Dunn v. State
| Decision Date | 25 August 1913 |
| Docket Number | 5,010. |
| Citation | 79 S.E. 170,13 Ga.App. 314 |
| Parties | DUNN v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
An indictment based upon section 204 of the Penal Code of 1910 which alleges that a named trust company is "a corporation duly incorporated and chartered under the laws of Georgia, and doing and carrying on a banking business, and was a bank," sufficiently avers that the institution named is "a chartered bank," within the meaning of that section of the Code.
A company incorporated mainly for the purpose of exercising and vested with, the powers usually conferred upon companies authorized to act as guardian, receiver, or other trustee, is not a "chartered bank," within the purview of a penal law, merely because it may be empowered to exercise, as a mere incident to the main object of incorporation, some of the functions of a bank.
The words "chartered bank," as used in section 204 of the Penal Code of 1910, refer to a corporation having the powers, and exercising as the main object of its creation all or some of the functions, of a "bank" prescribed in section 2266 of the Civil Code of 1910.
There is nothing in the decision in Mulherin v. Kennedy, 120 Ga. 1080, 48 S.E. 437, which requires a ruling that a trust company, incorporated merely as such under the provisions of section 2815 et seq. of the Civil Code of 1910 is a "chartered bank," within the meaning of the penal laws of this state relating only to such banks.
A company, incorporated merely as a trust company, under the provisions of the act of 1898 (Civil Code 1910, § 2815 et seq.), is not a chartered bank, though it exercises, as an incident to the main object of its creation, the power to receive trust funds on deposit and the power to lend money.
Under the act of 1898 (Civil Code, § 2815 et seq.) trust companies incorporated under its provisions "may acquire and exercise all the rights and privileges, and be subject to the same liabilities and restrictions, as apply to banks, upon compliance with the laws of this state providing for the incorporation and regulating the business of banks."
The provisions quoted in the preceding headnote mean simply that a trust company may obtain a charter as a bank, and, after having done so, may exercise, in addition to its other powers, all the functions of a bank. If a trust company incorporated under the act should avail itself of this provision, and thus acquire the privileges of a bank, it would be a chartered bank, within the meaning of the penal laws of this state, though exercising the dual functions of a trust company and a bank.
Whether the courts know judicially without proof that a trust company incorporated under the act of 1898 (Civ. Code 1910, § 2815 et seq.) has or has not obtained a charter conferring upon it banking privileges as authorized by that act, is not involved in the present case, and for that reason is not decided.
Upon the trial of the present indictment the state carries the burden of proving that the trust company named in the indictment is a chartered bank. This burden cannot be successfully carried, unless it appears that the company has obtained a charter authorizing it to exercise the privileges of a bank.
Error from Superior Court, Richmond County; H. C. Hammond, Judge.
B.S Dunn was convicted under Pen. Code 1910, § 204, as director of an insolvent bank, and brings error. Affirmed.
C. A. Picquet, of Augusta, J.P. K. Bryan, of Charleston, S. C., and Gunter & Gyles, of Aiken, S.C., for plaintiff in error.
A. L. Franklin, Sol. Gen, of Augusta, and John M. Graham, of Atlanta, for the State.
The plaintiff in error was indicted for violating the provisions of the act of 1833, codified in section 204 of the Penal Code. The indictment (omitting formal parts) was in the following words: "For that the said B. Sherwood Dunn, in the county aforesaid, on the 19th day of July, 1912, with force and arms and unlawfully, being then and there a director of the Citizens' Trust Company, a corporation duly incorporated and chartered under the laws of Georgia, and doing and carrying on a banking business, and was a bank in said state and county, and city of Augusta, Georgia, and as such officer and director of said corporation and bank being by law charged with the fair and legal administration of its affairs, the said Citizens' Trust Company, then and there pending, and during the said official charge and responsibility of the said B. Sherwood Dunn, did then and there be and become fraudulently insolvent, contrary to the laws of said state, the good order, peace, and dignity thereof." The accused demurred, upon the ground that no criminal offense was charged, because the statute under which the indictment was framed applies only to officers of a chartered bank, and the indictment shows on its face that the accused was not an officer of a chartered bank, and because the officers of a chartered trust company are not punishable for its insolvency, whether fraudulent or not. The demurrer was overruled, and the accused excepted.
1. Under section 204 of the Penal Code "every insolvency of a chartered bank" "shall be deemed fraudulent," and the president and directors punished therefor, unless they can show that the affairs of the bank have been fairly and legally administered. In Youmans v. State, 7 Ga.App. 101, 66 S.E. 383, the act of 1833 was discussed at length. It was there held that, notwithstanding we now have no state banks of issue, the act has not become obsolete, but is applicable to any chartered bank. It was further held in that case that it was competent for the General Assembly to prescribe, as a rule of evidence, as was done in the act under consideration, that mere proof of the insolvency of a chartered bank raises a presumption against the officers named in the act that the insolvency was fraudulent and that the officers thus named participated in the fraud. By the very letter of the statute it applies only to chartered banks, and therefore, unless the indictment sufficiently charges that the corporation of which the plaintiff in error was a director was chartered bank, the indictment is fatally defective. His contention is that the allegations of the indictment show that the company in which he was director was not a chartered bank, but a trust company organized under the provisions of the act of 1898 (Acts 1898, p. 78), codified in article 8 of the Civil Code, section 2815 et seq.
The indictment charges that the Citizens' Trust Company "was a corporation duly chartered under the laws of Georgia." So there can be no question that it is sufficiently alleged that the company was duly chartered. It is further averred that the company "was doing and carrying on a banking business and was a bank." Having alleged in one place that the company was duly chartered and in another that it was a bank, it is clear that it sufficiently appears in the indictment that the corporation was "a chartered bank." It is contended that the very name of the corporation shows it was a trust company, and not a bank; but there is no statute in this state, like there is in some others, requiring that the word "bank" shall appear in the name of every corporation clothed with banking powers. Certainly it was not essential that the word "incorporated," or "chartered," and the word "bank" should have appeared in the indictment in juxtaposition. It is enough if it appears from the indictment as a whole that the institution was a chartered bank; that is to say, a corporation clothed with the powers usually exercised by banking institutions. Since the Citizens' Trust Company may be a bank, and as it is alleged to be a bank duly chartered under the laws of this state and engaged in the banking business, the indictment was not subject to the demurrer.
2. It seems to have been conceded, however, that the Citizens' Trust Company was organized under the act of 1898, appearing in Civil Code, § 2815 et seq., and as the point can be made upon the trial, we deem it proper to express our views upon the main question sought to be raised by the demurrer, viz whether an institution incorporated under the act of 1898 is a "chartered bank," within the meaning of the provisions of the act of 1833, codified in section 204 of the Penal Code. The mere fact that a company organized under the act of 1898 may exercise some of the functions of a bank would not make it a bank within the meaning of a penal law, subject to a strict construction in favor of one charged with its violation. Mercantile National Bank v. New York, 121 U.S. 138, 7 S.Ct. 826, 30 L.Ed. 895; State v. Reid, 125 Mo. 43, 28 S.W. 172; Wells Fargo Co. v. Northern Pacific Railway Co. (C. C.) 23 F. 469; Nash v. Brown, 165 Mass. 384, 43 N.E. 180; Jenkins v. Neff, 163 N.Y. 320, 57 N.E. 408; 3 Am. & Eng. Enc. Law (2d Ed.) 791. In the Youmans Case, supra, this court held that section 204 would not be so strictly construed as to exclude all banks save banks of issue, such as were in existence when the act of 1833 was passed, but that the section, having been re-enacted in the several Codes, would now apply to all corporations clothed with the functions and carrying on the business of banks. Assuming that the Citizens' Trust Company was incorporated under the act of 1898, the question is, Is it a "chartered bank?" or, to state the question somewhat differently, Does the act...
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