Fleming v. State

<p>1.—Illegal Deposit—Bank President—Statutes Construed.</p> <p>Under the Act of the Twenty-fifth Legislature, page 130, it is necessary that the indictment should charge the particular named officer with a violation of said statutes, and that such officer received or assented to receive a deposit of money or other valuable thing into the hank of which he is an officer, knowing at the time of the deposit that the bank was insolvent or in failing circumstances, and that he either received this in person or assented thereto with the intention not to return the money.</p> <p>2. —Same—Indictment—Insolvency—Deposit.</p> <p>Where, in a prosecution of an illegal deposit in a bank, the indictment did not allege affirmatively that the bank was insolvent at the time of the reception of the deposit, and did not aver that the alleged check was in such condition as to become a deposit in the bank to the credit of the bank, or that it was transferred to the bank as a deposit, the same was insufficient. Qualifying Roby v. State, 41 Texas Grim. Rep., 152. Prendergast, Judge, dissenting.</p> <p>3. —Same—Insolvency of Bank—Insufficiency of the Evidence.</p> <p>Where, upon trial for receiving an illegal deposit in a bank, the evidence showed that the bank was thoroughly investigated at the time of its alleged insolvency, and that the bank officers, directors and attorneys were all of the opinion that the bank was solvent under the law at the time of the alleged deposit, and that the bank was solvent from the standpoint of its assets in excess of its liabilities. Held, that the State failed to prove insolvency of the bank. Prendergast, Judge, expressing no opinion.</p> <p>4. —Same—Solvency—Evidence—Receiver—Insolvency.</p> <p>Where, upon trial of an illegal bank deposit, it was shown that the bank at the time of said deposit and at the time it closed its doors on the day alleged in the indictment was solvent, it was error to admit the testimony of the receiver long after said date as to the insolvency of said bank, and to admit in evidence his account of the condition of said bank, as this was not a criterion of its solvency.</p> <p>5. —Same—Charge of Court—Insolvency—Railing Circumstances—Cash Value.</p> <p>Upon trial of illegally receiving a bank deposit, a charge of the court, that a bank is not insolvent or not in failing circumstances if it has sufficient assets realizable in cash value to meet its liabilities as they fall due in the ordinary .course of business, treating them as an ordinarily prudent person would ordinarily conduct his business, was reversible error.</p> <p>6. —Same—Solvency—Requested. Charge.</p> <p>Upon trial of receiving an illegal bank deposit, it was reversible error not to submit a requested charge that if the jury had a reasonable doubt concerning the alleged bank, on the date of the alleged deposit, that it owned and held assets to pay its debts within a reasonable time, in the ordinary course of business under the conditions existing, then said bank was not insolvent or in failing circumstances within the meaning of the law.</p> <p>7. —Same—Charge of Court—Insolvency—Railing Circumstances.</p> <p>Where, upon trial for receiving an illegal bank deposit, the court’s, charge presented the wrong criterion and 'gave erroneous instructions as to what insolvency means, and as to what in failing circumstances mean, and that the requested instructions presented the better and sounder rule, which the court refused to submit, there was reversible error.</p> <p>8. —Same—Knowledge of Defendant—Insufficiency of the Evidence.</p> <p>Where, upon trial of receiving an illegal bank deposit, the evidence showed that the defendant knew nothing about said deposit and never heard of it until subsequent to the bank closing and after it had ceased to operate, the conviction could not be sustained. Prendergast, Judge, expressing no opinion.</p> <p>9. —Same—Statutes Construed—Rraudulent Intent.</p> <p>In order to hold an officer of the bank criminally responsible under the law, there must he some evidence of fraud on his part, and in connection with the knowledge of the fact that the bank is insolvent there must be a purpose' on his part in receiving deposits to place the depositor in such position that he would thereby lose his money; and the Act of the Legislature in order to make it consistent with our criminal jurisprudence must be so construed, and words importing such construction must be read into said statutes. Prendergast, Judge, dissenting.</p> <p>10.—Same—Change of Venue—Prejudice.</p> <p>Where, upon trial of receiving an illegal bank deposit, the evidence showed that the county of the prosecution was thoroughly canvassed by opposing candidates for office, and the matter, of defendant’s alleged dereliction was discussed from one end of said county to the other, and was made the turning point in said race for office, and whether defendant should be indicted, etc., a change of venue should have been granted.</p>