State v. Cole

• Decision Date: 31 May 1926
• Docket Number: 27938
• Citation: 109 So. 505,161 La. 827
• Court: Louisiana Supreme Court
• Parties: STATE v. COLE

109 So. 505

161 La. 827

STATE v. COLE

No. 27938

Supreme Court of Louisiana

May 31, 1926

[Copyrighted Material Omitted]

Rehearing Denied June 28, 1926

Appeal from Second Judicial District Court, Parish of Webster; John S. Richardson, Judge.

G. W Cole was convicted of receiving a deposit with knowledge that the bank of which he was vice president and cashier was in failing circumstances and insolvent, and he appeals.

Affirmed.

L. K. Watkins, Drew & Drew, and J. F. McInnis, all of Minden, for appellant.

Percy Saint, Atty. Gen., Percy T. Ogden, Asst. Atty. Gen., and W. D. Goff, Dist. Atty., of Arcadia (Thomas W. Robertson and E. R. Schowalter, Asst. Attys. Gen., of counsel), for the State.

OPINION

BRUNOT, J.

The accused was active president and cashier of the Bank of Cotton Valley. He was indicted by the grand jury, tried and convicted, and sentenced for a violation of Act No. 108 of 1884. From the verdict and sentence he appealed.

There are twenty-seven bills of exception in the record.

Bills Nos. 5, 8, 17, 19, 20, 21, 22, 23, and 24 will be considered separately, but the other bills may be grouped in the following order: First, Nos. 1, 2, and 3; second, Nos. 4 and 25; third, Nos. 6, 7, and 18; fourth, Nos. 9, 10, 11, 12, 13, and 14; fifth, Nos. 15 and 16; sixth, Nos. 26 and 27.

Bill No. 1 was reserved to the overruling of a motion to quash the venire. Bill No. 2 was reserved to an order of court directing that the name of juror F. W. Willis be placed in the venire box. Bill No. 3 was reserved to the overruling of defendant's challenge of juror F. W. Willis for cause.

It may be noted here that all of the testimony given during the trial of the case was stenographically taken by an employee of the accused. The stenographic notes were transcribed and filed in the record in a separate volume. None of the bills which were reserved by counsel for the accused show what testimony was taken at the time the objectionable ruling was made, except by reference to the page or pages of that volume. This is not a compliance with the provisions of Act No. 113 of 1896. When the facts upon which the bill is reserved are not taken down by the clerk or official stenographer of the court, and a properly certified copy thereof is not attached to the bill of exception, the rule is that the per curiam of the trial judge is controlling as to the facts stated therein. State v. Carmouche, 141 La. 325, 75 So. 68.

The per curiam of the trial judge to bill No. 1 is repeated, by reference, in the per curiam to bills Nos. 2 and 3. The judge says:

"On the trial of the case, late in the afternoon, it appearing that the venire had been exhausted, the court ordered the tales jury box brought into court and 50 names drawn therefrom, after which court adjourned. The next morning defendant contended that there had been only 29 jurors drawn and names placed in the jury envelope and box by the jury commission instead of 30, and filed a motion to quash the venire. On checking the matter up, it was found that juror F. W. Willis had not been called. On examining the jury box and the envelope which had remained in the custody of the court and proper officers, it was found that the slip on which this name was written had either stuck in the envelope when they were originally emptied into the jury box or had been inadvertently put back in the envelope. On the discovery of this, before any tales jurors were called, the court ordered the slip placed in the jury box from the envelope and drawn. Mr. Willis had been regularly drawn by the jury commission, his name placed on a slip, and placed in the envelope as required by law, was summoned and answered the summons. No fraud, injury, or wrong was alleged or shown, and, the slip being in the envelope, the court ordered that it be placed in the box and drawn in order that the original venire might be exhausted before any tales jurors were called for examination as to their qualifications. He was accepted by the defendant, although defendant had not exhausted his peremptory challenges."

The jury venire was, in every respect, regular and legal, and therefore the motion to quash the venire was correctly overruled.

The sheriff accidentally overlooked drawing the slip upon which the name of juror Willis was written, and announced to the court that the venire was exhausted. The court thereupon ordered the drawing of 50 tales jurors to complete the jury panel, and adjourned court.

When the court assembled on the following morning, the sheriff's error was discovered, and before further proceedings the court ordered the overlooked slip placed in the jury box and drawn therefrom in the regular manner. This juror qualified as a competent juror to try the case, but was challenged, for cause, by the defendant, because of the incident just related. The challenge was overruled, and thereupon defendant voluntarily accepted the juror. There is no showing that defendant was injured or that his defenses were affected by the rulings complained of. The acceptance of the juror, under the circumstances, is, at least, indicative of a waiver of defendant's complaint. We do not think the court erred in issuing the order excepted to, or in overruling the challenge of juror Willis for cause. Our predecessors have said that --

"It is not every error in the rulings of a judge during the progress of the trial that will justify the setting aside of the verdict. To warrant such action on the part of the court it must be so grave an error as to induce the belief that but for its commission a verdict favorable to the accused might have been returned." State v. Hill, 39 La.Ann. 927, 3 So. 117.

This court has repeatedly held that tales jurors may be drawn before the regular venire is exhausted. State v. Moncla, 39 La.Ann. 868, 2 So. 814; State v. Green, 43 La.Ann. 402, 9 So. 42; State v. Watkins, 106 La. 380, 31 So. 10; State v. Major, 132 La. 201, 61 So. 202.

For the reasons stated, bills 1, 2, and 3 are without merit.

Bills Nos. 4 and 25 are based upon defendant's attack upon the indictment. Bill No. 25 was reserved to the overruling of a motion to quash the indictment, and bill No. 4 was reserved to the overruling of an objection to any testimony on the part of the state under the alleged defective indictment. The indictment is attacked upon the ground that it "does not set out any crime known to the laws of the state of Louisiana." The indictment charges that --

"G. W. Cole, late of the parish of Webster, on the 13th day of April in the year of our Lord one thousand, nine hundred and twenty-five at and in the parish, district, and state aforesaid, did then and there, while active vice president and cashier of the Bank of Cotton Valley, a banking institution and corporation organized and existing in and under the laws of the state of Louisiana, and domiciled at Cotton Valley, La., willfully, unlawfully, and feloniously receive a deposit from A. J. Hodges Lumber Company, amounting to $ 95, after he, the said G. W. Cole, well knew and had knowledge of the fact that the said Bank of Cotton Valley was in failing circumstances, and insolvent."

Act 108 of 1884, under which the accused was prosecuted, reads:

"Section 1. That it shall be a crime for any president, director, manager, cashier, or other officer, or owner of any private or public bank or banking institution in the state, to assent to the reception of any deposit, or the creation of any debt by such banking institution, after he shall have had knowledge of the fact that it is insolvent, or in failing circumstances.

"Section 2. That any president, director, manager, cashier or other officer, or owner of any public or private bank or banking institution in this state, who shall have been convicted of the crime provided for by section 1 of this act, shall be imprisoned in the state penitentiary, at hard labor, for a time not less than (5) five nor more than (10) ten years, at the discretion of the court, and shall moreover be individually responsible for any such deposit, so received, and any such debt, so created, as is provided for by section 1 of this act."

The objection to the indictment is that it is not drawn in the words of the statute. The indictment charges the accused with receiving a deposit after knowing the bank to be insolvent, while the crime denounced by the statute is assenting to the receipt of a deposit under those circumstances. The contention of defendant is that receiving and assenting to the receipt of deposits have a different and distinct meaning. They are not interchangeable terms, and, as the accused is not charged in the exact words of the statute, the indictment is fatally defective. The per curiam of the judge to this bill follows:

"The bill of indictment, together with the motion for a bill of particulars and the answers of the state thereto taken together, charged a crime under Act 108 of 1884. While the exact words of the statute may not have been used, the words that were used are more extensive than and include the wording of the statute, and, as the court understands the law, the use of the identical words of the statute is not sacramental, but use of the words that convey the meaning of the statute is sufficient."

It is our opinion that, while the words of the indictment charging the defendant with receiving a deposit after knowledge of the fact that the bank was then insolvent are a departure from the words of the statute, they are substantially the same or sufficiently equivalent in meaning to charge the crime denounced by the statute under which the accused was prosecuted.

"An indictment for a statutory crime is sufficient if it follows substantially the language of the statute." State v. Menard, 150 La. 324, 90 So....