State v. Walser

• Decision Date: 31 December 1927
• Docket Number: 27934
• Citation: 1 S.W.2d 147,318 Mo. 833
• Parties: The State v. D. F. Walser, Sr., Appellant
• Court: Missouri Supreme Court

1 S.W.2d 147

318 Mo. 833

The State v. D. F. Walser, Sr., Appellant

No. 27934

Supreme Court of Missouri

December 31, 1927

As Modified January 25, 1927.

Appeal from Dunklin Circuit Court; Hon. Frank Kelly, Judge.

Reversed and remanded.

Munger Munger & Farris, Smith & Zimmerman and Ward & Reeves for appellant.

(1) The court erred in admission and rejection of testimony. (a) State's witness Herman Wolfson was permitted to give his opinion and conclusion that the "bank went broke;" that "it was insolvent;" and the court refused to permit the defendant to state that the bank, at the time it was closed, was solvent. Whether the bank was solvent or insolvent was a question of fact for the jury and not to be given as a conclusion by the witness. State v Hewitt, 259 S.W. 733; State v. Dengel, 248 S.W 603; State v. Comer, 247 S.W. 179; State v. Hayes, 247 S.W. 165; State v. Bowman, 213 S.W. 64; State v. Davis, 225 S.W. 707; State v. Gates, 130 Mo. 351; State v. Foley, 144 Mo. 600. The same witness was asked on cross-examination if the bank was not open on Saturday, December 22, 1924, because he understood the bank was solvent; and if they did not have a meeting of the board of directors and all agreed that the bank was solvent. This was competent on two theories: it was cross-examination on the testimony that the court permitted the witness to give that the bank was insolvent (this being the last day the bank was open), and if the board, after going over the affairs of the bank, considered it solvent it was reasonable that the defendant had the same opinion and tended to prove that he had no knowledge that the bank was insolvent when the deposit was taken. (b) Bank commissioner Gloriod was permitted to testify as to the value of property belonging to the bank, viz., bonds, bank fixtures and the value of land in Shelby County, without laying any foundation for this expert testimony, or showing that he was qualified to speak as to the value of this property. A witness cannot fix the value of property in dispute without first showing that he is qualified and knows something of the value of such property. State v. Sattley, 131 Mo. 486; Anderson v. Wheeler, 125 Mo.App. 406; Schrodt v. City, 109 Mo. 627; N. Y. Mining Syndicate v. Fraser, 130 U.S. 611; State v. Sanford, 297 S.W. 73. (c) It was error to permit witnesses for the state to testify that they had not collected the notes belonging to the bank. They were not asked and did not give the facts as to what effort they had made to collect these notes; the time they had the notes for collection was long after the bank had closed; what some witness did or did not do in regard to collecting the notes of the bank after it closed proved none of the issues in this case. (b) One of the notes held by the bank was that of Dooley, president of the Drovers National Bank of St. Louis. Sometime during the summer of 1924 Dooley went into bankruptcy, and to show that his note was not good witness was permitted to show what he had seen on the bankrupt schedule of Dooley's property. This was incompetent: it was not the best evidence; it was too remote in time, and the note was secured by Drovers National Bank stock. State v. Salmon, 216 Mo. 524. (e) Witness Krebs was permitted to testify that checks drawn by persons on the Bank of Puxico which he had for collection were not paid, and that he had protested them, without any showing that the parties who drew these checks had a balance in the Bank of Puxico to take up same. This is especially incompetent in view of his cross-examination to the effect that he did not know whether the parties drawing the checks had any money in the bank or not. (f) The State proved by witness Lufcy, over defendant's objection, that defendant in June, 1924, went in bankruptcy and what his estate consisted of, what claims were allowed against it, and how much the estate would pay the creditors. This is reversible error, because the State proved that defendant had conveyed his property to the bank; Walser had $ 70,000 interest in the Bank of Puxico that he lost; and the time was too remote. (g) The State was permitted to prove, without laying any foundation, and the witness stating that he did not know the market value, the witness's guess as to what was the value of a list of notes questioned by the State. The witness showed he was not qualified and that he did not know the market value, but was permitted to answer the questions. This witness's testimony was all incompetent, because he did not qualify, most of this paper was secured, yet the question did not incorporate the value of the note with its security; and the insolvency of the bank in a criminal prosecution could not be established by showing what its paper would sell for on the market. State v. Sattley, 131 Mo. 486. (2) The court erred in instructions given. (a) Instruction 4, to the effect that the failure of the Bank of Puxico was prima-facie evidence that the bank was insolvent and in failing circumstances, and prima-facie evidence that the defendant had knowledge that the bank was insolvent and in failing circumstances, and such prima-facie evidence raised such a degree of probability in its favor that it must prevail unless it is rebutted or the contrary proved, is erroneous, because (a) it bases the right of the State to recover upon this presumption, when the State did not rely upon the presumption but put in "all the facts" tending to show that the bank was insolvent and the defendant knew it, and (b) it put the burden upon the defendant to meet and overcome not only the proof in the case but the presumption as well. When all the facts come in the State cannot rely on a presumption for presumptions give way to facts. State v. Swearengin, 269 Mo. 177; State v. Willard, 192 S.W. 437; State v. Swarens, 241 S.W. 434; State v. Tracy, 243 S.W. 173; State v. Hogan, 252 S.W. 387; State v. Frame, 204 S.W. 10; State v. Solon, 207 S.W. 782; State v. Burns, 213 S.W. 116. It is error, even in civil cases, in an instruction to permit a recovery by plaintiff upon presumption, when the facts are proven in the trial, since presumptions give way to facts. Mockowik v. Ry., 196 Mo. 571; Guthrie v. Holmes, 272 Mo. 233; Sowder v. Ry., 127 Mo.App. 119; Hurk v. Ry., 252 Mo. 48. (b) Instruction 6, to the effect that the State makes a prima-facie case that the bank was insolvent and defendant knew same, by showing failure of the bank, but the burden of proof is not changed, and then says, "but the defendant can show the condition of the bank and the circumstances pending the failure and any fact tending to exonerate him from criminal liability," etc., is erroneous and highly prejudicial. State v. Salmon, 216 Mo. 527; State v. Sanford, 297 S.W. 78. (c) Instruction 14 was offered by the defendant without the words "in good faith honestly." Said instruction was refused as offered, and the court wrote in the typewritten instruction in his handwriting, after the expression "at the time he received said deposit" these words, "in good faith honestly," and such instruction as thus amended is erroneous because (a) defendant is not guilty if he believes that the bank was solvent when he accepted the deposit, and the words "in good faith honestly" tended to raise some suspicion that the defendant did not believe the bank was solvent, and placed upon the defendant a burden not required by law.

North T. Gentry, Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for respondent.

Davis, C. Higbee and Henwood, CC., concur.

OPINION

DAVIS

Defendant was indicted by the grand jury of Stoddard County on the charge of receiving, on December 19, 1923, more than thirty dollars on deposit in the Bank of Puxico, knowing it to be insolvent and in a failing condition. The indictment comprised two counts, the first of which was dismissed, defendant being put to trial on the second count. On motion the venue was changed to Dunklin County, two trials being had, the first resulting in a hung jury and the second in the conviction of the defendant, and a sentence of two years in the penitentiary, from which an appeal was perfected.

Inasmuch as defendant does not challenge the want of evidence to support the judgment, it is unnecessary to detail the evidence. It is sufficient to say that the evidence in behalf of the prosecution warrants the finding that the Bank of Puxico closed its doors on Monday, December 24, 1923. For more than three years previous defendant had been president of the bank, succeeding to the office after years of service as cashier. On December 19, 1923, Dr. Page, a customer, deposited in the bank, defendant personally taking the deposit, a check drawn in his favor on the Bank of Puxico for $ 295.85. On Saturday, December 22, 1923, representatives of St. Louis banks met at the home of defendant, who was ill, and tentatively agreed to loan the Bank of Puxico $ 30,000, advancing $ 12,000 and taking collateral notes of the face value of about $ 74,000 as security. Upon information to the St. Louis banks that the Bank of Puxico needed more than $ 30,000 to tide it over, the St. Louis banks refused further aid, resulting that the Bank of Puxico closed its doors on the following Monday. The bank was capitalized for $ 25,000. The evidence for the State was of sufficient import to permit the jury to find that at the time Dr. Page made the deposit in the Bank of Puxico the defendant knew the bank was insolvent and in failing circumstances. Further facts relating to the issues discussed will be appropriately noted.

The cause was tried and motion for new trial filed before Section 4079, as amended, Laws 1925, page 198, became effective. Hence we are relegated to the applicable procedure as heretofore obtaining.

I. (a) Over the...