State v. Hill

• Decision Date: 01 December 1931
• Docket Number: 31378
• Citation: 44 S.W.2d 103,329 Mo. 223
• Parties: The State v. Alvia Hill, Appellant
• Court: Missouri Supreme Court

44 S.W.2d 103

329 Mo. 223

The State v. Alvia Hill, Appellant

No. 31378

Supreme Court of Missouri

December 1, 1931

Appeal from Newton Circuit Court; Hon. Emory E. Smith Judge.

Reversed and remanded.

James E. Sater, W. B. Skinner, Ruark & Ruark and Robert Stemmons for appellant.

(1) The court's refusal to give to the jury defendant's Instruction S was error. By this instruction the defendant sought to have the jury told that in determining the solvency or insolvency of the bank they should not take into consideration the sum of $ 10,000 capital stock of said bank or the $ 20,000 surplus fund of the bank as liabilities. The court failed and refused by any instruction given to the jury to advise them that the $ 20,000 surplus should not be considered as a liability. The jury could have found that the bank was solvent, and accordingly acquitted the defendant had they been given correct instructions in the case. State v. Lewis, 20 S.W.2d 529; State v Lively, 311 Mo. 414, 279 S.W. 81; State v. Meininger, 312 Mo. 525, 290 S.W. 1003. (2) Defendant's instruction Q or R should have been given. They state the converse of the facts hypothecated in State's Instruction 1. State v. Stewart, 29 S.W.2d 123. (3) Instruction 4, given at the request of the State, is error. It does not properly define insolvency or in a failing condition as applied to a bank, in that said instruction does not require the debts or obligations mentioned therein to be due. It was error to tell the jury that it was immaterial what caused the conditions, mentioned in said instruction, to be brought about. The bank could easily be in the condition mentioned in this instruction and still be solvent and not in a failing condition. The court erred in failing to instruct the jury that a bank was not required to have sufficient assets on hand to be able to pay at once every debt it owed; but the court should have instructed the jury that it must be able to pay its debts as they fall due in the usual course of business. State v. Peer, 39 S.W.2d 532. (4) Instruction 6, given by the court, is error for the reason that said instruction authorized the jury to determine the defendant's actual knowledge of the solvency or insolvency of the bank by a consideration of all the facts and circumstances detailed in evidence; and the facts and circumstances in said instruction are not limited to matters existing at or before the closing of the bank, but include matters developed subsequent to the closing of said bank. State v. Stewart, 29 S.W.2d 120; State v. Lewis, 20 S.W.2d 529; State v. Lively, 311 Mo. 414, 279 S.W. 81; State v. Meininger, 312 Mo. 525, 290 S.W. 1003. (5) It was error to permit the state's witnesses Powell, Steele and Krueger to give their opinions and conclusions of the value of the assets of the bank. Said witnesses were not qualified to testify to the value of the assets of the bank. State v. Sanford, 317 Mo. 865, 297 S.W. 73; State v. Peer, 39 S.W.2d 528. (6) The court erred in permitting the State to prove that the Shelton notes were forgeries. The defendant is not chargeable with the condition of the assets of said bank about which he had no knowledge. State v. Stewart, 29 S.W.2d 120.

Stratton Shartel, Attorney-General, and Ray Weightman, Assistant Attorney-General, for respondent.

(1) Conceding that there was a surplus of $ 20,000, the State's evidence tended to show a deficit of more than $ 70,000. Even if the deficit had been credited with that $ 20,000 surplus, yet there would have remained a $ 50,000 deficit, and it is unreasonable to assume that the jury would have, even under those circumstances, found the bank to be solvent. The mere fact that the trial court did not advise the jury that it should not consider the surplus fund of $ 20,000 as a liability, will not be sufficient to justify a reversal of this cause. (2) State's Instruction number 6 is not error because it authorized the jury to determine the defendant's actual knowledge of the solvency or insolvency of the bank by a consideration of all the facts and circumstances detailed in evidence, the contention being that there were matters developed subsequent to the closing of the bank, and that there were many "facts and circumstances detailed in evidence," of which this defendant had no knowledge. This instruction, if read alone, might be misleading. However, it is preceded by Instruction 5 which tells the jury that the knowledge of the defendant as to solvency or insolvency at the time the deposit was received, must be measured by what he actually knew, if anything, concerning the bank's solvency or insolvency when said deposit was accepted, and he is not chargeable with knowledge of the bank's financial condition as shown by later events and subsequent investigation. It has long been the law that instructions in criminal cases are to be taken as a whole and are ordinarily read in the order in which they are numbered. State v. Darrah, 152 Mo. 538. (3) Instructions Q and R stated the converse of the facts hypothecated in State's Instruction 1. Instruction 1, which is the State's main instruction, concludes with those words, "and unless you so find, you should acquit the defendant," and this court has held that when the State's main instruction did so conclude, it was not error for the trial court to refuse defendant's converse instruction. More could not have been accomplished if the court had made a converse statement in detail of the facts, which, if found, would have authorized an acquittal. State v. Dougherty, 287 Mo. 90. Defendant is entitled to a converse instruction if he requests it, and it is error to refuse it unless such converse feature is sufficiently covered by instructions given. Such converse instruction is not an instruction necessary to the information of the jury, which must be given whether requested or not. State v. Gurnee, 309 Mo. 16. (4) Instruction 4 given at the request of the State is not error, in that "insolvency" or "in a failing condition" as applied to a bank, are not properly defined. The words "in the usual and ordinary course of business," incorporated as they are in this instruction, preclude the jury from deciding or understanding that the bank was compelled to meet all of its obligations and creditors at once, whether its debts were due or not. State v. Darrah, 152 Mo. 528; State v. Lively, 311 Mo. 443. (5) Appellant complains of the admission in evidence of the testimony of witnesses Krueger, Powell and Steele. These witnesses comprised the depositors' committee, and testified that the total value of the notes held by the bank was about $ 35,000. Objection is made that they were not properly qualified to testify as to values. It may be admitted that witness Powell did not qualify to that degree that such a witness should before giving testimony concerning values. However, it cannot be said that the qualifications of Steele and Krueger were not sufficient. State v. McClure, 31 S.W.2d 39; State v. Lewis, 20 S.W.2d 533.

White, P. J. All concur except Henwood, J., not sitting.

OPINION

WHITE

An information filed in the Circuit Court of Lawrence County charged that Edward C. Hill, president and director, Alvia Hill, cashier, and Emory Hill, vice-president and director, of the Stotts City Bank of Stotts City, in Lawrence County, while said bank was insolvent and in failing condition received and held in deposit one check for $ 34.50, of the value of $ 34.50, drawn by Kelly & Underwood Construction Company, upon the State Bank of Granby, Missouri, payable to A. Schoen; that said officers and directors received and assented to the reception of said money with knowledge that the Stotts City Bank was insolvent and in failing condition.

On a separate trial December 1, 1930, Alvia Hill was found guilty by a jury and his punishment assessed at two years in the penitentiary. The appeal is from the judgment following.

The following stipulation was read into the record:

"It is admitted that the Stotts City Bank was a banking institution incorporated under the laws of the State of Missouri, and doing business at Stotts City, Missouri, as such banking institution, on and prior to the 27th day of November, 1928; that the defendant Alvia Hill was, on and prior to the said 27th day of November, 1928, cashier of said bank; that on the 27th day of November, 1928, the said Stotts City Bank, through its officers and agents, received into said bank as and for a deposit in said bank a check for the sum of thirty-four dollars and fifty cents, drawn by Kelly & Underwood Construction Company, a corporation, by A. G. Kelley, on the State Bank of Granby, Missouri, said check being numbered two six five seven eight, dated November 23, 1928, payable to A. Schoen, otherwise known as Arthur Schoen, and that said check was of the value of thirty-four dollars and fifty cents at the time it was so received. It is admitted that said deposit was made in said bank in Lawrence County, Missouri."

The next day after the check was received, November 28, 1928, by resolution of the board of directors, the bank closed its doors and placed its assets in the hands of the Commissioner of Finance for liquidation.

The books of the bank showed the following resources and liabilities:

Resources

Bills receivable

$ 122,672.81

Central National Bank, Carthage, Mo.

100.31

Cash & Cash Items

1,431.26

Expense Account

2,684.00

War Savings Stamps

4.40

Other Real Estate owned

4,411.87

Overdrafts

70.62

Banking House

2,000.00

Mt. Vernon Bank, Mt. Vernon, Mo.

9,966.40

Farmers State Bank, Mt. Vernon, Mo.

2,500.00

Total

$ 145,841.67

Liabilities

Capital Stock

$ 10,000.00

Interest & Discount

9,727.84

Individual Deposits

51,984.29

Time Deposits

19,557.43

Surplus Funds

20,000.00

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