Manley v. State, 6160.

• Court: Supreme Court of Georgia
• Citation: 144 S.E. 170,166 Ga. 563
• Docket Number: 6160.
• Parties: MANLEY v. STATE.
• Decision Date: 11 July 1928

144 S.E. 170

166 Ga. 563

MANLEY
v.
STATE.

No. 6160.

Supreme Court of Georgia

July 11, 1928

Casemaker Note: Portions of this opinion were specifically rejected by a higher court in 279 U.S. 1

Syllabus by the Court.

Section 28 of article 20 of the Banking Act of 1919 (Acts 1919, pp. 135, 219) does not violate the due process clauses of the State and Federal Constitutions for any of the reasons alleged in the demurrer to the indictment.

The indictment is not insufficient in law to charge the defendant with any crime, for the alleged reason that said section of said act, upon which it is based, is void, for the reason that it is so vague and indefinite, and describes the act or acts designated as a crime in terms so general and indefinite, as to make the question of criminality depend upon the idiosyncracies of the court and jury, and in such terms that honest and intelligent men are unable to ascertain what particular act or acts it seeks to condemn.

Said section of said act is not violative of article 1 (section 1) par. 5, of the Constitution of this state, which provides that every person charged with an offense shall be furnished on demand with a copy of the accusation, in that an indictment under said section does not name the act or acts which are prohibited by law, and is inadequate to inform the person accused of crime of the nature of the accusation against him.

The certificate of a public officer of this state shall give sufficient validity or authenticity to any copy or transcript of any record, document, paper of file, or other matter or thing in their respective offices, or pertaining thereto, to admit the same in evidence in any court of this state.

(a) By the Banking Act of 1919, the superintendent of banks, upon taking over for liquidation an insolvent bank, is required to cause notice to be published in the newspaper in which the sheriff's advertisements of the county in which the bank is located are published, calling on all persons who have claims against the bank to present the same to him and make sworn proof thereof, filing the same with that officer at the office of the bank.

(b) Where, in response to such notice, certain Florida banks filed with the superintendent of banks verified claims against the bank in the hands of the superintendent for liquidation, certified copies of such claims are admissible in evidence in any court of this state, when relevant, and such certified copies are primary evidence.

(c) The original verified proofs of claims, so filed with the superintendent, without objection that certified copies thereof are the best evidence, are admissible to establish the fact that the makers were asserting claims against the bank in liquidation, and the trial judge did not err in admitting them for this purpose; they being, when taken in connection with other evidence in the case, relevant upon the issue whether the defendant had fairly administered the affairs of the bank.

Courts will not admit in evidence, over objection, against the defendant in a criminal case, the unsworn statements of a person, though they purport to be based on his own knowledge, as evidence of the existence of the facts stated, for the reason that such unsworn statements of a person not called as a witness or subjected to the test of cross-examination are not recognized as having sufficient probative value to raise an inference that the facts are as stated.

(a) Letters written by bank examiners, deputy bank examiners, receivers, or auditors in charge, or cashiers, or other officers of various Florida banks, to the auditor in charge of the Farmers' & Traders' Bank, which was in possession of the superintendent for liquidation, in some of which the writers stated that they had letters of advice from the Bankers' Trust Company that that company had deposited with the Farmers' & Traders' Bank various sums claimed by the Florida banks, and that these deposits were of the funds of the Florida banks, and in others of which the writers stated that the records of the Florida banks showed that the Georgia bank was indebted to the Florida banks in various sums for call money, were inadmissible when offered in evidence for the state against the defendant, over his objection that these letters contained unsworn and hearsay statements.

(b) But the illegal admission in evidence of these letters does not require the grant of a new trial, for the reasons: (1) That the trial judge distinctly instructed the jury that he admitted them simply as letters requesting the payment of demands, and not to establish the validity or legality of the demands or claims; (2) because the undisputed evidence shows that the claims of the Florida banks were not treated as liabilities of the Farmers' & Traders' Bank by the expert witnesses who alone testified to the insolvency of this bank; (3) because, under the undisputed evidence, leaving out and wholly disregarding these letters and the evidence relating to these claims, and not treating these claims as liabilities of this bank, the bank was insolvent when taken over by the superintendent of banks for liquidation; and (4) because the verdict finding the defendant guilty of the fraudulent insolvency of this bank was required under the law and the evidence.

Wholly disregarding the claims of the Florida banks against this bank, the verdict finding the defendant guilty of the fraudulent insolvency of this bank was required by the evidence, and in such a case error in refusing to charge in reference to these claims will not necessitate a new trial. For this reason the refusal of the court to give the requests to charge set out in grounds 92 to 116, inclusive, of the motion for new trial, even if such requests were proper, will not require the grant of a new trial.

Where a witness knows a fact both from his personal knowledge and from hearsay, and the issue is one upon which the witness can express an opinion after giving the facts, it is competent for such witness to testify that he knows the facts upon which he bases his opinion both from his personal knowledge and from hearsay.

(a) The insolvency of a bank can be established by the opinion of a witness, provided he gives the facts upon which his opinion is founded; and, such testimony being competent, the jury must decide as to its weight and effect, and the credit they will give to it.

(b) Where a witness and others make an appraisal of the assets of an insolvent bank, such witness can testify as to the value put upon various bills receivable of the bank by such appraisers, as one of the facts upon which he bases his sworn opinion at the trial that the bank is insolvent; and such evidence is not hearsay.

Where documentary evidence consists of books of account or documents containing multifarious details, expert accountants may summarize their contents and testify to the result of the examination, provided the books and documents are made accessible to the court and parties. Where the purpose of such testimony is not to show the insolvency of the notes embraced in this appraisal, but to inform the jury what the books and records of the bank and this appraisal showed its financial condition to be, assuming such appraisal to be correct, it is not inadmissible upon the ground that it is hearsay.

Where the contents of a writing are not material to the inquiry, but the correctness of the classification embraced therein is relevant, it is permissible for the witness to refer to such document, and to describe it in a general way. The court did not err in admitting the evidence dealt with in the ninth division of the opinion. The purpose of this testimony was not to show that the appraisal had been made, but, assuming it to be made, the object was to show how much of the notes classified therein as good, as doubtful, and as worthless, had been collected; the ultimate object being to show whether the notes appraised as good were good, whether those appraised as doubtful were doubtful, and whether those appraised as worthless were worthless.

The court did not err in admitting the evidence dealt with in the tenth division of the opinion. An objection to evidence, not urged at the time it was admitted, and dealt with for the first time in the brief of counsel, will not be considered by this court.

The court did not err in refusing to permit a witness sworn for the state to answer the cross-question propounded to him, and dealt with in the eleventh division of the opinion.

To make a custom or usage good, it must not be contrary to law. Custom cannot change the positive law of the state. The defendant was not injured by the refusal of the court to permit the witness for the state to answer the question set out in the twelfth division of the opinion. If the practice was legal, proof thereof was not required; and, if the practice was illegal, such practice would not avail the defendant.

The instruction dealt with in the thirteenth division of the opinion was not error, for the reason that the court thereby excluded from the jury, as a means of rebutting such presumption, any other facts or circumstances which might be sufficient to rebut the same; the court having expressly, in another part of his charge, instructed the jury otherwise.

The court did not err in giving to the jury the instruction dealt with in the fourteenth division of the opinion. This instruction was not erroneous, for the reason given in the preceding headnote.

The failure of the court to give to the jury the instruction set out in the eighty-second ground of the motion for new trial was not error, for the reason that the court did in effect give such instruction.

The capital stock of a bank is not a liability that should be taken into account in determining the question of solvency or insolvency of a bank, under section 28, art. 20, of the Banking Act.

(a) The liability of a bank to its stockholders...