Bitting v. State
| Decision Date | 29 September 1927 |
| Docket Number | 5781. |
| Parties | BITTING v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The demurrer which asserts that section 28 of article 20 of the Banking Act of 1919 (Acts 1919, pp. 135, 219) is unconstitutional, because in violation of article 3, § 7 par. 8, of the Constitution, was properly overruled. The office of the caption of an act of the General Assembly is to call to the attention of the legislators in both the House and the Senate the scope and contents of the proposed legislation, and to inform them of the purposes sought to be accomplished. One paragraph of the caption, which declares that one of the purposes of the act is "to provide penalties for the violations of laws with reference to banking and the banking business," sufficiently complies with the constitutional requirement that no act shall contain matter different from what is expressed in the title.
While disqualification of a grand juror proper defectum may be good ground for quashing a criminal accusation preferred by the grand jury of which he was a member, mere disqualification of a grand juror propter affectum is not a good ground for a plea in abatement, and will not require the dismissal of the charge.
The exceptions contained in the first, second, third, fourth fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twenty-third grounds of the amendment to the motion for a new trial are not sustained. When pertinent and essential facts can be ascertained only by an examination of a large number of entries in books of account, an auditor or an expert accountant, who has made an examination and analysis of the books and figures, may testify as a witness and give summarized statements of what the books show as a result of his investigation, provided the books themselves are accessible to the court and the parties.
The court did not err in the admission of the testimony of which complaint is made in the thirteenth and fourteenth grounds of the motion for a new trial. A witness may give his opinion as to market value of notes or other property, and as to the solvency of a bank, after having stated the fact or facts upon which he bases his opinion. The weight to be given such opinion is a matter for the jury, who have power to disregard the reasons given.
The testimony to which objections were made as set forth in the seventeenth, eighteenth, nineteenth, and twentieth grounds of the motion was competent and admissible for the purpose of showing fraudulent mismanagement of the bank while the accused was in charge of its affairs.
The court did not err in rulings on admissibility of evidence as complained of in grounds 21 and 22 of the motion.
In grounds 24 and 24a of the motion it is recited that objections were made on the ground that certified copies, and not the originals, of the reports of the condition of the Bank of Commerce, should be offered in evidence. One of these papers was filled out by the defendant, and the other was signed by him. Even if these writings are office papers, they were nevertheless properly admitted evidence in this case, as admissions of the defendant on trial. Even if office papers being originals, they were admissible. Myers v. Wright, 158 Ga. 418 (3), 123 S.E. 740; Rogers v. Tillman, 72 Ga. 479.
The instructions of which complaint is made in grounds 25 and 32 of the motion are not erroneous for the reasons assigned, when the language of which complaint is made is construed in connection with other instructions upon the same subject; and they could not have misled the jury, when considered in connection with the charge as a whole.
The refusal of a written request for instructions is not error, when the subject is fully covered in the charge of the court as delivered.
The instruction of which complaint is made in ground 27 of the motion for a new trial is not subject to criticism as an expression of opinion on the part of the court.
The court did not err in instructing the jury as to the acts denounced in the Code as illegal. The court informed the jury, in the language of the Code, that certain acts to which some of the testimony adduced related were unlawful. The charge of the state and the defense of the accused necessarily put in issue the legality of various transactions detailed in the testimony. It was therefore proper that the jury should have been instructed whether any one or all of the acts, which the evidence indicated had been committed, were or were not in violation of law.
The evidence of the guilt of the defendant being largely, if not entirely, dependent on circumstantial evidence, it was not error to charge the jury:
When considered in connection with the charge of the court as a whole, the excerpt from the charge of which complaint is made in ground 30 of the motion for a new trial is not erroneous for any reason assigned.
While the proprieties would suggest that persons related to the prosecutor in a criminal case should not be brought in contact with the jury charged with the trial of such case, under any circumstances or at any time during the trial, still the fact of such contact will not require a new trial, when it affirmatively appears that there was no communication with regard to the case, or any hint or suggestion as to the result thereof, and that therefore no injury could have resulted to the accused.
One who accepts a juror, with knowledge that such juror is disqualified, waives the disqualification.
The evidence supported the verdict returned by the jury.
Error from Superior Court, Chattooga County; C. E. Roop, Judge.
N. K. Bitting was convicted as responsible for the fraudulent insolvency of a bank and he brings error. Affirmed.
J. M. Bellah and Wesley Shropshire, both of Summerville, and Maddox, Matthews & Owens, of Rome, for plaintiff in error.
J. F. Kelly, Sol. Gen., and Graham Wright, both of Rome, for the State.
N. K. Bitting was convicted as responsible for the fraudulent insolvency of a bank. Exceptions are taken to the overruling of his demurrer to the presentment, the dismissal of his plea in abatement, and the order overruling his motion for a new trial. The charge in the presentment is:
That the "said N. K. Bitting, on the 31st day of December in the year of our Lord nineteen hundred and twenty-four, in the county aforesaid, being then and there cashier and director of the Bank of Commerce, of Summerville, Georgia, in the county of Chattooga, said Bank of Commerce being a corporation and chartered under the laws of Georgia, and doing and carrying on a banking business, and as such officer and cashier and director of said corporation being by law charged with the fair and legal administration of its affairs, the said Bank of Commerce then and there, pending and during the official charge and responsibility of the said N. K. Bitting, did then and there be and become fraudulently insolvent, contrary to the laws of said state," etc.
The demurrer raised the point, not only that the presentment was insufficient as matter of law to charge any offense, but also that section 28 of the Banking Act of 1919 (Laws 1919, p. 135) is unconstitutional and void. The plea in abatement is based upon the proposition that certain grand jurors were incompetent by reason of their interest, because of relationship to sundry stockholders and depositors of the bank. The motion for new trial is based upon 39 assignments of error challenging the correctness of the lower court's rulings upon the admissibility of evidence, and various instructions contained in the charge of the court, as well as requests for instruction which the court refused to give, all of which will be dealt with more specifically hereafter.
1. It is alleged in the demurrer:
That section 28 of article 20 of the Act of the General Assembly of Georgia approved August 16, 1919, entitled "An act to regulate banking in the state of Georgia; to create the department of banking of the state of Georgia; to provide for the incorporation of banks, and the amendment, renewal and surrender of charters; to provide penalties for the violations of laws with reference to banking and the banking business; and for other purposes," "upon which the special presentment against this defendant in this case is based, is unconstitutional, null, and void, for the reason that it violates the provisions of the Constitution of the state of Georgia contained in article 3, section 7, paragraph 8, thereof, in that it contains matter different from what is expressed in the title of said act, and especially that the title of said act makes no reference whatever to the enactment of any statute creating or constituting criminal offenses, or with reference to setting up any rules of evidence to be applied upon the trial of any case involving a violation of any criminal offense purported to be set up therein."
Apparently the language of the caption itself refutes the contention of the plaintiff in error, for it would seem that by any reasonable rule of construction that portion of the caption which states that the proposed act is "to provide penalties for the violations of laws with reference to banking and the banking business" is ample to have...
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