Youmans v. State

• Citation: 66 S.E. 383,7 Ga.App. 101
• Decision Date: 09 November 1909
• Docket Number: (No. 1,882.)
• Parties: YOUMANS. v. STATE.
• Court: United States Court of Appeals (Georgia)

(7 Ga.App. 101)
66 S.E. 383

YOUMANS.
v.
STATE.

(No. 1, 882.)

Court of Appeals of Georgia.

Nov. 9, 1909.

Rehearing Denied Dec. 10, 1909.

1. Banks and Banking (§§ 63, 84^*)—Fraudulent Insolvency—Statutory Provisions —Repeal.

Section 39 of the sixth division of the Penal Code of 1833, as embodied in section 200 of the Penal Code of 1895, contemplates fraudulent insolvency as distinct from the failure of a bank to redeem its bills, and the insolvency of a bank caused by the intentional fraud of an officer having charge of its affairs may be visited upon the officer whose felonious fraud brought about the insolvency, whether the bank has issued bills or not. Insolvency and failure to redeem its bills is each the statement of a condition of affairs which, if shown to exist with reference to a chartered bank, raises the presumption that its affairs have been fraudulently mismanaged, and calls upon the defendant (if he is one charged with the administration of its affairs) to rebut this presumption that the insolvency was due to his conduct In the passage of the above-named act it was evidently the intention of the Legislature to state two conditions upon this point which would raise the presumption that a crime had been committed in the mismanagement of the bank— either insolvency or failure to redeem its bills.

(a) Section 206 of the Penal Code was not affected bv the passage of the act of 1893 (Acts 1893. p. 86), nor by the act of 1898 (Acts 1898. p. 73). It fills a place peculiarly its own, and does not impinge upon any other violations of the banking laws which are penalized.

[Ed. Note.—For other cases, see Banks and Banking, Dec. Dig. §§ 63, 84.*]

2. Banks and Banking (§ 84*)—Constitutional Law (§ 83*)—Fraudulent Insolvency—Prohibition of Imprisonment for Debt.

The president and directors of a bank are not punishable for its insolvency, but are crim-

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inally liable if the insolvency of the bank has been caused by their intentional fraudulent act. Mere mismanagement, resulting in the insolvency of a bank, is not punishable by law, but the insolvency which indicates intentional fraud or dishonesty on the part of those officers of a bank who are charged with its management, and which cannot be otherwise explained after full opportunity for explanation has been given, is properly punishable. The punishment imposed for wrecking a bank is not imprisonment for debt. It is not debt, but fraudulent conduct, which section 206 of the Penal Code of 1895 seeks to punish. Though in perpetrating a fraudulent practice upon another the perpetrator may become a debtor, it is still within the province of the law to punish him who may have been guilty of the fraudulent practice, notwithstanding he is at the time a debtor to him who was defrauded. The bank's insolvency for which the officer having its affairs in charge may be criminally liable is not that which results from mere debt, but that which was caused by fraudulent violations of the official's fiduciary trust.

[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 210. 211; Dec. Dig. § 84;* Constitutional Law, Cent. Dig. § 151%; Dec. Dig. § 83.*]

3. Constitutional Law (§ 55^2-*)—Courts (§ 217*)—Rules of Evidence—Certification of Questions to Supreme Court.

It is within the power of the Legislature to formulate rules of evidence, and therefore within the legislative power not only to legalize as evidence a presumption that the insolvency of a bank was caused by the fraudulent act of the officers directly charged with its affairs, but also to place upon such officers the burden of rebutting this presumption. There is no hardship in this rule to the official who has honestly, though unsuccessfully, administered the affairs of a bank.

(a) A constitutional question already answered by previous decisions of the Supreme Court will not be certified to obtain a repetition of the ruling.

[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. § 58; Dec. Dig. § 55;* Courts, Dec. Dig. § 217.*]

4. Banks and Banking (§ 85*)—Indictment and Information (§§ 93, 110*)—Fraudulent Insolvency—Indictment—Sufficiency — Common-Law and Statutory Offenses.

The indictment was sufficiently full and definite in its statement to inform the defendant of the offense with which he was charged, and exact enough to protect him from a second jeopardy. As only fraudulent insolvency is criminal, it should be charged that the bank for whose insolvency the officer may be prosecuted became fraudulently insolvent. A difference exists as between common-law crimes and statutory offenses in the necessity for fullness of statement in the accusation. Many statutory offenses can be stated in the language of the Code. As to many common-law offenses, a description of what the defendant actually did is necessary to make the charge plain and legally complete. "Where the offense is purely statutory, having no relation to the common law, it is, as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter, " with this fundamental qualification that the accused must be apprised with reasonable certainty of the nature of the accusation against him, and that an indictment not thus framed is defective, even though it follow the language of the stat ute. United States v. Simmons, 96 U. S. 360, 24 L. Ed. 819. There was no error in overruling the demurrer.

[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. § 212; Dec. Dig. § 85;* Indictment and Information, Cent. Dig. §§ 266, 289-294; Dec. Dig. §§ 93, 110.*]

(Syllabus by the Court.)

5. Banks and Banking (§ 73*) — "Insolvent."

To say that a bank is "insolvent" is simply to say that all of its assets are insufficient to meet its liabilities.

[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. § 154; Dec. Dig. § 73.*

For other definitions, see Words and Phrases, vol. 4, pp. 3647-3655; vol. 8, p. 7689.]

Error from Superior Court, Ware County; Frank Park, Judge.

G. R. Youmans was convicted under Pen. Code 1895, § 206, directed against the fraudulent insolvency of a bank, and he brings error. Affirmed.

W. G. Brantley, L. A. Wilson, W. W. Lambdin, W. M. Toomer, F. W. Dart, J. L Crawley, and W. F. Crawley, for plaintiff in error.

J. H. Thomas, Sol. Gen., and A. D. Gale, for the State.

RUSSELL, J. The plaintiff in error was charged by special presentment with the "offense of a felony, for the said George R. Youmans, on the twenty-third day of November, in the year of our Lord one thousand nine hundred and seven, in the county aforesaid, with force and arms and unlawfully, being then and there the president of the Bank of Waycross, a chartered bank incorporated under the laws of said state, and, as such officer of said chartered bank, he being by law charged with the fair and legal administration of its affairs, the said Bank of Waycross, then and there pending and during the said official charge and responsibility of the said George R. Youmans, did then and there be and become fraudulently insolvent, contrary to the laws of said state, the good order, peace and dignity thereof." The defendant demurrer to the indictment as being insufficient, and his demurrer was overruled. Failing to have the presentment quashed upon demurrer (which would have affected a final disposition of the case), he excepts to the judgment overruling his demurrer. There are 16 grounds of the demurrer, but these grounds are treated in the brief of plaintiff in error under six heads, stated as follows: "First. The grounds attacking the construction of the statute as claimed by the state, and showing that said statute relates only to banks of issue. Second. Grounds attacking said statute because the same was repealed, first, by Const. 1868, art. 1, $ 18, and second, by Const. 1877, art. 1, par. 21, prohibiting punishment for debt. Third. Grounds attacking the said statute because some is

[66 S.E. 385]

in violation of the constitutional inhibition against imprisonment for debt. Fourth. Grounds attacking the said statute because same was repealed by the act approved December 20, 1893 (Acts 1893, p. 66), providing a new code of laws for the circulation of notes by state banks. Fifth. Grounds attacking said statute and the indictment because in violation of the elementary principle that a union of act and intention or criminal negligence is necessary to constitute a crime, and no one of these elements is alleged against the defendant. Sixth. Grounds attacking the sufficiency of the indictment under any and all circumstances, and regardless of the construction given the statute." We think all of the objections to the indictment which are presented in the demurrer can be summarized under four heads, and shall so discuss them.

1. The stress of the argument of learned counsel for the plaintiff in error is principally addressed to the...