Cabaniss v. State
| Decision Date | 14 June 1910 |
| Docket Number | 2,252. |
| Citation | 68 S.E. 849,8 Ga.App. 129 |
| Parties | CABANISS v. STATE. |
| Court | Georgia Court of Appeals |
On Rehearing, September 6, 1910.
Syllabus by the Court.
Prima facie, a person charged with a misdemeanor suffers no prejudice from having his case tried as if it were a felony provided the court sentences him as for a misdemeanor.
The offense of a president or director of a bank declaring a dividend from funds of the bank other than the legitimate profits is a several rather than a joint offense; and, in an indictment against the president or one of the directors, it is not necessary to set out the names of other directors not indicted, though they may have participated in the declaration of the dividend.
It is criminal for the president and directors of a bank to declare a dividend from funds other than profits, whether the bank in question be a bank of issue or not.
The alleged disqualification of grand jurors propter affectum is not valid ground for plea in abatement to an indictment.
The fact that there is another indictment pending in court against the defendant charging him with the same offense affords no ground for plea in abatement.
It is no ground for quashing an indictment that the oath was administered to the regular grand jurors, who served during the term, by a judge of the superior court who happened to be disqualified from trying the case arising on the particular indictment.
The evidence shows, practically without dispute, that during the defendant's incumbency as president of a bank it suffered losses through taking papers that proved to be insolvent and worthless; that these bad debts and worthless papers were not charged off, but were allowed to accumulate until they were sufficient not only to offset all surplus and undivided profits, but also seriously to impair the original capital of the institution; that while this state of affairs existed and at a time when the defendant in all human probability knew it existed, he joined with the board of directors in declaring a dividend. Held that, irrespective of the defendant's motives in the matter, the transaction was a violation of the penal statutes of this state, and that these main facts are so strongly established as to preclude the granting of a new trial for slight errors in the admission or rejection of testimony relating to collateral issues.
It is not sufficient ground for new trial that the court caused a disqualified juror to be put upon the defendant, where it appears that the juror was stricken, especially where it does not appear that the defendant was thereby caused to exhaust his peremptory challenges.
In a criminal case it is ground of challenge that a juror is over 60 years of age. If the fact is known in advance, the right of challenge is waived by his being accepted as a juror. But if the fact of his being over age is discovered after he has gone into the box, but before the state has begun the introduction of testimony, either party may call the attention of the court to the matter, and it thereupon becomes the duty of the court to cause him to be removed from the jury.
In the prosecution of a bank president for illegally declaring a dividend on a given date, evidence going to show that the conditions which made the declaration of the dividend illegal had existed for some time prior thereto is relevant, as tending to establish the condition of the bank's affairs on the day in question, as well as to show the president's opportunities for knowledge of these conditions. Proof of the fact that while this condition of affairs was in existence prior dividends had been declared is relevant, as showing that the profits of the bank, instead of having been used to restore the bank to such a condition as would justify the declaration of a dividend, had been distributed to the stockholders.
Though the charter and by-laws of a bank may be the highest evidence as to who should control its affairs, yet it is competent for a witness to testify that a designated person in fact controlled it; that is, had personal charge and direction of its business and affairs.
Whether a party shall be allowed to ask a witness a leading question is a matter addressed solely to the discretion of the trial judge.
Where only the existence or identification of documentary evidence is involved, or where the contents of the writing is not the thing material to the inquiry, it is permissible for a witness to refer to the papers in question and to describe them in a general way.
Where facts can be ascertained only by an examination of a large number of details on books of account, it is permissible for an expert accountant, who has made an examination of the books and figures, to testify as a witness and to give a summarized statement of what the books show, provided the books themselves are made accessible to the court and to the parties. Moreover, any error in the admission of evidence of this kind is cured where the books themselves are introduced in evidence, and it is admitted that they show the same facts testified to by the witness.
Though the court may have been guilty of abstract error in refusing to allow the defendant's counsel to ask the state's witnesses, especially the expert accountants, as to how long it would have taken the defendant to have ascertained the bank's condition by an examination of the bank's books, still, under all the facts of the case, the error was immaterial and not of sufficient importance to justify the granting of a new trial.
There was no error in the court's allowing one witness to testify as to the correctness of a list of insolvent papers carried among the bank's assets (though he was ignorant of the fact of the solvency or insolvency of the papers), and in allowing another witness, who could not swear to the correctness of the list, to testify as to the solvency or insolvency of the particular papers mentioned. The testimony thus connected was admissible.
Solvency or insolvency is a matter admitting of opinion evidence under the general rules on that subject.
There was no error in admitting the correspondence referred to in the eighteenth division of the opinion.
There was no error in admitting in evidence the books of the bank.
Colloquies between court and counsel as to the validity of objections to evidence do not usually afford cause for new trial. The incident complained of in the present case, as explained by the trial judge, falls within the general rule.
The testimony as to the transactions had with the bank by an alleged partnership was admissible in connection with other testimony, which, while disputed, tended to show that the defendant was a member of that partnership.
The action of the trial judge in overruling defendant's motion for a continuance in the light of all the circumstances does not warrant the grant of a new trial by this court.
Even if it be valid ground for plea in abatement to an indictment that a qualified grand juror was discharged from the body the fact that he was not for some cause disqualified or otherwise entitled to be relieved from service must affirmatively appear. Especially is this true where 18 qualified grand jurors remain after the juror in question had been excused.
No sufficient cause for the granting of a new trial appears.
Error from Superior Court, Bibb County; U. V. Whipple, Judge.
J. W. Cabaniss was convicted of declaring a dividend out of funds of a bank other than profits thereof, and he brings error. Affirmed.
Jos. Hill Hall, W. D. Nottingham, Roland Ellis, M. Felton Hatcher, Warren Roberts, Custis Nottingham, and Henry C. Peeples, for plaintiff in error.
W. J. Grace, Sol. Gen., and T. S. Felder, for the State.
It will be necessary to extend this opinion to an unusual length in order to cover the case as presented in this court. The record contains about 400 pages of typewritten matter. Nevertheless we will attempt to deal with the case as briefly as is possible with due regard to the number of points presented and their importance. The indictment (omitting the formal parts) charges:
To this indictment the defendant filed a demurrer, presenting in substance the following grounds: That the indictment fails to allege that the Exchange Bank of Macon was a bank of...
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