State v. Powell

• Decision Date: 10 April 1926
• Docket Number: 26,050,26,046
• Citation: 245 P. 128,120 Kan. 772
• Parties: THE STATE OF KANSAS, Appellee, v. O. A. POWELL, Appellant. THE STATE OF KANSAS, Appellee, v. J. N. RICHARDSON, Appellant
• Court: Kansas Supreme Court

245 P. 128

120 Kan. 772

THE STATE OF KANSAS, Appellee, v. O. A. POWELL, Appellant.

THE STATE OF KANSAS, Appellee, v. J. N. RICHARDSON, Appellant

Nos. 26,046, 26,050

Supreme Court of Kansas

April 10, 1926

Decided January, 1926.

Appeals from Sedgwick district court, division No. 3; JESSE D. WALL, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. BANKS AND BANKING--Prosecution for Fraudulent Banking--Amendment of Transcript. The warrant of arrest served on the president and the vice president of a bank in a prosecution for violation of the section of the banking act relating to fraudulent banking, charged accepting and receiving and permitting and conniving at receiving and accepting deposits by the bank, knowing it to be insolvent. After a preliminary examination, the examining magistrate found the crime of accepting and receiving deposits had been committed, and there was reasonable ground to believe defendants to be guilty. The information charged defendants with permitting and conniving at receiving and accepting deposits. A plea in abatement was filed alleging no preliminary examination on the charges contained in the information. At the hearing on the plea the court found the evidence at the preliminary examination established the facts that the crime charged in the warrant had been committed, and there was reasonable ground to believe defendants to be guilty. Held, omission of the examining magistrate to enter on his record the facts appearing at the preliminary examination that the crime of permitting and conniving at receiving and accepting deposits had been committed, and that reasonable cause existed to believe defendants guilty, might be cured by bringing these additional facts on the record by amendment, provided it could be done without prejudice to substantial right.

2. SAME--Amendment of Transcript--Plea in Abatement. The amendment having been made and no prejudice having been shown, the plea in abatement was properly overruled.

3. SAME--Amendment of Transcript--Proper Party. The examining magistrate was judge pro tem. of a city court. He was not serving as such officer at the time of the hearing on the plea in abatement. Held, he was the proper person to amend the record.

4. SAME--Information--Duplicity. The information contained nine counts relating to deposits by nine different depositors. Held, the information was not bad for duplicity.

5. SAME. Each count charged permitting and conniving at receiving and accepting the deposit of a named depositor. Held, none of the counts was bad for duplicity.

6. SAME--Information--Sufficiency as to Allegation of Insolvency. Essential elements of the offense were insolvency of the bank and knowledge of its insolvency when the deposits were received. The information did not contain a direct allegation that the bank was insolvent. It did charge defendants with permitting and conniving at receiving and accepting deposits, well knowing the bank was insolvent. Held, the information was sufficient.

7. SAME--Information--Sufficiency. Various grounds of a motion to quash the information considered, and held, the motion was properly denied.

8. SAME--Evidence of Insolvency--Competency of Opinion Evidence. The banking act provides that a bank shall be deemed insolvent when the actual cash market value of its assets is insufficient to pay its liabilities. Held, opinion evidence that the bank was insolvent is not admissible in a prosecution for fraudulent banking.

9. SAME--Opinion Evidence--Nonprejudicial Admission. The evidence in a prosecution for fraudulent banking considered, and held, opinion evidence that the bank was insolvent was not prejudicial.

10. SAME--Evidence--Admission. Assignments of error relating to rulings respecting admission and rejection of evidence considered, and held not to be well founded.

11. SAME -- Liabilities -- What Constitutes. In a prosecution for fraudulent banking, the capital, surplus and undivided profits of the bank are not to be counted as liabilities in striking a balance between assets and liabilities.

12. SAME--Instruction. Assignments of error relating to instructions given and refused considered, and held not to be well founded.

13. SAME -- Punishment -- Fine and Imprisonment. The statute relating to fraudulent banking provides for punishment by both fine and imprisonment. Held, the statute is not qualified by a provision of the crimes and punishments act of 1868 to the effect that imposition of a fine is not authorized when the offender is sentenced to confinement and hard labor.

14. SAME--Knowledge of Insolvency--Evidence--Instruction. In a prosecution of an officer of a bank for fraudulent banking, the defense was the officer did not know the bank was insolvent until after banking hours on the day the deposits were received. He offered evidence of a succession of closely related events occupying the time from the closing of the bank until midnight of the same day, tending to prove that another officer was solely responsible for the bank's insolvency, and that the insolvency became known for the first time in the course of the events. Held, the evidence was admissible. Held further, the state of the case was such that rejection of the evidence was prejudicial. Held further, the error committed in rejecting the evidence was intensified by certain instructions given the jury.

15. SAME--Reception of Deposits--Authority of Vice President--Instructions. Instructions relating to authority of a vice president of the bank to prevent reception of deposits by the bank after discovery of insolvency considered, and held to be erroneous.

16. SAME--Knowledge of Insolvency--Admission of Evidence as to Value of Home. The contested issues in the vice president's case were, whether the bank was insolvent, and whether he knew of the insolvency when deposits were received. The court permitted the state to introduce in evidence, over his objection, photographs of his home, and sent the jury to view his house and grounds. The evidence was made the basis of an acrimonious harangue in the closing argument for the state. Held, the evidence was impertinent to the issues, and the licensed invective was derogatory to the dignity of the court, the decorum of the trial, and the interest of truth and justice.

Robert C. Foulston, George Siefkin, Sidney L. Foulston, A. V. Roberts, all of Wichita, W. H. Carpenter and W. R. Carpenter, both of Marion, for appellant O. A. Powell. George McGill, John W. Adams, William J. Wertz, James A. Conly, Victor J. Rogers and George L. Adams, all of Wichita, for appellant J. N. Richardson.

Charles B. Griffith, attorney-general, W. A. Blake, county attorney, S. A. Buckland and S. B. Amidon, both of Wichita, for the appellee.

OPINION

BURCH, J.:

An information was filed charging J. N. Richardson, president, O. A. Powell, vice president, and other officers of the American State Bank of Wichita, with violation of the section of the banking act making it a felony for a bank to receive deposits while it is insolvent. Richardson and Powell were convicted at separate trials, and appeal. Assignments of error common to the two cases may be considered together.

The statute reads as follows:

"No bank shall accept or receive on deposit, with or without interest, any money, bank bills or notes or United States treasury notes, gold or silver certificates, or currency, or other notes, bills, checks, or drafts, when such bank is insolvent; and any officer, director, cashier, manager, member, partner or managing partner of any bank who shall knowingly violate the provisions of this section or be accessory to or permit to connive at the receiving or accepting on deposit of any such deposit, shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding five thousand dollars, or by imprisonment in the penitentiary not less than one year nor more than five years, or by both such fine and imprisonment." (R. S. 9-119.)

The complaint furnishing the foundation for the warrant contained nine counts. Each count related to a separate deposit, and charged defendants with accepting and receiving and permitting and conniving at receiving and accepting the deposit, knowing the bank to be insolvent. The warrant of arrest recited the charges contained in the complaint, and was returned to the city court of Wichita, where a preliminary examination was held by a judge pro tem. The proceedings were taken by a stenographer, who made a transcript showing what occurred. At the conclusion of the preliminary examination, the judge pro tem. signed separate journal entries, identical in form except as to name, holding defendants for trial. The journal entry in the Richardson case reads as follows:

"After hearing the evidence and argument of counsel, the court finds that the offense of receiving and accepting deposits in the American State Bank, a banking institution, on the 18th day of June, 1923, and knowing the bank to be in an insolvent condition, has been committed as charged in the first, second, third, fourth, fifth, sixth, seventh, eighth and ninth counts of the complaint and warrant, and there is reasonable ground to believe that the defendants, J. N. Richardson, Phil Drumm, R. E. Crummer and O. A. Powell, committed the offense in each charge.

"Whereupon the defendant, J. N. Richardson, is bound over to appear at the district court of Sedgwick county, Kansas, on the first day of the next term thereof, to answer said charge."

In due time an information containing nine counts, specifying the deposits referred to in the complaint and warrant, was filed. The defendants were charged with permitting and conniving at receiving and accepting the deposits, knowing the bank...