State v. Tomblin

• Decision Date: 06 March 1897
• Parties: STATE v. TOMBLIN
• Court: Kansas Supreme Court

48 P. 144

57 Kan. 841

STATE v. TOMBLIN

Supreme Court of Kansas

March 6, 1897

Syllabus

1. On the trial of a criminal prosecution against a defendant charged with having received deposits as an officer of a bank, when the bank was insolvency, and he knew its insolvency, a challenge to a juror, who has a fixed opinion as to the solvency or insolvency of the bank at the time the deposits were received, should be sustained, it appearing that the questions as to the solvency of the bank, and the knowledge the defendant had as to its condition, were among the principal ones to be tried.

2. A defendant on trial, charged with a felony, has the right guarantied to him by the constitution to meet the witnesses produced by the state face to face, and it is error to admit over his objection, the deposition of a witness taken out of the state, when he was not personally present, containing important testimony, notwithstanding the fact that the deposition was taken on the application of the defendant on interrogatories prepared by his counsel for the state. By causing the deposition to be taken, the defendant did not irrevocably consent to its introduction in evidence.

3. A person charged with having received deposits, as an officer of a bank, when it was insolvent, is not guilty of a crime under section 16 of chapter 43 of the Laws of 1891, merely because through his negligence he does not know its condition; but it must be shown that when he received the deposits he knew the bank to be insolvent. But his relation to the bank, and his duty to examine into the condition of its affairs, and know whether it is solvent, may be taken into consideration by the jury in determining whether he had actual knowledge of its condition.

Appeal from district court, Sherman county; Charles W. Smith, Judge.

M.B. Tomblin was convicted of an offence, and appeals. Reversed.

Waters & Waters, for appellant.

L.C. Boyle, Atty. Gen., and John Hartzler, for the State.

OPINION

ALLEN, J.

The defendant was charged as president, director, and managing officer of the Sherman County Bank, a corporation organized under the laws of Kansas, with having received deposits of money when the bank was insolvent, knowing that it was in that condition. The information contains ten counts, five of which charge him as principal and the others as accessory. He was convicted as accessory under four counts of the information, and sentenced to four years’ imprisonment in the penitentiary, and to pay a fine of $2,000. From this judgment he appeals. Numerous errors are assigned in the brief. We shall consider only those questions decisive of the case and which might arise on a retrial.

George W. Edwards was called as a juror. On his examination he stated that he had talked with various persons about the case; that he had an opinion as to whether or not the bank was solvent at the time the deposits were received; that it would require evidence to remove it; that he might have expressed an opinion, though he could not say whether he had or not; that he would take the opinion he had with him into the jury box. Though he also said on further examination that he had not a settled conviction, he had such an opinion with reference to one of the principal issues in the case,— the solvency or insolvency of the bank,— as would render him incompetent as a juror. The court erred in overruling the challenge. A more important and prejudicial error, and the one on which a reversal of the judgment is mainly based, is in the admission of the deposition of E Lindsay, taken at St. Joseph, Mo., on written interrogatories prepared by counsel for the defendant and cross interrogatories by the state. The defendant had testified on the trial at length with reference to many matters, and, among others, that he went to the State National Bank in St. Joseph, and made arrangements for $5,000 more money if the bank should need it; that this...