Carr v. State , 104 Ala. 4 ( 1893 )

McCLELLAN, J.

— There has been some conflict in the adjudged cases, but it may now well be considered as settled by the numerical and intrinsic weight of the decisions in other States, by an adjudication of this court, by the unanswerable argument of Mr. Moore in his work on Extradition and Inter-State Rendition, and finally by the- Supreme Court of the United States, that a fugitive from justice who has been surrendered by one State of the Union to another State, upon requisition charging him with the commission of a specific crime, has, under the--constitution and law of the United States, no right, privilege or immunity to be exempt from indictment and trial, in the State to which he is surrendered, for any other or different offense from that designated in the requisition without first being tried on the charge for which he was extradited, or having an opportunity to return to- the State from which he was extradited. — In re Noyes, 17 Albany L. J., 407 ; Ham v. State, 4 Tex. Ap. 645; State ex rel. Brown v. Stewart, 60 Wis. 587; Post v. Cross, 135 N. Y. 536; Commonwealth v. Wright, 33 N. E. Rep. 82; In re Miles, 52, Vt. 609 ; Ex parte Barker, 87 Ala. 4; 2 Moore on Extradition, §§ 642, 643, 644; Lascelles v. Georgian, 148 U. S. 537.

The, trial court, did not err, therefore, in.' putting the-defendant on trial in this .ease, notwithstanding the fact*— pmsehfed'by plea and other wisest hat’he had--been -sülírehdered. by'tkh' State of Iowa, oh another and' différ;ent clargé upon'Which he, had hot been tried and was. still being held.

The indictment in this case is drawn under, and pursues the language of, the act of December 12, 1892, “To prevent banks, bankers, firms, corporations, or other persons from receiving deposits of bank notes, specie money or other thing of value, when in a failing or insolvent condition,” and, averring that the defendant received from “Robert T. Abernathy for deposit three hundred and fifty-five dollars, lawful money, currency of the United States of America, a more particular description of said money being unknown to the grand jury,” &c., &e., it was not open to the demurrers interposed by the defendant which proceeded on the grounds that no value was alleged, and that the indictment failed to allege .a deposit of money or thing of value within the terms of the statute. The demurrer was properly overruled.— DuBois v. State, 50 Ala. 139 ; Duvall v. State, 63 Ala. 12.

The action of the trial court in denying a continuance of the case, as has long been well established, is not revisable by this court. — A. G. S. R. R. Co. v. Hill, 90 Ala. 71; s. c. 93 Ala. 514; Walker v. State, 91 Ala. 76.

The court erred in putting the juror Neff on the defendant . It is quite true that the court was under no duty to allow the defendant to further examine this juror, after his competency had been pronounced on the voir dire, with a view to showing a cause for challenge not brought to light by statutory interrogatories ; and hence it is that no error was committed in refusing to allow such further examination in respect of other jurors. — Bales v. State, 63 Ala. 30 ; 12 Amer. & Eng. Encyc. of Law, p. 358 ; Hawes v. State, 88 Ala. 37, 66; Lundy v. State, 91 Ala. 100. But the trial judge did permit this examination in reference to Neff, and it was developed thereby that he had been a witness before the grand jury in a case against the defendant similar to this and’ had a like case to this — that is, a prosecution against the defendant for receiving from him, Neff, money on deposit after the defendant knew or had good reason to believe his bank was insolvent or in a failing condition — then pending in the - court, and that he believed that defendant was guilty in that case in which .he, the juror, was a witness, and in which, if there was a conviction, Neff would recover, by way of a fine, the amount of his deposit. It can not be conceived on this state of facts that Neff could have been such im-partial juror as the constitution guaranteed to the defendant in respect of the main issue common to both cases, namely, whether when the deposits were received the defendant knew or had good reason to believe the banking partnership of which he was a member was in a failing or insolvent condition. The juror should have been discharged on the defendant’s challenge for cause. 12 Amer. & Eng. Encyc. of Law, pp. 350 et seq; Smith v. State, 55 Ala. 1.

The body of the statute, (Acts of 1892-93, p. 95), under which this indictment was found is in the following language : “Section 1. Be it enacted by the General Assembly of Alabama, That any president, cashier or other officer, by whatever title he may be called or known, of any bank, banking firm or corporation engaged in a banking business, or any other person or persons, engaged in said business, or the agent or agents thereof, who shall receive for deposit any bank notes, specie money or other thing of value, knowing at the time said deposit is received, or having good cause to believe, that such bank, banking firm, corporation, person or persons, are in a failing or insolvent condition, shall for each offense be deemed guilty of a misdemeanor, and on conviction thereof, be fined not less than double the amount of said deposit.

“Sec. 2. Beit further enacted, That in all convictions under this act, the fine shall be paid in lawful money of the United States only, one-half of which shall go to the person who made the deposit.

“Sec. 3. Be it further enacted, That the payment back to the depositor of the bank-notes, specie money or other thing of value, deposited before the conviction hereunder, and the court costs thereof, which may have accumulated, shall be a good and lawful defense to any prosecution under this act.”

The evidence showed that defendant and his wife, as partners, carried on a banking business in Colbert county, Ala., under the name and style of “Tuscumbia Banking Company;” that the defendant was the managing and controlling member of said firm, and that one Harrington was the agent of said firm, and acting cashier and book-keeper thereof, at the time^the deposit involved here was made. It was also made to appear that on thé day said deposit .was made the defendant was away from! Tuscumbia, the town where the business was being carried on, and that the deposit was received by said Harrington for the Tuscumbia Banking Company. On these facts it is contended by the defendant, through objections to and motions to exclude testimony and requests for instructions, that he did not receive the deposit alleged in the indictment, and should be acquitted on the uncontroverted evidence; the theory of the defense in this regard being that no other than a direct, personal, manual receipt of deposits can fill the terms of the enactment. There is nothing in this position. The defendant, as a member and manager of the firm called the Tuscumbia Banking Company, carried on the business of banking at Tuscumbia ; he thereby, so long as the bank was kept open, invited the public, and Robert J. Abernathy as one of the public, to make deposits with said firm ; whether present or absent personally, he provided means for the acceptance of this invitation, by the employment of Harrington to take possession of deposits tendered in consequence of it for him, and the act of Harrington in so doing is his act as fully in every sense as if he had performed it by his own hands; and this wholly regardless of all considerations as to whether Harrington himself might be held in criminal responsibility for his act as agent. The receipt of the deposit was in the usual course of the business, which the defendant carried on and kept open for the very purpose, among others perhaps, of receiving on deposit the funds of other persons, and no matter what agencies he employed he is guilty under the statute if he at the time knew, or had good cause to believe, that the Tuscumbia Banking Company was in a failing or insolvent condition. — 1 Morse on Banks & Banking, § 178; 1 Whart. Cr. Law, § 247; 2 lb. § 1503; State v. Caldwell et al., 79 Iowa, 432. And equally untenable is the position, advanced in objections and requests for charges, that the defendant could not be convicted because the business was- conducted, under the name of the. Tuscumbia Bank.ing-Co., or as a firm. ..

Several of the charges requested were to the effect.that' Carr-could, not -be convicted-unless he .authorized Harrington to receive this deposit from Abernathy. Of course it-was essential that Harrington should, be shown to have acted in the matter by authority of the firm or Carr; but it was by no means necessary to show that he had any specific authority to receive this particular deposit, as the manifest tendency of these charges was to induce tlie jury to conclude. They were, therefore, obviously misleading.

It is wholly immaterial under this indictment how the Tuscumbia Banking Company came to be in a failing or insolvent condition — whether through- the misfeasance or malfeasance of the defendant, or through business disasters involving nothing reprehensible on his part, or through depreciation in value of assets incident to the general monetary condition of the'country. The point of sole inquiry is as to the fact of insolvency or “failing and insolvent condition,” and the defendant’s knowledge thereof, or his having good reason to so believe, at the time of deposit made. And it is' obviously also beyond the issue whether the insolvency consists in inability to pay depositors only or'to pay other liabilities, or other liabilities and depositors. These considerations dispose of the exceptions reserved to the refusal of the trial court to give many of the charges requested by the defendant.

Of course, if the insolvency of the banking company resulted from the depreciation of property after the alleged deposit was made, the defendant could not be convicted of receiving the deposit; the statute has reference to a failing or insolvent condition existing at the time when the deposit is made. But the charges requested on this point were properly refused because there was no evidence that the insolvency, if it existed at all, resulted from depreciation of property subsequent to Abernathy’s deposit; they were abstract.

Charge 32 requested by the defendant, to-wit, “If the jury believe from the evidence that the act of receiving the deposit of $355.00 was a lawful act, then the defendant is not guilty,” submits the whole case both on the law and the facts to the jury. In our jurisprudence juries are not the judges and triers of the law, but of the -facets only.

Two charges were given at the request of the State, and each of them is patently bad under- the decisions- of this court, in that they severally' authorize a conviction ' ■■upon'the'mere'belief by the"'ju'r'y.' of tlie"facts' 'necé'ss'a'ry td make out the cáse íof 'the Staté'without' regard".fb. the degree of their belief, i. e., whether they so -believe, her yond a reasonable doubt. — Pierson v. State, 99 Ala. 148 ; Rhea v. State, 100 Ala. 119.

If there was error in allowing the witness Harrington to testify that Mrs. Carr signed the name “Tuscumbia Banking Company” to the deed of assignment of June 10, 1893, instead of calling an attesting witness to that signature, or in allowing the witness Sampson to depose to ’ the contents of the mortgage covering the bank building without introducing the probated mortgage, the error was cured in the first case by subsequent proof by an attesting witness of the execution of the assignment and the introduction of the deed in evidence, and in the other case, by the subsequent introduction of the acknowledged and recorded mortgage.

Some other exceptions to the rulings of the court on the admission of testimony and in respect of charges requested by the defendant are presented by this record, but they are so patently without merit we do not consider it necessary to discuss them.

For the errors which we have pointed out, the judgment must be reversed. The cause will be remanded.

Reversed and remanded.