People v. Lewis, 136.

• Decision Date: 02 March 1933
• Docket Number: No. 136.,136.
• Parties: PEOPLE v. LEWIS.
• Court: Michigan Supreme Court

262 Mich. 308

247 N.W. 154

PEOPLE

v.LEWIS.

No. 136.

Supreme Court of Michigan.

March 2, 1933.

Appeal from Circuit Court, Ogemaw County; Fred P. Smith, Judge.

Charles D. Lewis was convicted of violating provisions of the Banking Law relating to limitation of loans to any one person, and he appeals.

Affirmed.

Argued before the Entire Bench.

Henry R. MacGillis, of Detroit, for appellant.

Patrick H. O'Brien, Atty. Gen., and William T. Yeo, Sp. Pros. Atty., of West Branch, for the People.

NORTH, Justice.

This is an appeal by the defendant who was convicted of violating sections 25 and 50 of the General Banking Act, being sections 11922 and 11947, Comp. Laws 1929. The pertinent provisions of the statute are:

‘11922 * * * Sec. 25. The total liabilities to any bank of any person or of any company, corporation or firm for moneys advanced, * * * shall at no time exceed one-tenth (1/10) part of the amount of capital and surplus of such bank: Provided, however, That by a two-thirds (2/3) vote of directors, the liabilities to any bank of any person or company, or corporation or firm may be increased to a sum not exceeding one-fifth (1/5) of the capital and surplus of the bank; but such additional one-tenth (1/10) of such capital and surplus shall not be loaned to any officer or director, * * * until such officer, [or] director, * * * furnishes collateral or endorsements satisfactory to the directors, or files with the bank a sworn statement of assets and liabilities showing a net worth of sufficient amount to be entitled to such credit.’

‘11947 * * * Sec. 50. Every officer, clerk, agent or employee of a bank who shall knowingly aid or assist in a violation of any of the provisions of this act, shall be deemed guilty of a felony. * * *’

The information contains two counts. It charges that between January 1, 1930, and June 12, 1930, the defendant, being then and there president and a director of the Union State Bank of Mio, Mich., a Michigan corporation with capital and surplus not exceeding $25,000, did knowingly and unlawfully incur liabilities to said bank in excess of $14,795 for moneys advanced and loaned to defendant from the funds of said bank, which said loans exceeded one-tenth of the capital and surplus of said bank. The second count is substantially the same except in that it charges defendant's loan exceeded one-fifth of the capital and surplus.

The undisputed proof discloses that within the period covered by the information defendant was indebted to the bank in the sum of $2,628.96 for which it held his promissory notes. This indebtedness alone exceeds the statutory limitation of one-tenth of the bank's capital and surplus. But appellant urges that he might lawfully borrow in excess of the statutory limitation of one-tenth of the bank's capital and surplus because the bank directors authorized and extended to appellant credit to the amount of $3,500. The trial judge held against this contention, and we think properly so, for the reasons stated in the following portion of his charge to the jury: ‘Now, gentlemen, he could not have that credit of $3500.00 at this bank, because that would be in excess of one-tenth of the capital and surplus, and he would have to get credit by conforming to the provisions of the statute which provides that the liability may exceed one-tenth by another one-tenth; but in order to do that he shall deposit additional collateral security with the bank, or file a sworn statement of his assets showing a worth which would entitle him to credit, or an increased liability of one-fifth of the amount of the capital. He did not do that.’

In submitting to the jury the amount of defendant's indebtedness to the bank on promissory notes, a past-due note of $75 on which defendant was the indorser was included. Appellant asserts this as error, claiming that, in determining whether the statutory provision has been exceeded, only direct liabilities should be considered, not those of an indorser which are secondary or contingent in character. Regardless of whether such liability is within the terms of the statute, we think the ruling was not prejudicial. Exclusive of this item, defendant's liability of $2,628.96 on three of his notes held by the bank exceeded one-tenth of its capital and surplus. This uncontroverted testimony alone is sufficient to sustain conviction.

Incident to the people's case under the second count these further facts are pertinent: Appellant owned and operated a private bank at...