State v. Duckett

• Citation: 130 S.E. 340,133 S.C. 85
• Decision Date: 05 November 1925
• Docket Number: 11853.
• Parties: STATE v. DUCKETT.
• Court: United States State Supreme Court of South Carolina

130 S.E. 340

133 S.C. 85

STATE v. DUCKETT.

No. 11853.

Supreme Court of South Carolina

November 5, 1925

Appeal from General Sessions Circuit Court of Greenwood County; H C. Tillman, County Judge, and J. W. De Vore, Circuit Judge.

O. D Duckett was convicted of violation of the banking laws, and he appeals. Affirmed.

Joseph Murray, of Greenwood, for appellant.

H. S Blackwell, Sol., of Laurens, and Marshall F. Sanders, Co. Sol., of Greenwood, for the State.

PURDY A. A. J.

The Bank of Coronaca, in Greenwood county, was organized with a capital stock of $25,000. The first meeting of the directors was held on February 5, 1920. At this meeting, it was directed that 20 per cent. of the capital stock be paid in on or before February 15th, and the remaining 80 per cent. on or before March 1, 1920. At that meeting the defendant was elected as vice president. All of which is shown by the minutes of the bank. The minutes of June 15, 1920, also shows the following at the conclusion of the minutes: "After approving loans made by Mr. O. D. Duckett, the meeting was adjourned." The minutes of that date also show that certain excess loans to different persons were approved, but none of these loans were made to the defendant.

The bank afterwards went into liquidation, and the defendant was indicted and was tried in the county court for Greenwood county on September 15, 1924, Hon. H. C. Tillman presiding upon an indictment which contained eight counts, the eighth count charging that "on March 17, 1922, the said O. D. Duckett, being a director and president of the Bank of Coronaca, did willfully and unlawfully borrow from the said bank $2,500, the same being in excess of the amount of capital actually paid in and including the surplus of said bank and without the approval of the directors by a two-thirds vote thereof," in violation of section 258 of the Criminal Code of Laws of South Carolina 1922.

At the close of the testimony for the state, the defendant moved for a directed verdict in his favor, on the ground that the state had failed to make out a case on either of the eight counts alleged in the indictment, and the defendant exhibited to the solicitor a written approval signed by two-thirds of the directors of the bank for each of the loans set out in the first seven counts, and which, by permission, were put in evidence, and the presiding judge directed a verdict in favor of the defendant upon each of those seven counts, leaving only the eighth and last count on which the motion to direct a verdict in favor of the defendant was refused.

The jury returned a verdict of guilty as to the eighth count, and the defendant made a motion for a new trial, based upon the absence of any testimony tending to show that two-thirds of the directors of the bank had not in writing approved the loan to the defendant as set out in the eighth count of the indictment. The motion was overruled, and the defendant was sentenced to six months at hard labor. Two days after his conviction, and during the same term of court, a motion was made for a new trial on the ground of after-discovered evidence which motion was overruled, and on appeal to the circuit court for Greenwood county the judgment of the county court was sustained and the cause was remanded to that court for the enforcement of the sentence.

While the indictment charges that the money was borrowed on the 17th day of March, 1922, the defendant states in his examination:

"I borrowed this money in the early spring of 1920, after the bank was organized; about March 4, 1920, I think."

And he contended that there was an approval in writing by the directors. The defendant testified in part as follows:

"Q. Was there an approval in writing by the directors for this loan? A. Yes, sir.

Q. Where is that approval? A. The approval was turned over to Mr. Blake, the cashier. He is dead. There have been two cashiers since that time.

Q. Have you tried to find that approval since that? A. Yes, sir; I hunted for it at the same time I found these other approvals. We couldn't find it anywhere.

Q. At that time did you know that there was an approval in writing for this loan? A. Yes, sir.

Q. Did you see it? A. Yes, sir.

Q. To whom was it delivered? A. It was given to Mr. Blake, the cashier, who was the proper party to hold it,

Q. Who succeeded Mr. Blake as cashier? A. Mr. Stuart, and I have inquired of him for it and he could not find it.

Q. The directors had their meeting and approved the loan to you by the minutes? A. The loan was approved in writing by the full board.

Q. Before you obtained the loan? A. Yes, sir. We got the approval at the time or as soon afterwards as possible."

He went further and said that he had made search for this approval and could not find it, but stated that he dictated the approval to the stenographer at the People's Bank, wrote it out, and had it signed by the full board of directors. He said that the full capital stock of $25,000 was paid in. He had been in the banking business, he said, about 17 years, and knew that such loans must be approved. Loans of this kind did not appear on the minute book. They were kept separate. The bank examiner passed these loans and always called for the approvals. He said further, in reference to the loan, that it was made on March 4, 1920, and continued to be an outstanding loan through March, 1922.

A motion for a new trial on after-discovered evidence was based upon the approval which was found on a further search of the bank's effects two days after the defendant was convicted and while the Court was yet in session. That approval is as follows:

"Coronaca, S. C., February 5, 1920.

We, the undersigned directors of Bank of Coronaca, Coronaca, S. C., do hereby authorize E. W. Gregory, president, or O. D. Duckett, vice president, and T. S. Blake, cashier, to make loans to any officer or director of Bank of Coronaca, or any firm, company or corporation of which any director or officer is a member or officer, on security that they regard to be safe, any amount not exceeding the amount provided by law. We hereby approve all loans which may be made from time to time as authorized herein. [Signed] T. S. Blake. O. D. Duckett. M. C. Willard. E. W. Gregory. J. O. Owens. W. H. Harvley. J. F. Outz, Jr. These being all of the directors of said bank."

In passing upon the matter, Judge Tillman said:

"I do (not?) think this constitutes a sufficient showing of due diligence on his part. The main ground I wish to put my refusal to grant this motion on, and I wish to make it clear, so that it can be taken advantage of before the Supreme Court, is:

That the paper, under no construction, can be considered as a valid approval by the board of directors, for the loan made. The paper is dated February 5, 1920. The evidence is that this loan was not made until March 4, 1920, practically one month later. There is no evidence that at the time the paper was signed that the loan was even in contemplation,

...