State v. Bolyn

• Decision Date: 04 January 1928
• Docket Number: 12344.
• Parties: STATE v. BOLYN.
• Court: South Carolina Supreme Court

141 S.E. 165

143 S.C. 63

STATE v. BOLYN.

No. 12344.

Supreme Court of South Carolina

January 4, 1928

Appeal from Common Pleas Circuit Court of Horry County; S. T Lanham, Judge.

S. P Bolyn was convicted of making false representations as to the capital of a corporation and of perjury, and he appeals. Reversed.

The indictment and appellant's exceptions were as follows:

Indictment.

The State of South Carolina, County of Marion. At a court of general sessions, begun and holden in and for the county of Marion, in the state of South Carolina, at Marion, in the county and state aforesaid, on the 8th day of June, in the year of our Lord, 1925.

I. The jurors of and for the county aforesaid, in the state aforesaid, upon their oath, present that S. P. Bolyn on the 15th day of October, 1924, at Marion, in the county and state aforesaid, was a director and cashier of the Planters' Bank, a banking corporation organized and established and then and there doing business as and under the name of the Planters' Bank under and by virtue of the laws of the state of South Carolina, the said S. P. Bolyn being then and there actively engaged in the management of the business and affairs of said bank by virtue of his official relation thereto as director and cashier; that the said S. P. Bolyn as director and cashier as aforesaid, at the time and place aforesaid, unlawfully, knowingly, willfully, and with intent to deceive, did make and cause to be made certain fraudulent misrepresentations as to the property and resources of said bank in this, that the overdrafts thereof amounted only to $266.69, whereas, in truth and in fact, said overdrafts aggregated $5,608.53, and, in this, that no officer or director of said bank was overdrawn, whereas, in truth and in fact, the account of H. A. Lewis "personal," was overdrawn $18, H. A. Lewis (milk account) was overdrawn $5.05, S. P. Bolyn was overdrawn $200.75, Z. G. Smith was overdrawn $593.31, said persons being officers of said bank, all of which the said S. P Bolyn then and there well knew; and so the said S. P. Bolyn, in the manner and form aforesaid, did knowingly, wrongfully, and willfully make and cause to be made said fraudulent misrepresentation, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.

II. And the jurors, upon their oath aforesaid, do further present that S. P. Bolyn on the 15th day of October, 1924, at Marion, in the county and state aforesaid, was a director and cashier of the Planters' Bank, a banking corporation theretofore organized and established and then and there in operation and doing business as and under the name of the Planters' Bank under and by virtue of the laws of the state of South Carolina, the said S. P. Bolyn, being then and there actively engaged in the management of the business and affairs of said bank by virtue of his official relation thereto as director and cashier as aforesaid, at the time and place aforesaid, did willfully, unlawfully, and knowingly commit perjury in this, that the said S. P. Bolyn, being then and there sworn, did say on his corporal oath that the overdrafts of the Planters' Bank amounted to only $266.69, whereas, in truth and in fact, said overdrafts aggregated $5,608.33; that no officer or director of said bank was overdrawn, whereas, in truth and in fact, the account of H. A. Lewis, "personal," was overdrawn $18, H. A. Lewis (milk account) was overdrawn $5.05, S. P. Bolyn was overdrawn $200.75, Z. G. Smith was overdrawn $593.31, said persons being officers of said bank, the said S. P. Bolyn well knowing said statements to be false; and so the said S. P. Bolyn, in the manner and form aforesaid, did swear falsely in taking an oath required by law and administered by a person directed and permitted by law to administer the same, and thereby committed perjury, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.

Exceptions.

(1) It is respectfully submitted that the presiding judge erred in ordering the case to trial, when it appeared that Mr. F. H. Daniels, former assistant state bank examiner, who had had the bank in which the defendant was employed under his supervision for several months prior to its closing, and had been called into conference immediately preceding the closing of the said bank, a state's officer and under subpoena as a state's witness, to appear at the court for the trial of this case, but who was absent when the case was called for trial, and in so ordering the case to trial under these circumstances it is respectfully submitted that the trial judge abused his discretion to the immense prejudice of the defendant.

(2) It is respectfully submitted that the trial judge erred in overruling the motion to quash and the demurrer to the indictment because the said indictment in both counts was so vague, uncertain, indefinite, and incomplete as completely to fail to apprise the defendant of the exact nature of the offense with which he was charged.

(3) It is respectfully submitted that the trial judge erred in overruling the motion to quash and demurrer as to the first count, because there was no allegation contained therein t o show that the matter therein set forth and charged to be false was material to the conduct of the business, or that it related to either the capital, property or resources of the bank, or that it had been made to some specified person for the purpose of inducing action upon it, or to a person having an interest in the corporation or a right to obtain the information, or that it had been fraudulently made.

(4) It is respectfully submitted that the trial judge erred in overruling the motion to quash and the demurrer as to the first count of the indictment, because there were no allegations to show (a) to whom the alleged representation was made; (b) ignorance of its falsity by the person to whom it was made; (c) that it was made to induce action upon it; and (d) that there was action upon it with damage.

(5) It is respectfully submitted that the trial judge erred in overruling the motion to quash and the demurrer as to the second count of the indictment, because there is no allegation therein to show (a) by or before whom he was sworn; (b) in what manner he was sworn; (c) that the matter with which he was charged with swearing was material or any other fact as distinguished from a conclusion of law that would enable the defendant to prepare himself to meet the charge against him.

(6) It is respectfully submitted that the trial judge erred in overruling the motion to require the state to elect upon which count of the indictment it would try the defendant, where it appeared in the indictment that identically the same transaction would be relied upon as constituting a violation of section 134 of the Criminal Code and also willful perjury.

(7) It is respectfully submitted that the court erred in admitting in evidence the books and records of the bank, consisting of Exhibits C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, X, Y, Z, and 1, 2, 3, 4, 5, and 6, over the objection of the defendant, because of the total absence of evidence tending to show that such records had been made by the defendant.

(8) It is respectfully submitted that his honor erred in permitting the witness La Roque and the witness Johnson to be interrogated by state's counsel with respect to the publication of a statement of the condition of the bank in a newspaper to wit, the Marion Star, under date October 22, 1924, in the presence of the jury, the effect of which was to the prejudice of the defendant, there being no evidence to show that the publication was made by the defendant or at his instance or request, and in admitting the paper in evidence.

(9) It is respectfully submitted that his honor erred in permitting the witness Johnson to be interrogated by state's counsel with respect to the publication of a statement of the condition of the bank in a newspaper, to wit, the Marion Star, under date October 6, 1924, in the presence of the jury, the effect of which was to the prejudice of the defendant, the said evidence being irrelevant, incompetent, and inadmissible, there being no evidence tending to show that the publication was made by the defendant or at his instance or request, and in admitting the paper in evidence.

(10) It is respectfully submitted that his honor erred in admitting in evidence the Marion Stars under date of October 6, and 22, 1924, with the admonition that the defendant must be shown to have published or caused the same to be published, and in subsequently striking it out of the record, but failing to take adequate precaution by appropriate statement to the jury of the intent, purpose, and effect of such ruling.

(11) It is respectfully submitted that his honor erred in permitting the published statement of October 6th to remain in the record, because the same was not responsive to any charge contained in the indictment, was irrelevant and prejudicial to the defendant.

(12) It is respectfully submitted that his Honor erred in failing to direct a verdict of "Not Guilty" upon the whole case upon motion duly made at the conclusion of the state's evidence, because there was no evidence under the first count to show (a) a false representation; (b) knowledge of the defendant of its falsity; (c) to whom it was made; (d) ignorance of its falsity by the person, if any, to whom it was made; (e) intention that it should be acted upon; and (f) action upon it with damage.

(13) It is respectfully submitted that his honor erred in failing to direct a verdict of "Not Guilty" upon the whole case, on motion duly made at the conclusion of the state's...