Browning v. State
| Decision Date | 04 March 1931 |
| Citation | 101 Fla. 1051,133 So. 847 |
| Parties | BROWNING v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Martin County; Elwyn Thomas, Judge.
George H. Browning was convicted of violating a statute denouncing making of excessive loans by bank to its directors, and he brings error.
Reversed.
Syllabus by the Court.
An indictment under section 7959, Comp. Gen. Laws 1927, for the violation of the provisions of section 6083, Comp. Gen. Laws 1927, prohibiting a bank from loaning to any director of the bank an amount exceeding a certain per cent. of the aggregate capital and surplus, is not defective because it alleges that the accused was a director of the bank and as such made the loan to himself.
A corporation can act only through its officers and agents. When one as a director of a bank obtains a loan from the bank beyond the amount which the law allows to be loaned by the bank to a director, he violates the provisions of section 7959, Comp. Gen. Laws 1927.
An indictment under section 7959, Comp. Gen. Laws 1927 sufficiently charges the offense denounced which alleges that the accused, as a director of the bank, procured a loan from it of 'money, funds and credits' of an amount exceeding the limit allowed by law.
An indictment charging one with a violation of the offense denounced by section 7959, Comp. Gen. Laws 1927, is not defective because it fails to allege that the unlawful loan was obtained or made without the consent of the board of directors.
Material allegations in an indictment must be proved as alleged.
Evidence examined, and found insufficient to support the verdict.
T. W. Conely, Jr., of Okeechobee, L. W. Jennings of Jacksonville, and Blackwell, Donnell & Moore, of West Palm Beach, for plaintiff in error.
Fred H Davis, Atty. Gen., and H. E. Carter, Asst. Atty. Gen., for the State.
George H. Browning, John E. Taylor, and Warner B. Tilton were indicted by the grand jury of Martin county for the offense denounced by sections 6083, 7959 of the Compiled General Laws of Florida 1927. Section 6083, supra, declares it to be unlawful for any bank organized under the laws of this state and doing business in this state to loan directly or indirectly an amount exceeding 10 per cent. of the aggregate capital and surplus of the bank to any director of the bank or to any copartnership or corporation in which the director may be interested without consent of the directors of the bank to be entered in the minutes in writing; that no loan shall be made to any director unless the same be first approved by the board of directors of the bank; and that whenever the board shall determine by a majority vote to be entered on the minutes of the board that the loans applied for are entirely satisfactory, that the capital of the bank in unimpaired, and the conditions of the bank are otherwise such as to warrant the loan and it can be made without reducing the legal reserve, the limitations provided by the section may be extended in such cases to 40 per cent. of the capital and surplus subject to all the other restrictions provided by the law.
Section 7959, supra, denounces as a felony the violation of any of the provisions of section 6083, supra, by any banker, officer, or director of any bank organized and doing business in this state.
The indictment charged that the Seminole Bank of Stuart, Fla., was a banking corporation organized under the laws of this state and doing business in this state; that Browning, Taylor, and Tilton were directors of the bank on February 22, 1929; that Browning on that date was indebted to the bank for loans made to him prior thereto by the bank in the sum of $33,800, and on that date Taylor, Tilton, and Browning made a further loan to Browning in the sum of $674.24 of the money, funds, and credits of the bank, the property of the bank; and that the last loan, together with the amount Browning was already indebted to the bank, exceeded 40 per cent. of the aggregate capital and surplus of the bank which amounted to $55,000.
The indictment was attacked unsuccessfully by a motion to quash. The defendants were placed on trial. The jury returned a verdict of guilty as to Browning and acquitted Taylor and Tilton. A motion in arrest of judgment offered in behalf of Browning was overruled and judgment and sentence entered against him. He seeks reversal of the judgment on writ of error.
It is contended that the indictment is fatally defective because it fails to allege with sufficient clearness that the bank made the loan, but, on the contrary, the indictment seems to charge that Browning made the loan to himself. The point is presented by the motion to quash and the motion in arrest of judgment.
The indictment is sufficient in its terms to charge that Browning as a director of the bank procured loans to himself of the bank's funds in excess of 40 per cent. of the bank's capital and surplus. His act as a member of the board of directors in making a loan of the bank's funds and property was the act of the bank for which as a director of the bank he is liable under the provisions of section 7959, supra. It is a mere play on words to say that he made a loan to himself. He violated the law in accepting a loan from the bank as a director when the loans for which he was indebted amounted to more than 40 per cent. of the bank's capital and surplus. It is immaterial that he participated in the meeting of the directors when the loan was procured. As a director of the bank by procuring and accepting the loan he violated the trust reposed in him as an officer of the bank and ignored his duty at which the law aims its penalty.
It is idle to talk of a man loaning his own money to himself. His offense consisted in procuring from the bank a loan of its funds to himself in the amount charged while occupying the position of trust as a bank director.
A corporation can act only through its officers and agents, therefore when he as a director obtained the loan he violated the provisions of section 7959, supra, in that in his capacity as director he caused the bank to violate the provisions of section 6083, supra.
It is impossible for one not an officer of the bank, to lend the bank's funds within the meaning of the statute prohibiting a bank from loaning its funds to an officer beyond a certain percentage of its capital. We do not agree with counsel that the indictment is uncertain and tended to mislead the accused and embarrass him in his defense.
It is clear that before Browning procured the last loan of $674.24 he was already indebted to the bank in the sum of $33,850 for other loans obtained by him, so that he...
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