State v. Lewis

• Decision Date: 08 October 1929
• Docket Number: 29186
• Parties: The State v. Minor H. Lewis, Appellant
• Court: Missouri Supreme Court

20 S.W.2d 529

323 Mo. 1070

The State v. Minor H. Lewis, Appellant

No. 29186

Supreme Court of Missouri

October 8, 1929

Appeal from Macon Circuit Court; Hon. James A. Cooley Judge.

Affirmed.

Otho F. Matthews, Ed. S. Jones, William L. Hamrick and Harry J. Libby for appellant.

(1) The court erred in permitting the witness Shelby, State Bank Examiner, to testify to his classifications of the personal loans of the bank on "line sheets," and to characterize a large number of notes, aggregating about $ 40,000 in value, as "pretty close to worthless," and to classify other large amount of notes as "slow and doubtful," and in designating a large amount of other notes as "six months past due or over." This witness was not shown to have had any personal knowledge of said notes, the makers, securities, indorsers, property statements, or other facts qualifying him to express an opinion, nor was any proper foundation laid for his testimony. At most he made a mere arbitrary classification for departmental use by the Commissioner of Finance, and it was error to permit him to testify to this classification and thereby carry the inference of insolvency of the paper to the jury, an inference springing from a witness himself without qualification to speak on the subject and if he possessed any information at all it was based on mere hearsay. State v Sanford, 297 S.W. 73; State v. Walser, 1 S.W.2d 150; Akin v. Hull, 9 S.W.2d 688; Commonwealth v Hazlett, 16 Pa. S.Ct. 534; Cabannis v. State, 8 Ga.App. 129, 68 S.E. 849. (2) The insolvency of the bank could not be proven by secondary evidence or hearsay, or by conclusions of a witness, unless the conclusions are based upon a personal knowledge of the solvency and financial worth of the makers of the several notes and securities concerning which he testified; nor was it permissible in the court to permit a witness to testify to the value of certain assets in the aggregate when the notes themselves were not offered in evidence for the inspection of the jury or for the inspection of defendant's counsel. The defendant has the right to cross-examine the witness upon each individual note or security embraced within the assets of the alleged failed bank and concerning which the witness testifies, to test his knowledge as to the solvency of the maker thereof upon cross-examination. Cases cited above; State v Sattley, 131 Mo. 486; State v. Salmon, 216 Mo 524; Anderson v. Wheeler, 125 Mo.App. 406; Schrodt v. City, 109 Mo.App. 627; N. Y. Mining Syndicate v. Frazier, 130 U.S. 611. (3) There was no proof of the insolvency of the bank. A bank can only be proved insolvent by an investigation of the value of all its assets. There was no proof of the value of the banking house, furniture and fixtures, real estate loans, and other real estate owned by the bank. The State contented itself with testimony, inadmissible as it was, as to the solvency or insolvency of the personal loans of the bank. If any insolvency was shown in personal notes, there is no proof but what this deficit might have been overcome by excess value in other property owned by the bank and insolvency thereby avoided. State v. Hightower, 187 N.C. 500; Futrell v. State, 31 Ga.App. 767; State v. Sattley, supra; State v. Salmon, supra. (4) It was necessary for the State to prove knowledge on the part of the defendant of the insolvency or failing condition of the bank at the time he accepted the deposits in question before the jury could find the defendant quilty. It was error on the part of the court to exclude the testimony that the defendant was the largest individual depositor in the bank, and that his wife was a substantial depositor, and that his own father was a large depositor in the bank. This testimony has been denominated by this court as the strongest kind of testimony of a defendant's belief in the solvency of his bank. State v. Sanford, 297 S.W. 78. (5) It was error to permit the witness Combs to testify to the value of an indefinite list of notes out of an aggregate list of $ 156,000 in value, without taking into consideration the value of any collateral given to secure said notes, such as chattel mortgages, and without considering the property statements attached to the notes showing the financial worth of the makers. It was further error to admit this testimony because the defendant was uninformed as to what notes out of the list of $ 156,000 the witness was attempting to classify or to which he was attempting to fix a value. It was further error to permit this witness to testify as to the collectibility of these notes as they were then presented to him at the trial, two years after the offense is alleged to have been committed and without any showing of the financial change in the condition of the makers. See cases cited under Points 1 and 2. (6) The court erred in permitting witnesses Shelby and Killam to testify that the books of the Quincy-Ricker National Bank showed that the Clarence Savings Bank owed the Quincy-Ricker National Bank $ 20,000 in bills payable, without showing by the books of the Clarence Savings Bank or by other competent testimony to whom the $ 30,000 of bills payable listed in the daily statement book of the Clarence Savings Bank were due and payable, leaving the impression on the jury that the bills payable of the bank were a sum far in excess of the amount shown by its books. (7) The court committed error in permitting witnesses and counsel for the State to continually, while testifying, characterize entries upon the books of the bank as "shortages," "fictitious credits," "fictitious deposits," "fictitious reserves," it being for the jury, upon all the facts and circumstances and upon an inspection of the books of the bank, to determine the character of the entries therein, and not within the province of the witnesses and counsel for the State to express opinions, the language of the witnesses and counsel for the State thus permitted tending to inflame and prejudice the jury against the defendant. Ensor v. Smith, 57 Mo.App. 584. (8) The court erred in permitting the witness Shelby to detail to the jury an alleged conversation had by him with the board of directors of the Clarence Savings Bank on the night of October 15, 1925, without requiring said witness to state the words or the substance of the words used by each individual director during said conversation, and erred in permitting said witness to state his opinion, conclusions and summary of the effect of the whole conversation alleged to have been had with the board, thereby depriving the defendant of an opportunity to contradict the alleged facts and conversation testified to by the witness. (9) The court erred in giving to the jury Instruction J. This instruction was manifest error, in that it singled out the defendant and his witnesses and was leveled solely against the defendant and his witnesses. It is significant that in the whole of this instruction there is nothing that, in terms, makes it applicable to the State's witnesses, or attempts to tell the jury that they should weigh the credibility of the State's witnesses by the same standard as is there set up for determining the credibility of the defendant and his witnesses. It clearly singled out the defendant and his witnesses and was particularly vicious in the clause, "his or her relations to or feeling for the defendant." It did not add, "or the alleged injured party," but pointed out, emphasized and detracted from the credibility of defendant's witnesses without carrying to the jury any intimation that the State's witnesses were to be measured by the same yardstick. It has always been held that it was proper to refuse an instruction which tells the jury that the credibility of the witnesses on one side is affected by their interest in the result of the suit, while the instructions ignore similar facts affecting the credibility of the witnesses on the other side. There was furthermore no irreconcilable conflict, warranting the giving of this instruction. Phoenix Ins. Co. v. LaPointe, 118 Ill. 389; State v. King, 135 La. 117; Pennsylvania Co. v. Versten, 140 Ill. 637; State v. Summers, 281 S.W. 125; State v. Barnes, 274 S.W. 625; State v. Hamilton, 304 Mo. 28. (10) The court erred in giving to the jury Instruction D. It was error to give this instruction for the reason that whenever statements or admissions are offered in evidence by the State, the whole of the statement alleged to have been made must be given in evidence. Howard v. Newson, 5 Mo. 523; Burghart v. Brown, 51 Mo. 600; State v. McCleave, 256 S.W. 814. This instruction was erroneous and prejudical to the defendant because it did not tell the jury to consider any alleged statement or statements made by defendant all together, neither did it tell the jury that the defendant was entitled to the benefit of anything the defendant may have said for himself, in any conversation proved by the State, if true. Neither did this instruction tell the jury that the alleged statements or admissions were to be considered by them in connection with all the other facts and circumstances in evidence, and that viewed from that angle they should determine how much of the whole statement or statements of the defendant, proved by the State, the jury should deem worthy of belief. The instruction should have gone further and embodied these elements so long recognized as essential to fairly present the law of the case to the jury. State v. Simenson, 263 Mo. 264; State v. Davis, 226 Mo. 493; State v. Merkel, 189 Mo. 315; State v. Knowles, 185 Mo. 141; State v. Darrow, 152 Mo. 522; State v. Young, 119 Mo. 499; State v. Curtis, 70 Mo. 594; State v. West, 69 Mo. 406; State v. Carlisle, 57 Mo. 102; Green v. State, 13 Mo. 382; State v. Peek, 85 Mo. 190; State v....