*1 upon 5th. is Error based fact permitted that the court deputy sheriff, iury while the was delihernhins' nnnn the verdict. inquire repeatedly they whether or not reached ver showing
dict. There is no record that this occurred. We cannot convict allegation the trial court error mere in the motion for new trial. Appellant
6th. complains further permitted that the trial court introduction in one-g'allon jugs wine, the two and the two bottles which deputy whisky, sheriff testified contained
the reason competent testimony any there was no' liquor of this was intoxicating. The admitted defendant wine, sugar that he made the added thеreto and left it deputy sheriff The testified sour. We take it as a it uncorked. knowledge that such under circum of common wine such matter stances, allegory soon ferment. The of the new would wine sheriff, accuracy. deputy not its bottles is without scientific old whisky. that the testified two bottles contained Wе take notice of whisky intoxicating. Pigg, supra.] fact is It is further the court 7th. insisted that should not have deputy sheriff to as to what did in the execution of warrant, the search for the reason sheriff’s return thereto is point best think evidence. is not well We taken and so hold. judgment
Por the above reasons the cоurt is affirmed. trial The foregoingopinion PER adopted CURIAM: Higbee, C., opinion as judges court. All of concur. (2d) Sr., Appellant. v. D. F. W. 147. 1 S. Walser, Two,
Division 1927. *3 Hunger Farris, & Ward <& Hunger, & Smith Zimmerman and appellant. Beeves for *5 Atwood n ,
North T. Gentry, and B. Assistant Smith Attorney-General, Attorney-General, respondent. for
DAVIS, grand jury C. Defendant was of Stoddard indicted County on charge than receiving, 19, 1923, more on December thirty dollars deposit in- knowing on in the Bank of it to be Puxico, solvent comprised and in a failing two condition. The indictment counts, the being put first of which trial dismissed, was to defendant on the second Dunklin changed count. On motion the venue was to County, being two had, resulting hung jury trials and the first in a the second in the conviction and a two defendant, sentence years in the penitentiary, from appeal perfected. which an was
Inasmuch as challenge defendant does not of evidence the want support unnecessary the judgment, it is to detail It the evidence. say sufficient to prosecution war- еvidence behalf of the finding Monday, rants the Bank that the of Puxico closed its doors on 24, December years previous 1923. For more than three defendant president years bank, succeeding to the office after 19, 1923, customer, as Page, service cashier. On December Dr. a deposited in bank, personally taking defendant a the deposit, check drawn in his favor on the Bank of On $295.85. Puxico for 22, Saturday, 1923, representatives of St. Louis banks met at the home defendant, ill, tentatively agreed who was and to loan Bank of $12,000 $30,000, advancing taking Puxico collateral security.
839 proof were, tlie for the defense tended to show that the sa.menotes of
sufficient value at the time of the failure of the bank to controverted, be collected in full. As the facts were insolvency issue a jury question. the of of the bank was permit a con testify witness to that the bank was insolvent was To the prоvince jury of and an invasion of of the as arbiter clusion the in instances, adequate the facts. While some conclusions for want of expression power yet of the non-prejudicial, have been held where clearly witness give upon can and correctly the facts which a cоnclu may based, sion be then it was draw for the the conclusion. to v. 225 Davis, S. W. In as to this instance the facts [State 707.] insolvency the bank knowledge of within witness were of the clearly expressed. and could be If were not within his knowl edge, the speculation. conclusion was mere this testi In instance the mony opinion prejudicial. our was
(b) The facts show that temporarily the bank closed on December 22, 1923, again opened but day upon tenta business on that agreement $30,000, actually tive of S*t. ad- banks to loan Louis
vancing, however, $12,000. was The same director meeting asked on cross-examinatiоn if of board Saturday, of directors was not held on agreed meeting present all bank solvent. was 1923, at which proper. inquiry very The character of the inquiry was was This opinion witness the bank of the was insolvent. from different pertinent tending inquiry as to show the of official was result depending, of of directors as to a matter then action the board bank. In the or solvency absence of evidence of fraud of bank, solvency part as concealment on defendant’s to tbe knowledge bank official action of the directors involved defendant’s receiving' the solvent on condition of the bank the occasion deposit. We think this evidence was admissible and defendant was entitled to benefit it.
(c) Special Deputy Bank Commissioner Gloriod was to testify to the fixtures, value the bank and when his asked about experience “Well, said. not verv much that he at neoessarilv
tended which a sale at fixtures of a closed were sold. further He testified he a visit made Shelby farm ascertain the value Countv at bank, spending there two or three hours county owned said day In of a at another. the matter of the part and a time one prior knowledge single as to values was limited to ex fixtures, his qualify him as value. casual ob which failed to perience, knowledge county based in a distant of values land servation of knowledge experience and intimate hearsay showed such want of While incompetent and valueless. to render the evidence values as nоn-expert competent witnesses may values, yet as to to render competent they them qualify experience must as to knowledge acquaintance from an intimate with conditions and values community in which property v. situated. Sattley, 131 41; Mo. 33 S. W. Sanford, S. W. 73.] We think testimony prejudicial.
(d)Witnesses for permitted the testify they State were to that had not collected belonging certain notes to bank. the This testi mony was erroneously admitted upon showing because there was no part
the of they the witnesses that a sufficient made effort to collect these notes. The evidence ivеnt no further tending than to show of that some the notes had been sent attorney an to for collection. The issue on which defendant was tried insolvency was the knowledge bank defendant’s it at the deposit. time of necessary develop the It was for the State to probative evidence as to both these facts. The fact that were notes not collected does not they tend to show that could not collected showing without as to effort the made to collect them. It was the say to upon development they of the facts whether ivere col- lectible or of no or little value. think preju- We- this evidence was dicial. (e)One by the notes held Bank the of Puxico was that of one president
Dooley, Drovers’ the National Bank of East St. Louis. npoIIao+ITyIo To show thft.f.tho noto WAS fho ft+n+o o -no-rml-H-or?In
develop
Dooley
bankrupt
that
in
became
the summer оf
1924, upon
permitted
which the witness was
to state the
Dooley’s bankruptcy
contents of
property.
schedule of
Dooley’s
by
shows that
The evidence
note was secured
Bank
National
stock.
It results that the
Drovers’
admission of this
testimony was
both because it failed to consider
value
errоneous,
the
bank stock and
bankruptcy
of the collateral
because the
schedules
Salmon,
were the best
of what
evidence
contained.
216 Mo.
(f)Witness representing Federal Krebs, the Reserve Bank of St. Louis, permitted by persons was to drawn checks the presented paid Bank оf Puxico which he for collection were not protested require he same. court to failed the State parties to show the who these checks had .drew money in bank an infef- to cover same. There at least in that the checks were refused because of insufficient the evidence ence by paid. presented witness Under Other checks funds. required the State should have to show funds these circumstances belonging pay to the drawers sufficient to the checks. by (g)The permitted prove Lufcy witness of what State was to bankruptcy into he went estate consisted at time defendant’s June, 1924. regard develop In required the State should be to
first ;assets satisfying defendant’s his and means of obligations closing, to the bank at the time of the closing tracing disposition his assets from the from bankruptcy, view of the inference of the bank to the time property defendant had turned over to the State’s evidence that was bank after it closed.
(h) permitted to Coókson The State was show witness market value of owned the bank certain notes customers insolvency. show know market The witness that he not stated did his notes, was state what in
value of the but opinion the notes would realizе. The State’s paper by collateral, was that some of this secured showed incorporate the value of propounded did not question as but the qualified speak witness was not think that security. doWe knowledge he had of respect of the notes. value with un *8 behind the notes. Before value of securities into consideration the the regard knowledge part, of testify in that the being permitted to of makers of the notes financial condition the of the the witness may jury intel particularity that the developed with such be should testimony. We do not think weigh probative value the ligently the financial condi witness as the sufficiently qualified the the State jury say what was for the makers of the notes. It tion of the development owned property from of the notes had a value the maker of the note. the giving in part court charges
II. of the Defendant error on 4. Instruction It is as follows: Bank of jury failure of
‘‘The instructs the that court in prima-facie was insolvent and Puxico that said bank is evidence failing eighteenth day December, 1923, circumstances on the defendant, president, prima-facie as its also evidence that insolvent bank was knowledge that said at said date failing instructs court and in circumstances. The degree of such a raises is such that prima-facie evidence that jury rebutted or unless it be prevail, that it must its value in probability contrary proved.” beyond far the instructions scope in its proceeds instruction This Lively, v. 573, and State 479, W. Buck, 120 Mo. S. in State found by this court. apprоved 76, which have 414, 279 S. W. 311 Mo. 3365, harmony with S'ection is not here criticised The instruction providing than goes no further section which Revised Statutes knowledge prima-facie be bank shall failure of the failing of the insolvent officer that the same was or in circumstances deposit. property money when thе or was received on The instruc- goes beyond tion jury that and informs the failure of statute prima-facie Bank Puxico is evidence that said was insolvent failing respect and in 1923. In circumstances on December necessary usurps jury, instruction the function of the it was for the to find that at de- jury the bank was insolvent the time of the posit adjudged guilty. before defendant could be It results that giving of the instruction for reason stated error. ’
III. charges Defendant is that Instruction 6 erroneous. goes instruction too far it shifts the burden to defendant solvency show bank, attending of the the circumstances any failure, tending or him fаct to exonerate from criminal liability. re should, upon retrial, This instruction vamped ruling Sanford, 297 to conform to thei State v. S. W. c. l. 78-79. complains
TY. Defendant his the court of modification acquittal 14. Instruction The instruction authorized defend if jury ant found from the time evidence that defendant at the depоsit
he received said “believed the said bank was sol “deposit” vent.” words Between the “believed” the good honestly.” “in is court added the words It faith honestly thing evident one cannot believe without synod arid in faith helievrne- it. Belief embodies 'the idea. good though honesty, faith and even one mistaken in his belief. good honestly” insertion the words “in faith in relation the word tautology, emphasized “believed” was and so “be word lieved” we think that, instruction intimated to the even thought defendant believed the to be solvent at the took time he *9 deposit, sincerity the court are doubted the his belief. We unwilling say in this cаse that the preju inserted words constituted dicial they but they surplusage should be eliminated error, because are prominently emphasize and because too the word “believed.” Y. The defendant offered an instruction which the court refused gave as offered, (No. 8a) but an which in fol instruction substance except lowed the instruction defendant, offered it eliminated -portion reading: the latter thereof “and further vou are instructed enough goes that it is not that the evidence in the case entirely to show his guilt, but such evidence must be supposition in inconsistent with reasonable of his strong, probabilities, however or Suspicions, nocence. justify a conviction, but will not be sufficient great, however positive, convincing, estab evidence, justify a conviction must be charge in the indict lishing guilty contained of the defendant so con beyond doubt, and unless the evidence reasonаble ment guilty whole you, must be returned.” vinces a verdict not approval has the sanction instruction as offered defendant Burl given jury. court and should to the have ingame, 146 W. Mo. S. 72.] assignments error, but remaining
VI. "We have considered we from what unnecessary think It follows comment thereon. lit re- judgment the causе said should reversed and have Higlee It concur. Henwgod, GC., manded. is so ordered. adopted foregoing opinion by Davis, C.,
PER CURIAM: The judges All opinion of court. concur. as the (2d) Thomas, W. 157. Appellant. v. John F. S.1 Two, Division 1927. notes the face $74,000 Upon value of as informa- about tion to St. Louis banks that the Bank of Puxiсo needed more than $30,000 aid, to tide it the St. Louis banks refused further result- over, ing Monday. following Bank of its Puxico closed doors capitalized The $25,000. for for the State was import permit sufficient to find that Dr. the time at Page deposit made the Bank of Puxico the defendant knew the failing bank was insolvent and circumstances. Further re- facts . lating will appropriately issues noted. discussed new trial cause was tried and motion for filed before S'ection 4079, as Laws we amended, page became effective.. Hence relegated applicable procedure obtaining. arе to the as heretofore exception (a) objection I. of defendant the court Over the State, bank, witness for director of proof went broke because it was insolvent. While value, little or no tended to show that certain notes were of
Notes
notes indefinite and of the makers financial condition questions answering did not take again, in he certain. Then