Brown v. State

• Decision Date: 27 June 1913
• Citation: 162 S.W. 339
• Parties: BROWN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 339

162 S.W. 339

BROWN v.STATE.

Court of Criminal Appeals of Texas.

June 27, 1913.

On Rehearing, December 17, 1913.

Appeal from District Court, Bastrop County; Ed R. Sinks, Judge.

E. F. Brown was convicted as a private banker of receiving deposits with knowledge of his insolvency and the insolvency of the bank, and he appeals.Reversed and remanded.

Orgain & Maynard and Paul D. Page, all of Bastrop, W. G. Love, of Houston, and W. F. Ramsey, of Austin, for appellant.C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted, convicted, and sentenced to two years in the penitentiary under the following indictment, omitting the formal parts: "That in said county of Bastrop, and state of Texas, on or about the 3d day of February, A.D. 1912, and before the presentment of this indictment, E. F. Brown, did then and there unlawfully assent to the reception of a deposit of money in the sum of fifty dollars, current money of the United States, of the value of fifty dollars, from and by A.De Glandon, Sr., which said amount of money was placed to the open deposit account of and subject to the check of A.De Glandon, Sr., in and upon the books of the McDade Exchange Bank, into the McDade Exchange Bank, unincorporated, of McDade, Bastrop county, Tex., the said the McDade Exchange Bank then and there being and was a private bank; the said E. F. Brown then and there being the owner of said the McDade Exchange Bank, and the said the McDade Exchange Bank and the said owner of said bank then and there being and were insolvent and in failing circumstances; and the said E. F. Brown at the time of the reception of said deposit as aforesaid, then and there knew and had knowledge that said bank and the said owner of said bank were insolvent and in failing circumstances.Against the peace and dignity of the state."

Appellant filed a motion to quash the indictment on several grounds; the first being that, while the indictment alleged that the bank was a private bank, yet it failed to allege the names of the persons composing the bank.A reference to the indictment will disclose that the indictment not only alleged that it was an unincorporated private bank, but also alleged that appellant was the owner of the bank, and the indictment also alleges not only that the bank was insolvent, but also alleges the insolvency of appellant, the owner of the bank.We have carefully read and considered each ground in the motion to quash, and are of the opinion none of them are well taken.We think the indictment sufficiently and plainly alleges, in accordance with the provisions of article 532 of the Penal Code, the offense denounced by this statute against a private bank or banker.

H. W. Freeman testified: "I was cashier of the McDade Exchange Bank on February 3, 1912.I do not recollect receiving a deposit from A.De Glandon, Sr. (Being shown the deposit slip offered in evidence showing a deposit of $50 by A.De Glandon, Sr., on February 3, 1912, the witness said:)Yes, sir; I wrote this.That is my signature.From the evidence I would say that I did receive a deposit of $50 on that day; the evidence shows it.I suppose I entered that on the books on the individual ledger of the McDade Exchange Bank to the credit of A.De Glandon, Sr. (Being shown entry on the books of the McDade Exchange Bank, the witness said:) I think this is the individual ledger of the McDade Exchange Bank.Q.Now I will ask you were those books kept correctly?A.I could not say.I kept them, Yes, sir; I did not enter a credit to A.De Glandon, Sr., for $50 February 3, 1912, on the individual ledger of said bank.I did not do that.That entry is in the handwriting of N. K. Freeman.That indicates that he deposited $50, but I did not make the entry.I kept the books generally, but these entries were made at Houston at Mr. Christian's office after the bank closed.N. K. Freeman made that entry; I had nothing to do with keeping the books at that time.The books were in Houston when that entry was made.On the 3d day of February the books were at the bank, but we were behind with our business in posting up when the bank was closed, and the papers were sent down to Mr. Christian's office at his request, and he had Mr. Freeman to make the entry.The way I know that Mr. Freeman made that entry is that is his writing; I can tell his figures, and he said he made it.That is the way I know it.I wrote the name A.De Glandon, Sr., in that individual ledger there, but I did not put those figures there (indicating).I put the figures January 30, 31, 1912.I put them there, but did not put February 3, 1912.This deposit was received as an open deposit subject to check.It was not placed on the books because we were behind with our posting.That deposit was not entered in any other book.These deposits were not entered anywhere except in the individual ledger.I kept a duplicate of the deposit slip. (Being shown the books, the witness said:) Yes, sir; that is the book of the McDade Exchange Bank.It was in my custody until it was turned over to Mr. Christian.My understanding is that Mr. Christian is trustee in the Brown estate.That bank was an unincorporated bank; I suppose, you would call it a private bank, I don't know.It was an unincorporated bank.Q.Mr. Freeman, who was the owner of that bank.A.Mr. Brown was, I suppose.As to who employed me, Mr. N. K. Freeman secured me the employment.Q.In whose employ were you?A.I suppose, Mr. Brown.Q. Didn't you know you were in Mr. Brown's employ?A.I never saw Mr. Brown for three years.Q.What did he say after you saw him?Did he hold himself out to you as being the owner?A.That was the supposition that he was the owner.Q.I mean when you saw defendanthe held himself out to you as the owner of the bank?A.Yes, sir; he seemed to talk that way.The bank closed its doors on the 6th of February.I did not hear of anybody else owning that bank.I didn't hear of anybody else being interested in that bank beside Mr. Brown—not that I recollect of.I made Mr. Brown reports of the condition of the McDade Exchange Bank occasionally.As to how often I would make these reports sometimes every day, and sometimes not for a month or two weeks.The kind of reports I would make him would be just a copy of the book there.I did not make a report from the individual ledger, but from the other ledger; the other ledger shows the resources and liabilities of the bank.This is called the general ledger.I reported the resources and liabilities shown by the book there.At the time the McDade Exchange Bank closed its doors, it owed its depositors about $20,000.As to how much time deposits it owed, I think about $1,300.I am not positive about that; I can tell from the books.As to how much money I had on hand, I can tell that from the books.I can tell from the general ledger.That is the general ledger of the McDade Exchange Bank which shows the liabilities and resources of the bank.The entries in this book on the 2d, 3d, and 5th were made by N. K. Freeman.The last day that I made an entry in that book was January 30th and 31st, and it shows that I had on hand January 30th and 31st $1,158.53 in the vault and due from other banks $9,625.10.On January 27th and 29th there was $1,383.43 in the vault and $10,101.88 due from other banks.I do not know what the capital stock of that bank was.Before that book (the general ledger) was sent to Houston to Mr. Christian, it was there in the bank building at McDade in my custody.Q.Was the book properly kept up to the time that you sent it to Houston?A.Yes, as correct as I could keep it."

A.De Glandon, Sr., testified to making a deposit of $50 at the time stated by Mr. Freeman.This testimony was objected to on the ground that the transaction took place in the absence of the defendant and would not be binding on him.The record discloses that appellant established the McDade Exchange Bank, and that he was the sole owner of the bank.When he opened this bank, he did so for the purpose of doing a banking business, the element of a banking business being the reception of deposits from its patrons and the public generally, and when he established this business, placed men in charge of it, had reports mailed to him, it would be immaterial whether or not he ever visited the bank again; he in law would be held to have given his assent to all steps necessary and proper in the conducting of a banking business at McDade, and, as this bank was opened by him and a part of its business at least was to solicit and receive deposits, he would be held to have given his assent to each and every deposit received by the bank, including the deposit received from Mr. De Glandon, Sr.

The receiving of deposits is a necessary incident to a legitimate banking business, and when appellant established the bank and opened it for business, placing his agents and employés in charge, to do a banking business, he will in law be held to have given his assent to each and every act within the scope of business authorized by him to be done by his agents and employés.

When Cashier Freeman had testified he kept the books of the bank and they were correctly kept, it was legitimate for the state to show by the witness, refreshing his memory from the books so kept by him, the amount, character, and value of the resources of the McDade Exchange Bank, and the debts and liabilities of the bank on the date it closed its doors.

Several objections were urged to the testimony of State Banking Commissioner Gill.Appellant owned the Paige State Bank as well as the McDade Exchange Bank, and, as it was necessary to show the insolvency of appellant at the time of the failure of the McDade Exchange Bank as well as the insolvency of the bank, it was perfectly legitimate to show whether or not the Paige State Bank was at that time insolvent, and the value of all properties owned by appellant, his debts and...