McCraine v. State
| Decision Date | 20 October 1930 |
| Docket Number | 28612 |
| Citation | 158 Miss. 156,130 So. 295 |
| Court | Mississippi Supreme Court |
| Parties | MCCRAINE v. STATE |
APPEAL from circuit court of Sunflower county, HON. S. F. DAVIS Judge.
J. A. McCraine was convicted of receiving a deposit in a savings bank, having then and there good reason to believe the bank was insolvent, and he appeals. Reversed and remanded for new trial.
Judgment reversed, and cause remanded.
Frank Everett and Oscar B. Townsend, both of Indianola, and J. M. Forman, of Jackson, for appellant.
In determining the solvency or insolvency of a bank on the date of receipt of a deposit, the value of the securities used as assets of the bank the day that the deposit was alleged to have been received is the true test and a witness should not be permitted to tell about what he as liquidating agent had done with these securities and how much he was able to realize on them after two years had elapsed since the deposit had been received.
Freeman v. State, 108 Miss. 818, 67 So. 460; 3 R. C. L., page 493 sec. 121; Ellis v. State, -- Wis. 513, 120 N.W. 1110, 131 A. S. R. 1022.
Even though the bank is insolvent appellant could not commit a crime under the statute, unless he in fact knew of such insolvency or in fact had good reason to believe therein.
Stewart v. State, 49 So. 615, 616.
The amount owing by the bank to its stockholders as such or its capital stock should not be considered as a debt against the bank in determining its solvency.
7 C. J., p. 580; Skarda v. State (Ark.), 175 S.W. 1190; Wilkin v. State, 180 S.W. 512, 515; State v. Myers, 54 Kan. 206, 38 P. 296.
The court commits fatal error when it permits a witness to testify and offer exhibits from certain banks which purported to be sheets from the original ledgers of the bank and which the witness himself says he did not keep and does not know whether they are correct or incorrect, and which records on their face show them to be palpably incorrect.
W. A. Shipman, Assistant Attorney-General, for the state.
The testimony shows conclusively the guilt of the appellant of having received a deposit on the 9th day of December, 1927, of two hundred forty dollars at a time when he knew that the Delta Penny Savings Bank was utterly insolvent and that in doing so he violated the statute in such a case made and provided, and that under the testimony and law applicable thereto, the jury had no election in the matter, but under their oaths could do nothing other than return a verdict of guilty as they did.
Argued orally by Frank E. Everett, for appellant, and W. A. Shipman, Assistant Attorney-General, for appellee.
J. A. McCraine was indicted at the September term, 1929, of the circuit court of Sunflower county on a charge of receiving a deposit from one Vonnie V. Case in the Delta Penny Savings Bank on the 10th day of December, 1927, having then and there good reason to believe that the bank was insolvent. He was convicted by a jury on said charge and sentenced to serve one year in the state penitentiary.
There are a number of errors assigned for reversal of the cause, among them is that R. W. Hall, a witness for the state and who was liquidating agent of the superintendent of banks for the Fraternal & Solvent Bank & Trust Company, a banking corporation doing business in Memphis, Tennessee, was permitted to testify as to what the books of that bank showed with reference to deposits therein by the Delta Penny Savings Bank. This testimony was objected to until the books were properly certified and shown to have been properly kept. This witness testified, with reference to the correctness of the books and his knowledge thereof, as follows:
The books kept by the Delta Penny Savings Bank showed large deposits of money in this Fraternal & Solvent Bank & Trust Company, but the witness was permitted to state that the books showed a deposit of two hundred ninety-six dollars and fifty-eight cents on the date the defendant is charged with having received the deposit, knowing the Delta Penny Savings Bank to be insolvent.
We think it was error to admit the testimony of the witness as to what the books showed, and the entry of the books of the Fraternal & Solvent Bank & Trust Company without first showing that the books were correctly kept. The evidence was material, and this error was harmful to the defendant in his trial. It also appears from the exhibits introduced from said books that certain deposits made prior to the date of the reception of the deposit by the Delta Penny Savings Bank have not been brought forward or properly accounted for.
The defendant offered to prove by S. M. Rogers that on or about the 2d day of January, the day before the Delta Penny Savings Bank was closed by the state bank examiners, he made a deposit in said bank of small amount for himself and small amount for his wife; that...
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