of the trial nearly two there remained uncollected testimony that most of these were not after, and there collectible. year bankruptcy makers more than a after went Three of into deputy attorney commissioner and his made bank closed. the investigations, are testimony. the dates of these not fixed but $15,000 collected, ap trial less than had been time of the At the $31,627 in notes held as collateral the State parently, on the Savings Company Quincy. But Loan & Trust there was practically , question the rdtimate directed to to what the notes no evidence regular banking failed, course of when the bank worth in the point. Hill, 329 That was the essential v. then. or close to [State (2d) 106; McClure, 223, 1249, l. c. State v. 325 44 S. W. Mo. l. c. Mo. 48; Thompson, (2d) 70; (2d) v. 29 S. W. c. l. c. 31 l. State S. W. (2d) Beaghler 423, S. W. (Mo.), 18 v. 427.] seem, wholly not to be with cases accord are a few There that Thus, Sanford, 865, 875, in State v. foregoing view. arguencDo conceded appears proof to be W. it 'light subsequent of and assets as affected value of a bank’s eight months after a was received and events six January, may competent be to show the failed fact date, competent named is not as evi insolvency on the last but knowledge insolvency. And State the defendant’s dence of Lewis, (2d) 536, says 20 S. W. c. l. c. l. the cir 323 Mo. liquidation a bank was still course of two and a cumstance that October, 1925, prove was years after it failed in tended to it half illegal when it closed. But condition both these an unsafe holdings conditions which would assume external affect the value of during substantially remained assets must have same the bank’s Considering rapid decline in meantime. the economic situa during year country period the two between this tion of depressing effect of the failure of a bank on 1930, and the known thereon, opinion in our community dependent it was unfair fix instant case to the value of the Willmathsville August, by showing only subsequent develop assets in Bank’s investigations year at indeterminate times ments and over the two words, standing following. alone, In period other as it does for the required. part, this evidence was not the kind of the law most gave IY. The trial court an Instruction No. 3 for the State if Bank jury they found the of Willmathsville which told the failed 29, 1928, prima August such failure facie evidence that failing bank was insolvent and circumstances when the say 24. The instruction was received on went on to “that degree probability is such that raises such a prima facie evidence prevail (italics ours). unless be that it must it rebutted” in its favor gave request instruction, of the State court another At No. presumption on the in the usual form innocence and at the re quest instruction, 13, saying of defendant still another No. that while