People v. Cook

Bird, J.

Defendant was convicted of forging and uttering a promissory note. The proceedings are here for review upon writ of error. Defendant was the cashier of a small private bank, known as the Farmers & Merchants Bank, located in the suburbs of Grand Rapids. The bank was organized in 1914. Soon thereafter William E. DeGolia, a long time acquaintance of defendant, commenced to make small loans of the bank. Those increased in frequency and amount until considerable sums were owing by him. Later certain collaterals were turned over to the bank to secure the loans. After the loans had been running for some time it was suggested that DeGolia lumber 20 acres of valuable timber land which he owned in Barry county. Defendant agreed, if he would do so, the bank would finance the lumbering operations with the understanding that the bank should have the proceeds of the lumber. Under these arrangements DeGolia left Grand Rapids and moved to his farm. He borrowed additional money to operate with and gave more notes. From time to time these notes became due and DeGolia was advised and requested to come to the bank and renew them. On occasions he did not respond, which resulted in embarrassing the bank with past-due paper.

Defendant claims that to obviate the necessity of DeGolia coming to Grand Rapids to renew his notes and give notes for overdrafts, DeGolia authorized him to renew the notes as they fell due, and sign his name thereto. Also to make notes for overdrafts. By following this course the bank would be relieved of carrying past-due paper, and DeGolia would be relieved of coming to Grand Rapids every time .a note vsras to be given or renewed.

Among the notes which DeGolia was owing to the bank was one for $6,885.62. When this note fell due defendant claims he acted under his arrangement with DeGolia, and renewed this note, signing DeGolia’s name thereto. This new note was then placed among the assets of the bank and later, when the bank needed money, it borrowed $1,500 from one Charles Smith, and the note in question was turned over to him as collateral security.

Mr. DeGolia was sworn on behalf of 'the people and denied that he had any such arrangement with defendant or that he ever authorized him to sign any notes for him. With defendant’s admission that he signed the note and placed it among the assets of the bank, and that he did so by virtue of the understanding with DeGolia, and DeGolia’s denial that he ever authorized defendant to sign notes for him, the issue was reduced to a simple one, namely, whether DeGolia ever authorized defendant to sign the note in question.

1. The important assignments of error which we have to consider relate to the wide latitude accorded the prosecutor by the trial court in the introduction of testimony and the cross-examination of defendant. The record shows that the facts attending the organization of the bank in 1914 were gone into. Its loans, and to whom, and the solvency of the borrowers were shown more or less in detail. In fact, its management, or mismanagement, was shown from the time it opened its doors until it closed them seven years later, and made an assignment to the Michigan Trust Company. And even events transpiring after the assignment was made were shown in the testimony.

By way of elaboration of these items, it was shown by David R. Eason, an ex-bank examiner, and an employee of the Ellis bank, that he was sent by Mr. Ellis to the Farmers & Merchants Bank to examine collateral offered by that bank to the Ellis bank in payment of balances. The prosecutor was permitted to show by him the collateral which he examined and to testify to whom the loans were made. It was shown that the Hanford Lumber Company had borrowed $87,000; the Bartlett Grain and Milling Company, $83,000; Colon C. Lillie, $5,000; Ox-Welding Company, $5,300; Liberty Candy Company, $14,083; Mills & Healey,. $7,500, and many other loans of lesser amounts. Mr. Eason was permitted to express an opinion as to whether they were good or bad loans and to discuss them generally, and was also permitted to express an opinion as to whether certain acts on behalf of the bank was good banking.

These matters were gone into again upon cross-examination of defendant. Defendant was questioned at some length about the house he lived in, how much he paid for it, and if he paid more than it was worth. He was interrogated about an automobile which he had purchased since the bank had failed, and was examined at some length about other business concerns in which he was interested. His differences with the directors of his bank were gone into as well as the suit which defendant had begun against them after the closing of the doors of the bank. The financial condition of the bank when it closed its doors; also as to the people who made deposits in the bank a short time before it failed; what the salaries of himself and the employees were and how much rent he paid were all inquired about.

It appears that defendant purchased of one Crosby a farm situate in Montcalm county. The question whether he owned it or the bank owned it was the subject of a long cross-examination. The deals and loans made by his son and son-in-law were aired to a considerable extent. How his son and son-in-law acquired the Crosby farm was inquired about at some length. Defendant’s differences and law suit with Crosby in Montcalm county were the subject of much cross-examination. This examination included interrogatories as to the condition of the cattle on the farm, whether the cattle were Jerseys, how much he paid for the farm, where he got the money from to pay the mortgage held by the Northwestern Mutual Life Insurance Company, and whether he testified to certain things in that .court. The written assignment of the mortgage to defendant was offered and received in evidence. This cross-examination ran on into 50 pages of record. During this cross-examination no reference was made to the note in question, and DeGolia’s name was mentioned only twice, and then in an immaterial way. So far as throwing any light on the charge against defendant the prosecutor and the defendant might as well have discussed the merits and demerits of the proposed League of Nations.

Had the development of this irrelevant and immaterial testimony resulted only in a waste of time it would not be so serious, but the whole ■ tendency of the objectionable testimony introduced was to show that defendant had, by the exercise of bad judgment or reckless conduct, mismanaged the affairs of the bank, and as a result had wrecked it. This was harmful to defendant’s case. More or less ill feeling exists in every community toward officials of a defunct bank, and an attempt to review instances of bad judgment and wrongdoing of a managing official in the presence of a court room well filled with disappointed depositors was well calculated to excite an unwarranted' prejudice against defendant on the issue that was being tried. The testimony should have been confined to the issue, and if defendant were guilty of other offenses in relation to the mismanagement of the bank, he could have been made to answer to them in another proceeding.

If DeGolia did not authorize defendant to sign the notes he was guilty of forgery, under his own concession. Upon the question of intent to defraud, the jury had a right to infer that he did so intend from his act in placing the note among the assets of the bank and later giving it to a third party as collateral security. By reason of the introduction of the immaterial matters defendant was deprived of a fair trial and the judgment of conviction must be set aside.

2. Objection was raised to Mr. Hoffius, the prosecuting attorney, appearing on behalf of the people because of his interest in the affairs of the bank. The record discloses that Mr. Hoffius was a depositor in the bank when it closed its doors. Following the closing of the bank Mr. Hoffius made proof of his claim and filed it with the assignee. Later, and before this proceeding was commenced, he sold and indorsed his claim to another without recourse. The question, therefore, presents itself, whether, under these circumstances, the interest of the prosecutor was such as to disqualify him under 1 Comp. Laws 1915, § 2410:

“No prosecuting attorney shall receive any fee or reward from or on behalf of any prosecutor or other individual for services in any prosecution or business to which it shall be his official duty to attend, nor be concerned as attorney or counsel for either party other than for the State or county in any civil action depending upon the same state of facts upon which any criminal prosecution commenced or prosecuted shall depend, or in any action for malicious prosecution commenced or prosecuted during his term of office in the county of which he is prosecuting attorney; nor shall any attorney be permitted to prosecute, or aid in prosecuting any person for an alleged criminal offense where he is engaged or interested in any civil suit or proceeding depending upon the same state of facts, against such person directly or indirectly.”

Without discussing what position Mr. Hoffius would have been in had he not disposed of his interest as a depositor, we think when he disposed of his interest therein he relieved himself from any disqualification so far1 as the inhibitions of the statute are concerned. The concluding inhibition of the section appears to have reference to a present interest rather than a past one.

A judge is not disqualified by reason of his having once owned stock in a corporation which was disposed of before the commencement of the proceedings. 23 Cyc. p. 577, and cases. The disqualification of a judge on account of interest may be removed by relinquishing of his interest or the transfer of it. 23 Cyc. p. 598, and cases. It appearing that Mr. Hoffius disposed of his interest in the deposits before the commencement of this suit, we see no reason for holding that he was legally disqualified to act as public prosecutor in the case.

On account of the views which we entertain with reference to the error of the trial court in the admission of testimony, we think it will be unnecessary to consider the remaining assignments of error.

The judgment of conviction will be set aside and a new trial ordered.

Wiesx, C. J., and Fellows, Clark, Sharpe, Moore, and Steere, JJ., concurred. McDonald, J., did not sit.