7 Ga. App. 101 | Ga. Ct. App. | 1909
The plaintiff in error was charged by special presentment with the “offense of a felony, for that the said George B. Youmans, on the twenty-third day of November, in the year of our Lord, one thousand nine hundred and seven, in the county aforesaid, with force and arms and unlawfully, being then and there the president of the Bank of Wayeross, a chartered bank incorporated under the laws of said State, and, as -such officer of said chartered bank, he being by law charged with the fair and legal administration of its .affairs, the said Bank' of Wayeross, then and there pending and during the said official charge and responsibility of the said George B. Youmans, did then and there be and become fraudulently insolvent, contrary to the laws of said State, the good order, peace and dignity thereof.” The defendant demurred to the-indictment as being- insufficient, and his demurrer was overruled. Bailing to have the presentment quashed upon demurrer (which would have effected a final disposition of the case), he excepts to the judgment overruling his demurrer. , There are sixteen grounds of the demurrer, but these grounds are treated in the brief of plain
1. The stress of the argument of learned counsel for the plaintiff in error is principally addressed to the point that the provisions of §306 of the Penal Code apply only to banks of issue. It is sought to support the argument to this effect by a consideration of the origin of the statute now embodied in §306 of the Penal Code, and a view of the conditions then existing, as illustrative of the legislature’s intention. The learned counsel for the plaintiff in error urge with much force that at the time the act of 1833 was passed, nearly all, if not all the banks of this State, were banks of issue; and it is true that most of the decisions of the Supreme Court upon this and kindred subjects deal with banks of issue. As we now have no banks of issue, it is contended that §306 has become obsolete, if indeed it is not completely .repealed by the passage of the acts of 1893 and 1898. We are unable to concur in this view. . While that construction of a statute is to be preferred which will preserve all the parts of the enactment under consideration, it is nevertheless a cardinal rule of construction that the legislative intent shall be effectuated, even though some of the verbiage of an enactment may have to be eliminated from the text. We
We conceive that the purpose of the act was to throw the very strongest possible safeguard around the rights and interests of those dealing with banks, as well as the public generally, and that it was the intention of the legislature to state not merely one condition of affairs upon this point which would raise the presumption that a crime had been committed in the management of the bank, but two, — either insolvency or failure to redeem its bills. And this is nothing new in criminal statutes. It has come to be a fixed rule that where a crime can be committed in more ways than one, .the defendant must be informed of the manner in which he is charged to have committed the offense named.
The acts of 1893 and 1898 had no effect upon §206 of the Penal Code! Pepeáis by implication are not favored. But there is nothing from which it can be implied that there was any intention on the part of the legislature, in the passage of the acts of 1893 and 1898, to change the subject-matter of §206 of the Penal Code. The only criminal penalty imposed by the act of 1893 (Acts of 1893, p. 70) is directed to violations of the 6th, 20th, and 21st sections of the act. These sections, of course, apply only to those banks that may see proper to avail themselves of the privilege of issuing bills, and, even as to such banks, would not cover either a fraudulent insolvency or a failure to redeem bills, considered as crimes. Consequently the act of 1893 can not be said1 to trench upon the territory covered by so much of the act of 1833 as is n,ow §206 of the Penal Code. The act of 1898 ( Acts of 189.8, p. 73 et seq.) was merely an attempt to give force to the previous enactment of 1893; and the only penal liability imposed in this act was as to the governor, the treasurer, and the comptroller-general. Certainly there is nothing in these acts that could be said, even by
2. The demurrer attacks the presentment upon the ground that §206 has been repealed by the constitution of 1868 and the constitution of 1877, prohibiting imprisonment for debt. We see nothing in this point, for the reason that it is not debt, but fraudulent conduct, which the statute seeks to punish. The president or director whose mismanagement is alleged to have brought about the insolvency of the bank may be perfectly solvent personally, or he may be insolvent. It would not matter which. It is the insolvency of the bank, and not of the director, which is in question, and whether that insolvency was caused by his fraudulent act, not in the conduct of his own business, but in violation of his trust as a fiduciary. And such a director, if punished because he was unable to rebut the presumption by showing that he had done his duty in the conduct of the bank’s affairs, would not be punished for debt (especially not for his individual debt), but for a felonious fraud. The principle is clearly stated in Lamar v. State, 120 Ga. 312 (47 S. E. 958), where, in upholding the act of August 15, 1903, in
The undertaking of a bank to refund to depositors or to pay their indebtedness is a mere contract. Failure to perform such a" contract can not be penalized, but it is certainly within the power of the General AssembA, under the decision in the Lamar case, supra, to penalize a fraudulent practice whereby not only may the bank be rendered unable to perform its contract, but, as a result thereof, great distress may be caused to those who trusted in its solvency and proper management. The bank’s insolvency itself would constitute no crime, if it appeared upon the trial that there was an honest failure; but if fraudulent practices were the .cause of the bank’s insolvency, they can be punished, and should be. In Banks v. State, 124 Ga. 15 (52 S. E. 74, 2 L. R. A. (N. S.) 1007), it was held that “the purpose of the act of 1903, as indicated on its face, is to make criminal and punish certain fraudulent practices, not to enforce imprisonment for debt; and it is not in conflict with the provision of the constitution which declares that there shall he no imprisonment for debt.” In the Banlcs ease precisely the same question was raised as to the “labor-contract act” of 1903 (Acts
3. One of the strongest grounds presented by the demurrer, and one ably argued by counsel for the plaintiff in error in their brief, deals with the presumption,,arising from mere proof of insolvency of the bank, that the insolvency was caused by fraudulent practice on the part of its president or directors. The same question was presented in the Banks ease, supra, where it was raised as a constitutional question. In discussing this phase in the Banks case, Judge Lumpkin says, as to the second section of the act of 1903 (which declares that satisfactory proof of the contract, the procuring thereon of money or other thing of value, the failure to perform the services so contracted for, or failure to return the money so advanced, etc., shall be presumptive evidence of the fraudulent intent): “This is not an assumption of Judicial functions by the legislature. It declares a rule of evidence under which certain acts are deemed presumptive evidence of a fraudulent intent in committing them. The legislature has power to establish rules of evidence.” And after reciting a number of instances which afford the basis for presumptions, both in civil and criminal cases,'
4. Several grounds of the demurrer may be summarized under one head, though each alike presents the contention that the presentment is fatally defective under any circumstances. We think that the indictment properly charges “fraudulently insolvency.” It is an insolvency which has resulted from fraud and was brought about by fraud. An insolvency which has not originated in fraud can not afford a basis for a conviction. It is true that the statute says the insolvency shall be deemed fraudulent; and it is only insolvency that the State is required to prove in making a prima facie case, — that is, insolvency being shown, and nothing more, it is presumed that the insolvency was fraudulent, because it ought to be presumed that if there was no fraud there would be no insolvency. But as fraudulent insolvency alone is punishable, it devolves upon the State, in making a charge, to allege it is such. Upon the proof, insolvency, aided by the statutory presumption which has been
In construing §929 of the Penal Code, in the case of Amorous v. State, 1 Ga. App. 313 (57 S. E. 1000), we said, “it means that an indictment conforming substantially to its requirements will be sufficient, but it is not designed to deny the one accused of crime the right to know enough of the particular facts constituting the alleged offense to be able to prepare for trial.” It is true, -as stated by counsel for the plaintiff in error, that “there are many offenses that can be stated in the language of the code, such as playing cards, selling liquor, or carrying a pistol concealed; there are many other offenses that would not be sufficiently charged if stated merely in the language of the code, such as murder, larceny, perjury, etc. A description of these latter offenses or a description of what the defendant did is necessary to make a legal charge, and to enable the defendant to prepare a defense.” A distinction is to be drawn between charges which are violations of purely statutory offenses and those cases which were penalized under the common law. Naturally, where the offense is statutory, the language of the accusation must follow more closely the language of the statute, and be restricted by it more, than where the charge relates to a common-law offense, in which the details must necessarily be amplified in order to cover the definition of the common law offense. Reference is made to this difference in United States v. Simmons, 96 U. S. 360 (24 L. ed. 819), in which the court said: “Where the offense is-purely statutory, having no relation to the common law, it is, as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter.” “But to this general rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense.” “An indictment not so framed is defective, although it may follow the language of the statute.” All