Carr v. State

• Decision Date: 09 August 1894
• Docket Number: 242.
• Citation: 16 So. 150,104 Ala. 4
• Parties: CARR v. STATE.
• Court: Alabama Supreme Court

16 So. 150

104 Ala. 4

CARR v. STATE.

No. 242.

Supreme Court of Alabama

August 9, 1894

Appeal from district court, Colbert county; W. P. Chitwood, Judge.

Hinton E. Carr was convicted of receiving a deposit, knowing his bank to be insolvent, and appeals. Reversed.

The appellant was tried and convicted under the following indictment: "The grand jury of said county charges that before the finding of this indictment, Hinton E. Carr, who was at the time the president of the Tuscumbia Banking Company, a banking firm engaged in a banking business received from Robert T. Abernathy, for deposit, three hundred and fifty-five dollars, lawful money currency of the United States of America, a more particular description of said money being unknown to the grand jury, and the said Hinton E Carr knew at the time said deposit was received, or had good cause to believe, that said banking firm was in a failing or insolvent condition. And the grand jury of said county further charge that, before the finding of this indictment Hinton E. Carr, who was at the time a member of the firm styled the Tuscumbia Banking Company, a partnership composed of Hinton E. Carr and Emma Carr, which firm or partnership was engaged in the banking business, received for deposit from Robert T. Abernathy three hundred and fifty-five dollars, lawful money, currency of the United States of America, a more particular description of said money being unknown to the grand jury; and the said Hinton E. Carr knew at the time said deposit was received, or had good cause to believe, that the said firm or partnership was in a failing or insolvent condition,-against the peace," etc.

The defendant pleaded the following plea in abatement "Comes the defendant, Hinton E. Carr, and pleads to the jurisdiction of the court in this cause, and objects to his being put upon his trial, because he says that he was on the 7th day of August, 1893, and previous thereto, in the state of Iowa, and had gone there for the purpose and intent of making his home in said state; that while there he was arrested, and was, by order of the governor of said state, extradited to the state of Alabama for the charge of embezzlement, and not for the offense set out in the indictment in this cause, which original warrant of extradition issued by said governor of the state of Iowa is made a part of this plea. And he alleges that he was a resident of said state of Iowa when said warrant of extradition was granted, wherefore he prays that said indictment be abated, and he further prays that he be not placed upon trial upon the same. He further pleads to the jurisdiction of this court in the premises, and he insists and pleads that he can be only tried for the offense upon which he was extradited, and he alleges and states that he was not extradited for the offense as charged herein." To this plea the state replied that after the defendant was brought to the state of Alabama the indictment in the present case was found by the grand jury of Colbert county, Ala., and the defendant was arrested in the state of Alabama upon the writ of arrest issued upon said indictment, and, further, that because the defendant was extradited for one offense does not preclude his prosecution for any other offense the defendant may have committed in this state. The plea in abatement was overruled and disallowed, and the defendant then demurred to the indictment; and upon the demurrer being overruled the defendant moved the court for a continuance on the ground that he had been extradited for an offense different from the one for which he was now indicted, and was therefore taken by surprise, and had not had an opportunity to prepare a defense to the present indictment, which he could do if the continuance was granted, and time allowed him, and that he had a good and valid defense to the present prosecution. The court overruled this motion for a continuance, and the defendant duly excepted.

On impaneling the jury for the trial of the defendant, the court asked the usual questions as to qualification. The defendant, by leave of the court, examined one August Neff, who said he had been a witness before the grand jury in a similar case to this, and had a like case now pending in the same court against the defendant, and believed that the defendant was guilty in the case in which he was a witness. The defendant objected to the juror as being incompetent, and challenged him for cause. The court overruled the objection, and, putting the juror upon the defendant, he challenged him peremptorily. To this action of the court the defendant duly excepted. "The defendant then asked the court leave to examine any juror upon his voir dire as to his fixed opinion, and to show if he had a like case pending in this court and against this defendant." The court refused to allow defendant to put the jurors upon their voir dire, and the defendant duly excepted.

The testimony for the state tended to show that one R. T. Abernathy, Jr., had, at the direction of his father, deposited in the Tuscumbia Banking Company, a firm composed of the defendant and his wife, $355; that Birt Harrington was the assistant cashier, and received the money, and that the money had never been paid back to the said R. T. Abernathy, Sr.; that the bank failed June 8, 1893, a short time after the deposit of said amount was made, which was on May 5, 1893. The defendant moved to exclude this testimony on the ground that it showed the deposit was made with the Tuscumbia Banking Company, and not with the defendant, as charged in the indictment. This testimony was overruled, and the defendant duly excepted. The state also introduced evidence tending to show that the said Birt Harrington was regularly employed as assistant cashier of the Tuscumbia Banking Company and has authority to receive deposits. The other facts are sufficiently stated in the opinion.

The court, at the request of the state, gave to the jury the following written charges: (1) "If the jury believe from the evidence that the defendant was, on the 5th day of May 1893, engaged in a banking business in Colbert county, Alabama, under the firm name and style of Tuscumbia Banking Company, and that the said banking company was a partnership composed of the defendant and his wife, Emma Carr, and that the said banking company was at said time insolvent, or in a failing condition, and defendant knew or has good cause to believe it, and employed Birt Harrington to act as assistant cashier of the bank, and made it his duty to receive deposits, and that he (Harrington) did receive $355 from R. T. Abernathy on deposit on the 5th day of May, 1893, then you should find the defendant guilty." (2) "If the jury believe from the evidence that the Tuscumbia Banking Company, composed of defendant and his wife, were on the 5th of May, 1893, doing a banking business, that said Tuscumbia Banking Company had in its employ Birt Harrington, whose duty it was to receive deposits, and believe further that said Tuscumbia Banking Company was on the 5th day of May, 1893, in a failing or insolvent condition, and that defendant knew or had good cause to believe it was in a failing or insolvent condition, and further believe that on the 5th day of May, 1893, Birt Harrington, in the employ of defendant, received from R. T. Abernathy $355 on deposit, then the jury should find the defendant guilty as charged in the indictment." To the giving of each of these charges the defendant separately excepted, and likewise separately excepted to the court's refusal to give each of the following charges, requested by him in writing: (2) "If the jury believe from the evidence that Birt Harrington received the deposit from Abernathy without instructions from Carr, then they must find for the defendant." (3) "Unless the jury are satisfied, beyond a reasonable doubt, from the evidence, that Carr authorized or directed Harrington, or had knowledge of Harrington receiving the deposit made by Abernathy, then they must find for the defendant." (5) "If the jury believe from the evidence that the assets of the bank became so depreciated in value as to cause the failure of the bank, and that it was not the acts of Carr, then they must find for the defendant." (6) "Unless the jury are satisfied, beyond a reasonable doubt, that the defendant intended to defraud the depositors, and that it was not through depreciation of value of assets that the bank failed, then they must find for the defendant." (8) "If the jury believe from the evidence that Carr or the bank's credit was good on 5th of May, and so continued till 8th of June, and that depreciated assets caused during that time its failure, then they will find for the defendant." (9) "If the jury believe from the evidence that the failure of the bank [was] not through fault of Carr, then they will find for defendant." (10) "Unless the jury are satisfied, beyond a reasonable doubt, that, when this deposit was made, that Carr knew the bank was in failing circumstances, and that Carr intended to injure, defraud, or apply the money to his own use, then the jury will find for the defendant." (11) "If the jury believe that this bank failure was a fair and honest failure, then they must find for the defendant." (12) "If the jury believe from the evidence that Harrington received the deposit made by Abernathy in Carr's absence, and without Carr's knowledge, or instructions to do so, then they must find for the defendant." (13) "If the jury believe from the evidence that Carr had negotiated for or secured money in New York to pay the depositors, and that his negotiations to do so were defeated by the levy of the attachment whilst Carr was so in New York, then they must find for the defendant." (14) "If the jury believe from the evidence that...