Snead v. State
| Decision Date | 28 September 1927 |
| Docket Number | 5750. |
| Citation | 139 S.E. 812,165 Ga. 44 |
| Parties | SNEAD v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A presentment charging a felony, in that the fraudulent insolvency of a named bank is chargeable to the accused because the bank became insolvent during his management and control of such bank, is not demurrable because of the omission to state the acts committed or omitted by such banking officer which may have contributed to or caused said insolvency. Upon proof of the insolvency of the bank, and of the fact that the accused, either acting alone or conjointly with associates, was in control of the direction and management of such bank, the state has established a prima facie case of guilt, and the burden of showing that the acts of the accused were not the cause of the insolvency is cast upon the defendant, who may rebut the presumption of guilt and, in rebutting this presumption, may, among other means used for that purpose, prove that the insolvency was not due to any act of his.
There is no merit in the ground of demurrer asserting that the provisions of section 28 of article 20 of the Banking Act of 1919 (Acts 1919, pp. 135, 219) is violative of the Fourteenth Amendment to the Constitution of the United States.
There is no merit in the demurrer which challenges the presentment because the president of the bank is alone indicted. Even if the president acts with other officers associated with him in the management and control of a bank, each of these officials may be severally indicted. The president of a bank is presumed to be its alter ego.
The provision that "the defendant may repel the presumption of fraud by showing that the affairs of the bank have been fairly and legally administered, and generally with the same care and diligence that agents receiving a commission for their services are required and bound by law to observe," is not violative of article 1, § 1, par. 3, of the Constitution of this state, upon the ground that it provides a defense so uncertain and indefinite that it cannot avail the defendant as a defense. This for the reason, if no other, that this provision, properly construed, does not deny the accused the right of asserting any and all other defenses appropriate in his case.
For the reason just stated, the provision quoted is not in violation of the provisions of the Fourteenth Amendment to the Constitution of the United States.
A presentment charging one who was in charge of the affairs of a bank at and during the time it became insolvent with the offense of fraudulent insolvency need not allege or specify the acts which caused the insolvency. The presumption that the failure and insolvency of the bank was fraudulent is rebuttable, but res ipsa loquitur.
What is said in the preceding note applies to the fourth ground of the demurrer, which complains that the presentment "does not set out with any degree of particularity what the defendant failed to do or did not do as required by law."
For reasons stated in the fourth division of the opinion, there is no merit in the third ground of the demurrer, which complains that the portion of the indictment, which reads "being by law then and there charged with the fair and legal administration of the business and affairs of the said Citizens' Bank," is too vague, indefinite, and uncertain, and is not sufficient to put the defendant on notice of what is therein charged. Nor is there any merit in the contention that the presentment is defective because it fails to charge that the defendant "was charged with the fair and legal administration of the business and affairs of the said Citizens' Bank generally and with the same care and diligence that agents receiving a commission for their services are required and bound by law to observe." The provision last quoted refers to an additional defense suggested as cumulative to other defenses available to the defendant, and therefore need not be embodied in the statement of the presentment charging the offense.
Every accusation of crime shall be deemed sufficiently complete and technical which charges the offense in the language of the Code, or so plainly that a jury may understand the nature of the offense charged. In view of the prima facie presumption of a fraudulent insolvency, which arises from the failure of a bank, that such failure is due to the fraudulent mismanagement of the officers having the same in charge, a presentment charging this offense is sui generis, and it does not devolve upon the prosecution to allege, nor to prove in the first instance, anything more than the fact that the bank became insolvent while under the management and control of the accused and during the period of time that he was in charge of the affairs of the bank.
Error from Superior Court, Carroll County; James Maddox, Judge.
A. K Snead was convicted of causing the fraudulent insolvency of a bank, and he brings error. Affirmed.
S. Holderness, Boykin & Boykin, Smith & Millican, Betty Cobb, and H. C. Strickland, all of Carrollton, for plaintiff in error.
Colquitt & Conyers, Paul S. Etheridge and Little, Powell, Smith & Goldstein, all of Atlanta, representing party at interest not party to record.
Wm. Y. Atkinson, Sol. Gen., and Newnan, Denny & Wright, all of Rome, for the State.
John A. Boykin, Sol. Gen., Reuben R. Arnold and Hugh Howell, all of Atlanta, amici curiae.
Under the provisions of section 28 of article 20 of the Banking Act of 1919 (Acts 1919, pp. 135, 219), the plaintiff in error was presented for felony consisting in causing the fraudulent insolvency of the Citizens' Bank of Carrollton while under his management and control as its president and director. He demurred to the indictment, and excepts to the judgment of the court in overruling his demurrer and thereby sustaining the indictment. The presentment charges that A. K. Snead, "on the 31st day of December in the year 1925, in the county aforesaid, then and there unlawfully and with force and arms, being then and there president and director of the Citizens' Bank, a chartered bank incorporated under the laws of Georgia, and doing and carrying on a banking business in Carrollton, Carroll county, Ga., and as such president and director of said Citizens' Bank, he, the said A. K. Snead, being by law then and there charged with the fair and legal administration of the business and affairs of the said Citizens' Bank, and then and there pending and during the said official charge and responsibility of the said A. K. Snead as president and director thereof, the said Citizens' Bank did then and there be and become fraudulently insolvent, contrary to the laws of said state," etc. The defendant demurred upon the following grounds:
(1) That the indictment and the charge therein does not set out any violation of any law of the state of Georgia, the same being too vague, indefinite, and uncertain, and too general.
(2) That the indictment as a whole is insufficient, because it charges no one but the defendant, who is the president and director of the bank, with mismanagement and the cause of the fraudulent insolvency of said bank, when the act upon which the indictment is based requires all the directors and the president to be so charged; if not all, then such of them as are in charge of the bank, or, if one is in sole charge, then the one who was in sole charge of said bank.
(3) Specially to that part of the presentment, "being by law then and there charged with the fair and legal administration of the business affairs of the said Citizens' Bank," because it is too vague, indefinite, and uncertain, and is not sufficient to put the defendant on notice of what is therein charged; nor does it set out the law in regard thereto, in that it fails to charge that this defendant was "charged with the fair and legal administration of the business and affairs of the said Citizens' Bank, generally, and with the same care and diligence that agents receiving commissions for their services are required and bound by law to observe."
(4) Specially to the language, "then and there pending and during the said official charge and responsibility of the said A. K. Snead as president and director thereof, the said Citizens' Bank did then and there be and become fraudulently insolvent," for the reason that this charge is too vague, indefinite, and uncertain, and does not put the defendant on notice of what is charged thereby, or what he failed to do or did not do as required by law.
(5) This ground alleges that the language last quoted fails to charge how said bank became fraudulently insolvent.
(6-8) That the statute under which the defendant is indicted, to wit, Acts 1919, pp. 212, 219, and as set out in the old Penal Code, § 204, being section 28 of article 20 of the Banking Act of 1919, supra, is in violation of the Fourteenth Amendment of the Constitution, of the United States, and to the state Constitution, art. 1, § 1, par. 3, for the reason that the provision of the statute which states that the defendant may repel the presumption of fraud by showing that the affairs of the bank have been fairly and legally administered, and generally with the same care and diligence that agents receiving commissions for their services are required and bound by law to observe, provides a defense which is too uncertain and indefinite to be availed of by the defendant, thus resulting in making the question of criminality dependent upon the idiosyncrasies of the men who might happen to constitute the jury, and so uncertain that honest and intelligent men are unable to ascertain what particular acts it seeks to condemn.
(9) That the other directors of the bank are not jointly indicted with the defendant.
(10) That section 204 of the...
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