Ellis v. State , 138 Wis. 513 ( 1909 )

Marshall, J.

In the foregoing statement we have avoided going into details or dealing much with figures, except in the way of generalizations. There is such a r~ ass of things in the record that any attempt to state it in detail would fail of accomplishing any valuable purpose and probably would leave the situation more or less involved in confusion.

The legal questions are few in number and will be presented in their logical order.

The fact that the deposit relied upon in the second count in the indictment was a check does not militate against its satisfying the call of sec. 4541, Stats. (1898), for a deposit of money. True, the check, as it went over the counter, was not money, but it was treated as such between the bank and its customer. It was taken as the equivalent of money at the face value. The money equivalent was placed to the credit of the depositor the same, in all respects, as if legal tender money had been passed over the counter. The relation of debtor and creditor, as between the bank and the depositor, with the characterization of liability on the one side and expectancy on the other as to payment on demand at any time during banic-ing hours, was created. In short, the transaction, in practical effect, was the same as if the hank had passed to its customer $1,000 for the check and he had immediately passed the same hack for deposit and received credit therefor. ■

The foregoing, in the opinion of the court, is in harmony with — and really required by the rule of stare decisis on account of—State v. Shove, 96 Wis. 1, 70 N. W. 312. We cannot appreciate that there is any difference between passing a certificate of deposit on a bank over its counter for credit or a renewal, the presumption being that money equivalent for such certificate is on hand to be passed out in exchange for the paper if desired, and passing over the counter a certificate of deposit or check or bill of exchange on another bank, which is taken as so much money in the ordinary course of business, the money itself being, presumably, present to he transmitted, if desired, in exchange for the paper. To say there is a difference in the two situations would, in our opinion, be trifling with the statute.

It is confessed that the indictment, in substance and practical effect, is the same as in State v. Shove, supra, but insisted that, as no point was made on the sufficiency of the charge in such case, the way is clear for a challenge in that regard now. 'Granted, for the purpose of the discussion. The following defects are now suggested: (a) It does not appear from the charge that the bank became the debtor of the depositor named in the first count, (b) It does not appear that the deposit consisted of money, (c) It does not appear that Ellis received the deposit for the bank.

The requisite of the statute as to (a) and (b), so far as is necessary to this case, is acceptance or reception on deposit of money tendered for that purpose by a customer. That is plainly charged in the first count in the language of the statute, and is likewise so charged in the second, in the light of what we have said as to the reception of the check as money, being tbe same as if tbe thing passed over the counter bad been money, in fact.

(c) Tbe claim that tbe indictment does not show that tbe accused acted, in receiving tbe deposits, for tbe bank, seems to be without meifit. After charging receipt of money on deposit, in tbe one case, and the check in the other, the language of .the indictment, as to each, is, substantially, that the accused was, at the time of receiving tbe deposit, tbe president of tbe bank and the money was accepted and received into tbe bank on deposit. What more is needed ? We cannot- discover anything wanting.

The fact that tbe customer mentioned in the first count was indebted to tbe bank at tbe time be made bis deposit, especially, since tbe indebtedness was not presently due, does not militate against tbe receipt of the money satisfying the statute as to that element. Tbe credit created by the deposit was at tbe customer’s disposal immediately upon its creation. Tbe status of the accused was fixed, as regards guilt under tbe statute, tbe instant the deposit was accepted as creating a credit, liable to be called for at once, and was not subject to change by maturity of the depositor’s indebtedness thereafter, before tbe bank closed, so as to absorb a part or the whole of it Had the deposit been made on account of tbe indebtedness about to mature, and to be applied thereon, or made on account of an overdraft, so as to operate to discharge the depositor’s indebtedness to tbe bank, tbe case would be far different. True, it would be absurd to bold that a deposit, in form, which, in practical effect, is only payment of an indebtedness on an overdrawn account, would satisfy tbe statutory call for a deposit of money or other thing used as money and subject to be recalled in money. Such call contemplates a deposit such as will create tbe relation of debtor and creditor between tbe parties, or bailor and bailee, or the relation of principal and agent, the former only being material to this case.

A witness who, upon the voir dire, was supposed to have shown special knowledge of the character of commercial paper made by parties in the city of Ashland and its vicinity, was permitted to give his opinion, generally, of the value of specific pieces of paper mentioned to him, about the time of the occurrences, material to the case. He was not asked as to whether he knew the reputation of the maker or indorser of' the paper as to solvency, but as to the value of the paper as a commodity in the community, from the standpoint of whether the parties named, to the knowledge of the witness, had any property out of which the same could he collected. He stated,, definitely, that his testimony was based, not on knowledge of' whether the parties possessed property or not, hut on ignorance of whether they had any. The motion made to strike out such testimony should have been granted. True, if the witness had shown, with any degree of fairness, on the voir dire, that he knew the reputation of the mahers of the paper for solvency, he might have been permitted to testify to such reputation. True, evidence of the general reputation of a person for financial responsibility is relevant on the question of his solvency. That does not seem to have been directly passed upon by this court, but it has by many, and may he said to be-entirely settled, though not by universal authority. We will not go into the subject at length but state, with approval, that the rule is as indicated. The following are a sample of a multitude of judicial authorities on the subject: Hahn v. Penney, 60 Minn. 487, 490, 62 N. W. 1129; West v. St. Paul Nat. Bank, 54 Minn. 466, 56 N. W. 54; Angell v. Rosenbury, 12 Mich. 241; Bank of Middlebury v. Rutland, 33 Vt. 414.

The evidence discussed was not of the character of opinion, evidence as to reputableness for solvency. True, on cross-examination there was some evidence from the witness that he-testified, from reputation, as to the financial standing of one maker of a note brought to his attention, but, in general, his evidence was confined to opinions on the basis before indicated. He gave no evidence that he, in fact, knew whether the debtor had property or not. On the whole, it seems that the evidence was not relevant. It did not approach near enough to the real point at issue to have sufficient probative force to be within the realms of competency. Therefore, in the opinion of the court, it should have been stricken out as indicated.

Complaint is made because the court permitted much evidence as regards financial condition of debtors of the bank, particularly the proprietors, long after the suspension, witli-mit direct proof that the same condition existed at the time of the occurrences charged in the indictment. A judgment against the accused for $32,526.33 in favor of the receiver of the bank, rendered some six months after the suspension, covering substantially all the liabilities of the accused to the bank, was received. Similar proof was made as to other debts to the hank in connection with evidence of unsuccessful efforts to •collect on the judgments. Much of this evidence, so far as direct effect was concerned, related' to the condition of things from six months to some over a year after the deposits were .alleged to have been 'wrongfully received.

It is an elementary, principle of evidence that, as a general rule, presumptions do not run backward; that while “when the existence of a person, a personal relation, or state of things is once established by proof, the law presumes that the person, personal relation, or state of things continues to exist as before, until the contrary is shown, or until a different presumption is raised from the nature of the subject in question” (State ex rel. Milwaukee Med. Coll. v. Chittenden, 127 Wis. 468, 107 N. W. 500; 1 Greenl. Ev. § 41),—there is no retroactive evidentiary inference, especially reaching backward, materially. So, proof of insanity or insolvency at a particular time, is not competent to prove, on the principle of natural and probable relation, the same condition a considerable, period prior thereto. But the question of whether a circumstance is of sufficient probative force to have the dignity of a legal presumption of fact, establishing the matter in controversy, prima facie, as in ease of the rule stated, is one thing, and that of whether it is so utterly void of probative power as to be outside the realms of competency and so irrelevant, is quite another.

It must be conceded that, while evidence of the character of that in question might not establish a condition which would raise a legal presumption running backward, if the condition were not too remote it would not be entirely without evidentiary consequence. Such consequence might be considerable under some circumstances. Eor instance, in case of proof of entire want of assets to meet liabilities a few days after the particular time vital to a controversy. It would, necessarily, diminish in weight, according to remoteness, and eventually become so shadowy as to pass into the realms of conjecture, and so outside the field of competency, thereby becoming wholly irrelevant. Within a considerable field, the primary question, as to admissibility, would be one of competency, in which field, as in all others where the trial court is required to determine matters of fact, there is a broad range for the exercise of judgment, in which the trial court is quite supreme, so much so, that its rulings should not be disturbed unless clearly wrong. Emery v. State, 101 Wis. 627, 648, 78 N. W. 145; Johnson v. State, 129 Wis. 146, 152, 108 N. W. 55.

It is the opinion of the court that considerable of the evidence objected to was improperly received under the principles suggested; particularly, judgments against persons who, before the suspension, divested themselves of all of their property, by turning it over to the bank on account' of the very indebtedness represented by the judgments subsequently rendered, and, further, in view of the failure of counsel to make good the pledge given to the court at the time the. evidence was received, that evidence would be offered that there had not been any substantial change in the financial condition of tiie persons, to whose status the remote evidence related, from the time of the occurrences charged in the indictment down to the time of the remote condition proved, or attempted to he proved. These general observations are all that seems necessary on this branch of the case.

The trial court gave instructions excepted to, and refused to give instructions requested, upon the theory that, the value of the property of the land company turned over to the bank, on account of liabilities of the stockholders, in the main, February 3, 1904, could not be considered on the question of whether the bank was unsafe or insolvent to the knowledge, or with good reason for knowledge, on the part of the accused, at any time prior to such date, but could be from and thereafter. That, it seems, was manifestly wrong, and a wrong which, quite likely, was fatal to the accused, as to the first and second counts, inasmuch as, while the accused was acquitted as to the circumstance that happened a few days after the land company’s properly was turned over to the bank, he was convicted as to that which happened the day before and the one which happened five days before.

It seems that, aside from the interest which Mrs. Loranger and Mrs. Kennedy had in the land company, such company’s property, from a legal standpoint, was behind the liability of the debtor stockholders of the bank, substantially the same on the 29th day of January, 1904, as on the subsequent dates material to the case. Since there was an understanding prior to the 29th, to which Mrs. Loranger and Mrs. Kennedy were parties, that all the land company’s property should be turned over to the bank on account of the liabilities of the stockholders thereto to strengthen its resources, and particularly as the accused had, as it seems, sufficient influence with his associates to secure their co-operation as to anything he desired done to strengthen the bank, — he had substantially the same reason on January 29 to consider the value of the land company property with reference to the ■solvency of the bank, as at any later time. In the light of the result of the trial as to the third count in the indictment, it seems reasonably certain that had the case been presented to the jury in this way, there would have been a verdict of not .guilty on all the charges. There can hardly be any mistake about that in view of the undisputed evidence that, considering the land company property, the cash value of the bank .assets, at the times in question, as the accused had a right to view them, exceeded the liabilities to depositors by about forty per cent.

On the question of whether there was the excess stated, we have little or no doubt. We have checked over carefully the claim in that regard by counsel for the accused, and find it substantially correct. There is no substantial claim to the contrary in the brief of counsel for defendant in error. On the oral argument counsel were pointedly challenged in respect thereto several times from the bench, and, while they did not concede there was such excess, their attitude was such as to suggest, very strongly, that they were not prepared to more than deny that there were assets of a convertible character sufficient to enable the bank to meet its liabilities in the ordinary course of business, or enough to pay anywhere near all the debts, as it turned out.

The latter condition mentioned is not very persuasive as to the condition of mind of the accused, or the knowledge he ¡should have had on the 29th day of January, 1904. It is a matter of common knowledge that assets in the hands of a .going banking concern are regarded very differently from the same assets, upon the bank going into forced liquidation. The change of circumstances is quite likely to depreciate the value of the securities to a very marked degree.

The learned trial court charged the jury, over and over again, that whether the bank was insolvent on the particular days material to the case, turned on whether it had sufficient assets to meet its liabilities in the ordinary course of business, and whether the accused at such time had good reason to know the hank was unsafe or insolvent, was whether he had such reason to know it did not possess sufficient assets to pay all its-liabilities as they matured and became payable in the ordinary course of business. On the other hand the learned court-refused to instruct the jury that the statutory test was-whether the fair value of the assets on the particular days-named was sufficient to cover the liabilities, exclusive of liabilities to stockholders.

In view of the situation that, according to the undisputed proof, there was an excess of assets over liabilities, within the-rule requested to be given to the jury, the error in refusing such request, if there were error in that regard, was prejudicial in the highest degree, since such request, in view of the-evidence, was, in effect, one to render a verdict in favor of the accused.

There is no question but-that insolvency, as the subject is dealt with under the insolvent and bankrupt laws, regarding a condition where, by the theory of such laws, the person or concern should suspend and take such measures or submit to-such, for the protection of creditors, as to insure equality of' treatment, is as the court instructed the jury. That is the limited, not the common, popular, or general meaning of the term. The latter suggests, merely, a substantial deficiency off assets to cover liabilities. In a multitude of authorities involving administration of bankrupt and insolvent laws and. situations properly classible therewith, authorities mainly relied upon by the prosecution, insolvency is viewed in the limited sense, while the general sense is universally conceded to-be as indicated. So it will be seen that a bank may be insolvent in the limited sense and clearly not in the broad general sense.

Must the limited meaning be given to the term “unsafe or-insolvent” as used in the statute ? Is it true that, under all circumstances, the proprietors of a bank, though believing-they Rave an abundance of assets to pay out within a reasonable time all liabilities to depositors, must close the doors and go into liquidation whenever they Rave good reason to know they will, or probably may, not be able to pay all demands upon the bank in the usual course of business, and that every moment of time they keep open for business thereafter they are criminals before the law and liable to be prosecuted and punished by long terms of confinement in the state prison? If such is the law, the banking business is exceedingly unattractive and the more conscientious the banker is, the less attractive it is.

It must be seen, at once, that the statute is open to construction. The words used have the two well known and widely different meanings. By the familiar rule that, in general, the common, ordinary meaning of words in a law is to be taken as the one intended by the legislature, we must discover some efficient reason for holding that it did not have „ in mind, in enacting the law in question, the one which the learned trial court rejected.

While it is reasoned by some courts that the mischiefs to be guarded against by such legislation suggest the limited meaning as intended, such reasoning is not satisfactory and is not in accord with the reasoning of other just as respectable courts holding to the contrary view.

There is no more legitimate business than that of banking. There are laws for the promotion of it, beneficial to those engaged therein and their patrons, in.every civilized nation on earth. Our laws contemplate that all but a small proportion of the deposits in a state bank and all of its capital stock may be loaned for considerable periods of time and quite a proportion on real-estate security. It is permitted to put twenty-five per cent, of its capital and surplus into banking house and fixtures. It is permitted to loan fifty per cent, .of capital, surplus and deposits upon real-estate security, and without limit in this and adjoining states when authorized by a resolution of two thirds of the hoard of directors. There is a legal limit upon the amount that may be loaned directly to one person, but there is no limit whatever as to indirect loans, and no limit as to loaning on approved security to a single borrower, short of the whole capital stock and surplus, in case of two thirds of the directors consenting thereto by a duly recorded vote. There is no limit as to time upon which loans may be made. Notwithstanding this broad discretion the law only requires a reserve on hand in cash, either in bank or available in correspondent reserve banks, of fifteen per cent, of the deposits.

In the situation indicated, would it be reasonable to suppose that a bank must, at all events, be prepared to pay every one who calls his credit in the usual course of business under peril of the severe punishment provided in sec. 4541, Stats. (1898) ? Must persons engaged in such business, while not going outside the permitted methods with bad intent, upon every occasion of their competency to pay in the usual coxirse of business being challenged, regardless of competency to pay ultimately, be conscious of drifting within the shades of prison walls; into realms of everlasting disgrace for themselves and their families ? The very picture, not at all overdrawn it is thought, suggests, most forcibly, that such a meaning as the learned trial court attributed to the statute would lead to the most absurd results. That of itself would require rejection of such meaning, there being another perfectly reasonable, and a fairly, at least, appropriate one.

The reason for not adopting the drastic meaning attributed to the statute by the trial judge, suggested from tb.Q viewpoint of the banker, is reinforced by one quite as persuasive from the point of view of patrons of a bank. It is a matter of common knowledge that liquidation of a bank in insolvency proceedings is inevitably attended with, great losses which commonly fall on the depositors. So when a banker stands face to face with a condition of probable inability, merely to j>ay all liabilities “in the ordinary course of business,” he knows that to go into liquidation, unless that is absolutely necessary, is inviting disaster for the depositor often in far greater measure than to persist in going on. Premature suspension or unnecessary suspension often is the very worst thing that could happen to the persons the statute is designed to protect. In that situation, if the statute were construed as the counsel for defendant in error contend it should be, the fabled position of most unfortunate danger would be quite real, the banker while bending all his energies to perform his duty of avoiding danger on the one side would be quite likely to fall into a still greater danger on the other. Avoiding Scylla, he would fall into Charybdis.

Looking to our own decisions we find that the precise question under discussion has not been heretofore treated. Our attention is called to Baker v. State, 54 Wis. 368, 12 N. W. 12; In re Koetting, 90 Wis. 166, 62 N. W. 622; State v. Shove, 96 Wis. 1, 70 N. W. 312, but in neither is the question discussed or helpfully alluded to, much less decided. The same condition exists in most all the adjudications elsewhere under similar statutes. The secret of that, doubtless, is that only in rare instances has there been a prosecution of this sort unless the bank was so hopelessly insolvent that its condition in that regard satisfied every meaning of the term insolvency, beyond question.

In State v. Cadwell, 79 Iowa, 432, 44 N. W. 700, the bankruptcy rule was adopted, citing in support thereof wholly civil cases where such rule is appropriate. The reasoning in the opinion does not appeal favorably to our understanding. It is wholly from a one-sided point of view. The bank there was insolvent under any rule and unquestionably so. Eeference is made to a federal case, without stating where it may be found, but it is sufficiently identified to point, unmistakably, to Dodge v. Mastin, 17 Fed. 660. Turning thereto we find it held that a bank may be insolvent in the limited sense the term is used in bankruptcy matters; it may even be forced to close its doors for want of money to pay all calls upon it in tbe ordinary course of business, — and yet not be insolvent witbin tbe meaning of tbe criminal law. It was said:

“A bank is solvent, witbin tbe meaning of tbe constitution and tbe statutes we are considering, when it possesses sufficient of assets to pay witbin a reasonable time all its liabilities tbrougb its own agencies.”

Tbe Iowa case bas been cited witb a measure of approval in some instances, but not in any one of consequence of tbis sort, so far as we are able to discover. It must be conceded it bas some support in State v. Beach, 147 Ind. 74, 43 N. E. 949, 46 N. E. 145; Queenan v. Palmer, 117 Ill. 619, 7 N. E. 470, 613; Meadowcroft v. People, 163 Ill. 56, 45 N. E. 303; State v. Myers, 54 Kan. 206, 38 Pac. 296. In a pretty full review of authorities in an article in 37 Cent. Law J. 147, it is condemned, authorities being cited and logic used to tbe conclusion that a bank is not unsafe or insolvent, in tbe language of tbe criminal law, if its property is worth more than all its liabilities, even though it be in such condition, at tbe time of receiving a deposit, that it bas to default soon on maturing liabilities. We should remark, in passing, that tbe author took note of tbe fact that in tbe Iowa case tbe bank was hopelessly insolvent witbin any meaning of tbe term, so tbe court did not need to go to the extent it did. Eor that reason, we may well apprehend, tbe question did not receive tbe attention, at the bands of the court, it otherwise would.

We will close tbis opinion without any extensive review of authorities. We venture to say that, in all situations except in respect to tbe administration of bankruptcy and insolvency laws, tbe term under consideration is regarded as contemplating insufficiency of assets, in money value, to balance liabilities, such money value to be realized, not by a forced and involuntary sale, but by handling in the ordinary way an ordinarily prudent man would generally conduct bis business under the same or similar circumstances.

The following are examples of the application of the rule we have stated: Hamilton v. Menominee Falls Q. Co. 106 Wis. 352, 81 N. W. 876; Marvin v. Anderson, 111 Wis. 387, 87 N. W. 226; Shaw v. Gilbert, 111 Wis. 165, 86 N. W. 188; Livingston v. Bank of New York, 26 Barb. 304, 308; Walkenshaw v. Perzel, 32 How. Pr. 233. The position of this court on the general question is well summarized in the syllabus to Hamilton v. Menominee Falls Q. Co., supra, thus:

“Insolvency, in such connection, does not mean an insufficiency of quick assets to pay all debts at once, nor inability to meet commercial obligations as they fall due in the course of business, but that the property of the corporation, real and personal, estimated at a fair and reasonable valuation, is substantially less than its debts.” ......

There is a peculiarity in our statute, perhaps distinguishing it from the Iowa statute and certainly from those of Indiana, Kansas, Illinois, and many other states. The word “insolvent” only is used in most statutes, while that, in connection with the word “unsafe,” is used in ours. Not in the disjunctive, as said in In re Koetting, 90 Wis. 166, 62 N. W. 622, to suggest separate conditions forming bases for the criminal liability, but as “legal equivalents,” the latter word to explain and emphasize the first. That fairly indicates that the legislative idea was something more than insolvency in the limited sense.

An examination of the statutes of other, states fails to disclose any similar use of words in a similar statute, except in Minnesota. Ch. 219, Laws of Minn. 1895. The supreme court of that state in State v. Clements, 82 Minn. 434, 85 N. W. 229, in defining the term, rejected the idea of competency to pay liabilities “in the ordinary course of business,” adopting this, by way of approval of tbe trial court’s instruction on tbe subject:

“If tbe assets of a banking firm and of tbe individual members thereof are insufficient in value to pay tbe debts of such firm, then such firm is insolvent. A bank or banking firm is solvent, within tbe meaning of tbe statute, when it and its several members possess assets of sufficient value to pay,, within a reasonable time, all its liabilities through its own agencies, and is insolvent when it and its individual members-do not possess assets of such value.”

We approve of that, substantially, preferring, however, to express it in this way: Tbe term “unsafe or insolvent” in sec. 4541, Stats. (1898), has regard to deficiency of assets, realizable in cash value within a reasonable time, treating them as an ordinarily prudent person would ordinarily conduct bis business, to cover liabilities exclusive of 'stock liabilities. A bank is insolvent when tbe fair cash value of its assets, realizable within a reasonable time, in case of liquidation by tbe proprietors, as ordinarily prudent persons would ordinarily close up their business, is equivalent to its liabilities, exclusive of stock liability.

That gives a sensible construction to tbe statute, treating tbe banking business with tbe consideration it deserves both from tbe standpoint of patrons and patronized, instead of treating those engaged therein, and responsible for tbe safety of tbe cash and idle capital of tbe country, and responsible for tbe correctness of tbe innumerable exchange transactions of business in every-day life, as if they were a dangerous class, to be fenced about as classes generally are, of criminal tendencies. It provides punishment for tbe really bad and without crushing tbe merely unfortunate, and subjecting all, or a large proportion, in perilous financial periods, to worriment of unreasonable menace.

A point made that tbe law under which tbe grand jury was drawn which found tbe indictment is unconstitutional, because it denies to an accused person tbe equal protection of tbe laws and due process of law, is ruled in favor of tbe defendant in error by State ex rel. Gubbins v. Anson, 132 Wis. 461, 112 N. W. 475; Vought v. State, 135 Wis. 6, 114 N. W. 518, 646.

There is no other question which needs discussion or even mention. The judgment must be reversed. Whether the 'cause should be remanded with directions to discharge the accused upon the ground that he should have been discharged on the case and motion made therefor below, is not free from difficulty. That such course would be the right administration, in a clear case of uselessness of a new trial, within the contemplation of the Code which on reversal requires the cause to be remanded for a new trial, only when necessary;, that is, only when justice, in the judgment of this court, does,, or seemingly may, demand it (sec. 3071, Stats. 1898), has been vindicated,—many times in recent years. Muench v. Heinemann, 119 Wis. 441, 96 N. W. 800; Hay v. Baraboo, 127 Wis. 1, 105 N. W. 654; Miller v. State, 139 Wis. 57, 119 N. W. 850.

When it is clear that a full trial has been had and that a new trial would not be liable to change the situation, assuming that the witnesses who testified cannot honestly do more than repeat their-testimony, public and private interests as well demand that, upon a reversal here, such disposition should be made of the matter as to terminate the litigation.

Because of the probability, amounting to almost reasonable certainty, in view of the verdict on the third charge, that under proper instructions there would have been a full acquittal, and other circumstances in the case — a demand for a new trial, from the standpoint of public justice, is not very clear. However, since the case was tried on quite an untenable theory, it is the opinion of the court that it should be remanded for a new trial, which will not preclude the prosecuting attorney, if be shall deem best, from dismissing the cause with consent of the trial court.

By the Court. — The judgment is reversed, and the cause remanded for a new trial.

Barnes, J., took no part.