Manley v. State , 166 Ga. 563 ( 1928 )

Hines,

J. (After stating the foregoing facts.)

The defendant was indicted under section 28 of article 20 of the banking act, which declares that “Every insolvency of a bank shall be deemed fraudulent, and the president and directors shall be severally punished by imprisonment and labor in the penitentiary for not less than one (1) year nor longer than ten (10) years: Provided, that the defendant in a case arising under this section may repel the presumption of fraud by showing that the affairs of the bank have been fairly and legally administered, and generally with the same care and diligence that agents receiving a commission for their services are required and bound by law to observe; and upon such showing the jury shall acquit the prisoner.” Acts 1919, pp. 135, 219; 8 Park’s Code Supp. 1922, § 2281 (bb). The defendant demurred to the indictment, upon the ground, among others, that it violates the due-process clauses of the State and Federal constitutions, in that its terms are so vague and indefinite, and describe the acts made criminal in language so general and indefinite, as to make the question of criminality depend upon the idiosyncrasies of the men who may happen to constitute the court and jury; and sets up no ascertainable and fixed standard of guilt. This contention has been decided by this court adversely to the defenclant. The above section of the banking act is a substantial reenactment of section 204 of our Penal Code of 1910, which first appeared in our Penal Code of 1833, and which has reappeared in every Code since that date. In Griffin v. State, 142 Ga. 636 (83 S. E. 540, L. E. A. 1915C, 716, Ann. Cas. 1916C, 80), this court held that this section of the Penal Code did not violate the due-process clause of the Federal constitution, in that: (a) it abridged the privileges and immunities of citizens of the United States; (b) it deprived the president and directors of a bank of equal protection of the laws with like officers of other corporations, as to which there is no law providing that insolvency of the corporation shall be deemed fraudulent, and that the president and directors, or other officers, shall be punished; (c) it destroys or abridges the presumption of innocence which the law raises as evidence in behalf of every one charged with crime; (d) it deprives the president and directors of an insolvent chartered bank of the right of presenting their■ defense to the charge of fraudulent intent; (e) it declares the insolvency of a chartered bank to be fraudulent, and provides that its president and directors shall be punished, even though they had nothing to do with the management of the bank, and though the insolvency was not brought about by their conduct or with their knowledge; or (f) for any other reasons suggested by the defendant’s demurrer. It may be said that this court in that case did not deal with the ground that this section of our Penal Code violates the fourteenth amendment to the constitution of the United States, upon the ground that its terms are so general and indefinite as to fix no certain standard of guilt; and that the decision in the Griffin case is not authority for sustaining the constitutionality of section 28, article 20 of the banking act of 1919. In the Griffin case this court distinctly held that this section does not violate the due-process clause of our State constitution. As the due-process clauses of both the State and Federal constitutions are practically identical, the ruling in the Griffin case is in effect a holding that the section cited does not violate the due-process clause of the Federal constitution. In Fordham v. State, 148 Ga. 758 (98 S. E. 267), this court followed the ruling in the Griffin case, and held that the section in question “is not violative of the 14th amendment to the constitution of the United States on the ground that it denies to persons indicted thereunder due process of law or equal protection of the law.” In Snead v. State, 165 Ga. 44 (139 S. E. 812), this court was called on to pass upon the constitutionality of the above section of the banking act of 1919, and held that “There is no merit in the ground of demurrer asserting that the provisions of section 28 of article 20 of the banking act of 1919 (Acts 1919, pp. 135, 219) is violative of the fourteenth amendment to the Constitution of the United States.” In view of the rulings in the cases just cited, said section of the banking act of 1919 does not violate the due-process clauses of the State and Federal constitutions. If this question were now an open one in this court, we would follow the ruling made in the cases above dealt with. Those decisions ruled that the presumption created by section 204 of the Penal Code, and section 28, article 20, of the banking act of 1919, does not violate due process. Within proper limits the legislature may make proof of specified acts prima facie evidence of guilt of the accused. Such presumption must not be final. It must not be arbitrary or wholly unreasonable, unnatural, or extraordinary. It must bear some reasonable relation to the facts proved. The accused must be allowed an opportunity to make his defense, show all the facts bearing on the issue, and to have the whole case submitted to the jury for decision, after considering all the evidence as well as such presumption. Griffin v. State, supra; Fordham v. State, supra; Kunsberg v. State, 147 .Ga. 591 (95 S. E. 12); Hawes v. State, 150 Ga. 101 (103 S. E. 413). A statute which makes an act penal in terms so vague that men of common intelligence must guess at its meaning, and differ as to its application, violates the first essential of due process of law. The terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it of what acts or conduct on their part will render them liable to its penalty. This is a well-recognized requirement under ordinary notions of fair play and the settled rules of law. Waters-Pierce Oil Co. v. Texas, 212 U. S. 86 (29 Sup. Ct. 220, 53 L. ed. 417) ; International Harvester Co. v. Kentucky, 234 U. S. 216, 221 (34 Sup. Ct. 853, 58 L. ed. 1284); Collins v. Kentucky, 234 U. S. 634, 638 (34 Sup. Ct. 924, 58 L. ed. 1510); Fox v. Washington, 236 U. S. 273 (35 Sup. Ct. 383, 59 L. ed. 573); American Seeding Machine Co. v. Kentucky, 236 U. S. 660 (35 Sup. Ct. 456, 59 L. ed. 773); Miller v. Strahl, 239 U. S. 426 (36 Sup. Ct. 147, 60 L. ed. 364); Tedrow v. Lewis, 255 U. S. 98 (41 Sup. Ct. 303); Kinnane v. Detroit Creamery Co., 255 U. S. 102 (41 Sup. Ct. 304); Weeds Inc. v. United States, 255 U. S. 109 (41 Sup. Ct. 306); Connally v. General Construction Co., 269 U. S. 385 (46 Sup. Ct. 126). When a criminal statute employs language having a technical or other special meaning well-enough known to enable those within its reach to correctly apply it, it does not fall within the condemnation of the above principle. Hygrade Provision Co. v. Sherman, 266 U. S. 497, 502 (45 Sup. Ct. 141) ; Omaechevarria v. Idaho, 246 U. S. 343, 348 (38 Sup. Ct. 323, 62 L. ed. ). So when a statute employs words with a well-settled common-law meaning, although it may contain an element of degree in the definition as to which estimates may differ, it is not void for uncertainty. Nash v. United States, 229 U. S. 373, 376 (33 Sup. Ct. 780, 57 L. ed. 1232). Are the terms of the above section of article 20 of the banking act of 1919, sufficiently plain and explicit to inform persons of ordinary intelligence of what conduct on their part will render them liable to its penalty? Under this statute proof of the insolvency of a bank raises the presumption that such insolvency is fraudulent. This is perfectly plain. It then provides that the defendant in a case arising under this section may repel the presumption of fraud by showing that the affairs of the bank have been fairly and legally administered, and generally with the same care and diligence that agents receiving a commission for their services are required and bound by law to observe; and upon such showing the jury shall acquit him. These terms are not uncertain and indefinite. The affairs of a bank are fairly administered when honestly administered. A person of ordinary intelligence, entrusted with the management of the affairs of a bank, knows when he is fairly and honestly administering these affairs. The affairs of a bank are legally administered when administered in accordance with law. Our statutes make certain acts in the administration of the affairs of banks unlawful. Presidents and directors of banks are chargeable with knowledge of these statutes, and they should acquaint themselves with their terms and requirements. The statute under consideration requires these officers to administer the affairs of the bank in their charge in accordance with these laws. This is perfectly plain. This presumption places upon these officers the burden of showing that they administered the affairs of the bank with the same care and diligence that agents receiving a commission for their services are required and bound by law to observe. This care and diligence is defined by law. It is “that ordinary care, skill, and diligence required of a bailee for hire.” Civil Code, § 3581. All these terms and requirements of the statute are plain and definite; and when a defendant who is charged with a violation of this statute shows that he complied with these requirements, the jury is required to acquit him. In addition, this statute, as construed by this court, permits the accused to rebut the presumption against him, arising from proof of the. insolvency of the bank, by showing other facts, such as that the insolvency was caused by an unexpected panic in the country, or by the speculation of some officer or agent for which the accused was in no way responsible, or by any other facts rebutting the presumption of fraudulent conduct on his part. Griffin v. State, supra. The statute by clear and explicit terms fixes standards by which both the guilt and innocence of a defendant can be determined. It follows that this statute does not violate the due-process clauses of the State and Federal constitutions for the reason that its terms are so indefinite and uncertain as not to inform one accused of its infraction with what he has to meet on his trial.

It follows necessarily from what has been said that the indictment is not subject to demurrer upon the ground that said section of said act is void for the reason that its terms are so general and indefinite as to make the question of criminality depend upon the idiosyneracies of the men who happen to constitute the court and jury, and do not enable honest and intelligent men to ascertain what particular act or acts it seeks to condemn.

Said section of the banking act of 1919 is not violative of article 1, paragraph 5, of the constitution of this State, which provides that every person charged with an offense shall be furnished on demand with a copy of the accusation, in that the indictment does not name the act or acts which are prohibited by law, and is inadequate to inform the defendant of the nature of the accusation against him. The indictment need not allege the acts which caused the insolvency of the bank; and it need not specify the illegal acts upon which the State relies to show that the defendant did not administer the affairs of the bank in a legal manner. Snead v. State, supra.

In various grounds of his motion for new trial the defendant asserts that the court erred in admitting in evidence, over his objections, proofs of claims of various Florida banks against the Farmers & Traders Bank, filed with the State superintendent of banks after the latter bank was taken in charge by him on July 13, 1936, for liquidation, each of these claims being verified by an affidavit by some officer of the bank making the claim. Each of these proofs set out that the Farmers & Traders Bank owed the claimant bank a given amount of- call money, subject to withdrawal on demand, prior to July 13, 1936. By the banking act the superintendent, upon taking over for liquidation an insolvent bank, is required to cause notice to be given by advertisement in the newspaper in which are published the sheriff’s advertisements of the county in which the bank is located, and in any other newspaper when he may deem it necessary or advisable, once a week for four weeks, calling on all persons who have claims against the bank to present them to him and make sworn proof thereof, filing them with him at the office of the bank, and within a time to be specified in the notice, not less than ninety days from the date of the first publication of the notice. A copy of this notice is required to be mailed to all persons whose names appear as creditors upon the books of the bank. Acts 1919, pp. 135, 158; 8 Park’s Code Supp. 1933, § 3368 (m). These proofs of claims objected to were papers of file in the office of the department of banking. The certificate of any public officer of this State shall give sufficient validity or authenticity to any copy or transcript of any record, document, paper of file, or other matter or thing in their respective offices, or pertaining thereto, to admit the same in evidence in any court of this State. Civil Code, § 5798. There was no objection upon the ground that certified copies of the proofs of claims were the best evidence. The State was not undertaking to introduce the testimony of the persons who verified these proofs of claims, or what appeared upon the books of these banks. It was offering the records appearing in the office of the banking department. The mistake of the plaintiff in error consists in the assumption that these proofs of claims are the personal testimony of the bank officers who verified them. As such records certified copies thereof were admissible. Such records are not hearsay. They are not the testimony of witnesses with whom the defendant has to be confronted. They do not purport to set forth the contents of the books of the Florida banks. If there had been objection upon the ground that certified copies of these records thereof were primary evidence, another question would have been made. These documents were admissible to establish the fact that these banks were asserting claims against the Farmers & Traders Bank, although they may have been insufficient to establish the validity of such claims; and this evidence, when taken in connection with other evidence showing the history and origin of these claims, was relevant in throwing some light on the issue whether the defendant had fairly administered the affairs of this bank. For this reason the court did not err in admitting these records over the objections urged. Shivers v. State, 53 Ga. 149.

In forty-seven grounds of his motion for new trial the defendant assigns error upon the admission, over his objections, of various letters written, after the Farmers & Traders Bank had been taken over by the superintendent of banks for liquidation, by bank examiners, deputy bank examiners, receivers, or auditors in charge, or by cashiers or other officers of various Florida banks, to J. T. Perry, auditor in charge of the Farmers & Traders Bank under the superintendent of banks; and of the replies by Perry. Some of these letters stated that the writers had letters of advice from P. J. Baker, treasurer of the Bankers Trust Company, stating that the Bankers Trust Company had deposited with the Farmers & Traders Bank various sums claimed by the Florida banks, and that these deposits were the funds of the Florida banks. Others stated that records of the Florida banks showed that the Georgia bank was indebted to the Florida banks in various amounts. The reply letters by Perry stated that the records of -the Farmers & Traders Bank showed no indebtedness to the Florida banks. To the admission of these letters the defendant objected upon the grounds that he urged to the admission of the proofs of claims of the Florida banks dealt with in the foregoing division, and he moved to rule out each of these letters upon the same grounds. Courts will not admit against a defendant in a criminal case the unsworn statements of a person, though they purport to be based on his own knowledge, as evidence of the existence of the facts stated. The reason on which this rule is based is that the unsworn statement of a person not called as a witness or subjected to the test of cross-examination is not recognized as having sufficient probative value to raise an inference that the facts are as stated. Statements otherwise objectionable as hearsay do not become competent because they are made in a judicial proceeding, or because they are contained in records or in letters on file in some department of government, in the absence of some statute making them admissible. 22 C. J. 207; Hickson v. Bryan, 75 Ga. 392; Aripeka Saw Mills v. Georgia Supply Co., 143 Ga. 210 (84 S. E. 455); Owen v. Groves, 145 Ga. 287 (6) (88 S. E. 964). These letters contained statements that the books of the Florida banks showed that the Farmers & Traders Bank owed these banks certain sums of call money, or that funds of these banks had been deposited by the Bankers Trust Company in the Farmers & Traders Bank. These statements were not sworn to, and for this reason were hearsay as to the defendant in this case. The production of the books of these banks, with identification, would not have been sufficient to entitle them to admission to establish the indebtedness of the Georgia bank to the Florida banks. These books would have had to be accompanied by the oath of the persons who made the entries, or the oath of some person who knew the entries to be correct. Southern Home &c. Asso. v. Butter, 111 Ga. 826 (35 S. E. 679); Dougan v. Dunham, 115 Ga. 1012 (42 S. E. 390).

But we do not think that the erroneous admission in evidence of these letters requires the grant of a new trial. We can not agree with the contention of able counsel for the defendant that this evidence was prejudicial to him. In our opinion their admission was harmless, for several reasons. In the -first place the trial judge distinctly instructed the jury that he admitted them simply as letters requesting payment of demands, and not to establish the validity or legality of the demand or claim. With this instruction jurors of average intelligence could not treat these letters as establishing liabilities against this bank, and as tending to establish its insolvency. In the second place, the undisputed evidence shows that these claims of the Florida banks were not treated as liabilities of the Farmers & Traders Bank by the expert witnesses who testified to the insolvency of this bank; and that, leaving out and wholly disregarding the evidence relating to these claims, and not treating them as liabilities, this bank was insolvent when taken over by the superintendent of banks for liquidation. In the third place, in view of all the evidence, the finding that this bank was insolvent is required. This being so, and the evidence further showing that the defendant was the president and a director of this bank and the dominating and controlling manager of its affairs, the law cast upon him the burden of showing that the affairs of the bank were fairly and legally administered, and generally with the same care and diligence that agents receiving a commission for their services are bound by law to observe. The evidence introduced by the State does not show such administration of the affairs of this bank by the defendant. On the contrary, this evidence tends to affirmatively show that he did not so administer its affairs. For instance, his checking account was often overdrawn during each of the six months preceding the closing of the doors of this bank. In May of that year his overdraft amounted to $6240. During June of that year his overdraft amounted to $3119. During the period from February 11, 1919, to June 9, 1926, the defendant’s account was overdrawn 1132 times. It does not appear that these overdrafts were authorized by the board of directors of this bank. Without such authority the defendant committed a misdemeanor in making these overdrafts. 8 Park’s Code Supp. 1922, § 2281 (s); Michie’s Penal Code, § 211(19). This bank during the years 1920 to 1925, inclusive, made loans to the defendant in excess of 20 per cent, of its capital and unimpaired surplus. In January, 1925, it loaned to the defendant $14,152. During the period of thirty days prior to its suspension of business, the defendant procured this bank to make loans of call money to various other-banks, members of a chain of banks of which this bank was one, some of which were in excess of 20 per cent, of its capital and unimpaired surplus. Such excessive loans are expressly prohibited by statute. Acts 1919, p. 196; Acts 1922, pp. 63, 68; 14 Park’s Code Supp. 1926, § 2280 (m); Michie’s Code, § 2366(159). The making of such loans was not a fair and legal administration of the affairs of the bank. Some of these loans exceeded ten per cent, of the capital of the bank, and were not secured by good collateral or other ample security. Acts 1919, pp. 135, 196; 8 Park’s Code Supp. 1922, § 2280 (m).

The defendant procured this bank to purchase $103,000 of the notes of the Bankers Trust Company; and that company received that sum from this bank for that paper. Some of these notes were renewals. Some of them were the paper of corporations in which the defendant was interested. He knew that some of this paper was insolvent. $55,500 of these papers were found to be insolvent. On the day this bank closed its doors and went into the hands of the superintendent of banks, the defendant procured this bank to make to another bank of which he was president a loan of $4000, when this bank was in distress for funds to meet its obligations. There are many other facts in the record which show mismanagement of this bank. The defendant introduced no evidence, and made no statement. In these circumstances, and taking into consideration the presumption arising from proof of its insolvency, a .finding that the insolvency of this bank was fraudulent was required. For these reasons, the illegal admission of these letters does not require the grant of a new trial.

Separately, and as to each of the Florida banks, the defendant in writing requested the court to instruct the jury that the evidence was not sufficient to show a legal indebtedness to the Florida banks, and that the claimed indebtedness to such banks, as to which evidence had been offered, should not be considered by the jury in passing on the solvency or insolvency of the Farmers & Traders Bank. The court refused these requests. Nowhere in the general charge did the court give to the jury any instruction whatever on this subject. In grounds 92 to 116 inclusive of his motion for new trial the defendant assigns error on the refusal of the requested instructions. The liability of the Farmers & Traders Bank on these claims of the Florida banks is not free from doubt; but conceding that this bank is not liable on these claims, and that the court should have instructed the jury as a matter of law that it was not so liable, we do not think that the refusal to give to the jury the instructions embodied in these requests requires the grant of a new trial, for the reasons given in the foregoing division. If the treatment of these claims as liabilities of this bank were necessary to establish its insolvency, and if the court as a matter of law was authorized to instruct the jury that they were not liabilities of this bank, then these instructions should have been given; but as the evidence establishes the insolvency of the bank without considering these claims as liabilities against it, and as the guilt of the accused is clearly proved, the failure of the court to give these instructions does not require the grant of a new trial. In Stephens v. Crawford, 1 Ga. 574 (44 Am. D. 680), it was ruled: “This court will not send a cause back for a rehearing because of the admission of illegal testimony, if, wholly irrespective of that testimony, there was plainly and obviously testimony sufficient to justify the finding.” In Arrington v. Cherry, 10 Ga. 429 (4), this court said: “In ordinary cases, notwithstanding a misdirection, if the court see that justice has been done, and that a new trial ought to produce the same result, the verdict will not be disturbed.” In Myrick v. Hicks, 15 Ga. 155, this court said: “A new trial will not be granted, if the verdict of the jury was right, although the charge of the court may have been wrong.” In Hagar v. State, 71 Ga. 164, it was ruled: “The verdict was required by the evidence, and in such cases, even if there be error in the charge, it will not necessitate a new trial.” In Griffin v. State, 86 Ga. 257 (4) (12 S. E. 409), it was held that an erroneous charge did not require the grant of a new trial, where the verdict was demanded by the evidence. In Toler v. State, 107 Ga. 682 (33 S. E. 629), the court made this ruling: “While the failure of the court, upon a criminal trial in which the evidence against the accused is entirely circumstantial, to instruct the jury concerning the rule applicable to evidence of this character would, in a close or doubtful ease, be cause for a new trial, such failure will not require another trial when the guilt of the accused is clearly and convincingly proved, and the charge as to the amount and character of proof requisite to a lawful conviction is such as to leave no room for doubt that the verdict would have been the same even if the court had in terms stated to the jury that, in order to warrant a verdict of guilty, the evidence must not only be consistent with the guilt of the accused, but inconsistent with every other reasonable hypothesis.” See Leonard v. State, 110 Ga. 291 (34 S. E. 1015); Gore v. State, 162 Ga. 267 (3) (134 S. E. 49).

In ground 72 of his motion for new trial the defendant excepts to the ruling permitting R. E. Lewis, a witness sworn in behalf of the State, to testify, over his objections, as follows: “As to the value of those assets, so far as I know there is no change. At the time the appraisal was made the total was $103,000; and we appraised as good $28,000, we appraised as doubtful $19,000, and we appraised as worthless $55,500.” The witness referred to $103,000 of notes negotiated with the Farmers & Traders Bank by the Bankers Trust Company, and found among the assets of the former bank at the time it suspended business. The reference to an appraisal was to one which B. T. Morris, W. C. Smith, W. A. Arnold, and the witness made of said notes. Morris and Smith were not sworn as witnesses. The defendant objected to the admission of said evidence, upon the grounds, (a) that it was not competent for this witness to testify as to what other appraisers had done; (b) that the matter referred to was res inter alios acta; (c) that it was hearsay. The court overruled the objections and admitted the testimony, and the defendant assigns error. We can not agree with learned counsel for the defendant that this evidence is the rankest hearsay. The issue involved was the solvency or insolvency of these notes. The solvency or insolvency of a party can be established by the opinion of a witness, provided the witness gives the facts upon which his opinion is founded. Such testimony being competent, the jury must decide as to its just weight and effect, and to what extent they will give credit to it. Crawford v. Andrews, 6 Ga. 244; Riggins v. Brown, 12 Ga. 271, 273; Moore v. Dozier, 128 Ga. 90 (4) (57 S. E. 110); Kirkman v. Ashford, 145 Ga. 452 (5), 457 (89 S. E. 411); Cabaniss v. State, 8 Ga. App. 129 (17) (68 S. E. 849). It clearly would have been incompetent for this witness to have testified that others had appraised $28,000 of these notes as good, $19,000 as doubtful, and $55,500 as worthless. This would have been hearsay. But we can not see how it was hearsay for him to testify that a committee of which he was a member had appraised these notes after the bank had suspended business and the superintendent of banks had taken possession of it for liquidation. This was in no sense hearsay testimony, if the witness of his own knowledge knew that this appraisement was made and how the notes were appraised. He gave the method by which this committee made this appraisement and the facts upon which the appraisal was based. He gave this procedure as showing his means of knowledge of the character of the paper appraised; and we see no good reason why this appraisal could not be shown as one of the facts upon which he based his opinion, when sworn as a witness for the State, that the bank was insolvent. He gave other reasons to support his opinion that the bank was insolvent. These facts may not have been conclusive or strongly persuasive of the correctness of the opinion; but, as we have seen, the weight to be given to his opinion was a matter to be passed upon by the jury. We can see no good reason why this witness could not state that this appraisal had been made, not to show the solvency or insolvency of the notes appraised, but as one of the facts upon which he based his opinion touching their solvency or insolvency. Where a witness knows a fact both from his personal knowledge and from hearsay, and the issue is one upon which the witness can express an opinion after giving the facts, it is competent for such witness to testify that he knows the fact upon which he bases his opinion, both from personal knowledge and from hearsay. Atlanta &c. Railway v. McManus, 1 Ga. App. 302 (2) (58 S. E. 258); Bitting v. State, 165 Ga. 55 (4) (139 S. E. 877). But if the admission of this evidence was erroneous, we would not grant a new trial in this case, for the reason that the other evidence introduced by the State establishes the insolvency of this bank at the time of its suspension, the practical correctness of this appraisal with which we have been dealing, and the dominating management of the affairs of the bank by the defendant; and it wholly fails to rebut the presumption of fraudulent insolvency which the law raises against the defendant.

In ground 77 the defendant assigns error upon the ruling permitting one Cagle, who was sworn as a witness in behalf of the State, to testify, over his objection, as follows: “I took down the assets that they appraised as worthless [referring to the appraisement of the assets of the Farmers & Traders Bank, said 'to have been made by Lewis, Morris, Smith, and Arnold]. According to that appraisal that amounted to $114,420:48. They appraised as doubtful assets of $168,159.04." The defendant objected to the admission of this evidence, upon the grounds, (a) that it was the hearsay report of what the appraisers did, and (b) that the defendant could not be bound by what some appraisers determined in this way. The ruling the court made in this matter was as follows: “I think he can state the sum total of the appraisement, if he was present; but as to what appraisements they put on it, I do not think he could testify to that. I think you can ask if he put the figures down, the sum total. Go ahead and just state the sum total, if you made the figures and put that down." Cagle was an expert accountant employed by the State banking department to investigate the affairs of this bank and make a report thereon to the department. The superintendent of banks is required, when he takes possession of a bank for liquidation, to make an inventory of the assets thereof, in triplicate. Acts 1919, pp. 135, 157; 8 Park’s Code Supp. 1922, § 2268(1). Such an inventory consists in a list of the assets of the bank, with their estimated value. It is infer-able from the evidence that the appraisal to which reference is made in this ground was made by a committee appointed by the State bank examiner, with the assistance of this auditor, for the purpose of supplying the inventory required by this provision of the banking act. However this may be, we do not think that this evidence was inadmissible for the reasons alleged. This witness took part in the making of this appraisal. He made the list of the notes appraised, and put down the value of each note as fixed by the appraisers. The purpose of his testimony was not to show the insolvency of these notes. He was sworn to inform the jury what the books and records of this bank and such appraisement showed its financial condition to be, assuming such appraisal to be correct, and what other voluminous records and facts showed the financial condition of the bank to be. In other words, his testimony was offered to show from this appraisal, assuming it to be correct, when taken with other voluminous facts and records appearing in the evidence, whether this bank was insolvent. The hearsay rule does not preclude a witness from stating what certain unsworn statements show, and, assuming them to be true, what they prove. The rule seems to be that where the documentary evidence consists of books of account or documents containing multifarious details, expert accountants may summarize their contents and testify as to the result of the examination, provided the books and documents are made accessible to the 'Court and parties. Sasser v. Sasser, 73 Ga. 275 (5); Henderson v. Central Railroad, 73 Ga. 718 (2); Central Railroad v. Wolff, 74 Ga. 664 (2); Merchants National Bank v. Vandiver, 104 Ga. 165 (30 S. E. 650); Cabaniss v. State, 8 Ga. App. 129 (14) (supra) ; 22 C. J. 218, § 182, 14. When the purpose for which this evidence was offered is taken into consideration, its admission was not erroneous.

In ground 78 the defendant excepts to the ruling permitting one McGee, a witness sworn in behalf of the State, to testify, over his objections, as follows: “According to this record [referring to the report of the appraisers, Lewis, Morris, Smith, and Arnold, of the assets of the Farmers & Traders Bank], $114,420.80 of these notes appeared as worthless. There is a column marked doubtful, which the record shows amounts to $168,159.04.” The defendant objected to the admission of this evidence, upon the grounds that it was the hearsay report of what the appraisers did, and that he could not be bound by what some appraisers determined in this way. This isolated piece of evidence would be subject to the objection urged against its admission; but when considered in view of the purpose for which it was offered and in connection with the other ' evidence of this witness, its admission was not improper and erroneous. This witness was the assistant liquidating agent of the affairs of this bank, and was charged with the collection of its bills receivable. The purpose of his testimony was to show the amount of collections made by him on the several classes of notes embraced in this appraisal, and to throw light upon the question of their solvency or insolvency. The purpose was not to prove that this appraisal had been made; but, assuming it to be made, the object was to show how much of the notes classified therein as good, as doubtful, and as worthless, had been collected. The ultimate object was to show whether the notes appraised as good were good, whether those appraised as doubtful were doubtful, and whether those appraised as worthless were worthless. The purpose was not to show the appraisal, but to determine whether the notes appraised were insolvent. We see no valid reason why this appraisal could not be submitted to the witness, and why he could not be questioned as to the success which he had had in collecting the several classes of notes embraced therein, with the view of throwing light upon the question whether they were solvent or insolvent. For instance, this witness testified that he had been engaged in the collection of these notes three months, and stated the means and methods which he had used in endeavoring to collect the same. He testified that he had not been able to collect anything from the notes classified as worthless, except about $900 from the collateral attached to the note of the Traders Trust Co. for $3000. He further testified that he had collected from the notes marked doubtful only $500. He then testified, from his experience and information obtained and his efforts to collect these bills receivable, that the notes classified in the appraisal as worthless were as worthless as they could be. In view of the purpose for which this evidence was offered, we do not think that the objection urged was meritorious. Its introduction was an application of the homely maxim that proof of the pudding is chewing the bag. Where the contents of this writing were material to the inquiry, but the correctness of the classification embraced therein was relevant, it was permissible for the witness to refer to such document and to describe it in a general way. Cabaniss v. State, supra.

In ground 73 the defendant excepts to the ruling permitting one Bentley, a witness in behalf of the State, to testify, over his objection, as follows: “From my investigation of that kind of collateral and knowing the character and nature of the business carried on by those banks, from a banker’s standpoint it was not bankable paper. I would not consider it collateral at all, because it did not appear to have any market value whatever except the market that could be made from the security by the manipulations of the parent bank.” The defendant objected to this testimony upon the grounds that it was a pure conclusion of the witness, with no foundation to justify it, and that the argument of the witness was a grossly improper statement. The court overruled the objection and admitted the testimony with the following statement to the jury: “Gentlemen, it is admitted purely as an opinion. I will charge you fully on these subjects later on, to the effect that you are not to be bound by any opinion expressed by any witness. You will consider all the facts and consider the charge that I will give you in that connection. It is admitted purely as an opinion.” Whether these notes were bankable papers or not was necessarily a matter of opinion. The witness qualified as an expert. Besides, he gave the facts upon which he based this opinion. So we can not say that the objection that this testimony was a mere conclusion of the witness, without any foundation, was well taken. We can not say that the testimony was a mere argument, or so argumentative, as to'deprive it of its character as testimony. In their brief counsel for the defendant assert that this testimony was inadmissible for the reason that it invaded the province of the jury, and undertook to pass upon the very question which the jury was called upon to decide. This objection does not appear to have been urged at the trial, and for this reason we can not deal with it.

C. N. Davie was sworn as a witness for the State. He testified that the Farmers & Traders Bank, just before it suspended business, had applied to the clearing-house banks of Atlanta for a loan of $100,000, and that the loan had been refused. He was then asked, on cross-examination, if he did not know that there was a difference of opinion among the clearing-house banks as to the question of making this loan. The solicitor-general objected to this question, and the court sustained the objection and refused to permit the witness to answer. To this ruling the defendant excepts in ground 74 of his motion for new trial. The exception is without merit. It not appearing upon what ground any difference of opinion among the members of the clearing-house association was based, refusal of the court to permit the witness to answer this question does not show any error requiring the grant of a new trial. The burden was upon the movant to show harmful error. Such difference of opinion may have existed for various reasons, none of which would throw any light upon the issues involved in this case. Unless it was shown that it was based upon fact or facts relevant to the issues involved, its rejection would not be error.

In ground 75 the defendant excepts to the ruling refusing to permit one Cagle, an assistant superintendent of banks of this State, to answer the following question on cross-examination: “How long has it been the established practice of chain banks in Georgia to exchange cáll money with each other and to help each other out when they need assistance?” The court did not err in this ruling. To make a custom or usage good, it must not be contrary to law. Custom can not change the positive law of the State. Berry v. Cooper, 28 Ga. 543; Happ Co. v. Hunter Mfg. Co., 145 Ga. 836 (90 S. E. 61). If these call loans were legal under the banking act, then the making of them did not constitute fraudulent mismanagement of the affairs of the bank. If these call loans or some of them were illegal in that they violated statutes of this State governing the management of banks, then any custom under which such loans were made would not render such transactions valid, and would not rebut the presumption of fraudulent insolvency arising therefrom against the president of the bank, who was responsible for the making of such illegal loans.

In ground 79 the defendant asserts that the court erred in charging the jury as follows: “Insolvency of a bank alone would not authorize the conviction of the president or directors who were in charge of such bank during the period when it became insolvent, if it did, and when in the process of becoming insolvent, if it became insolvent; but if the State has carried the burden put upon the State and sustained by proof, beyond a reasonable doubt, the truth of the allegations of the indictment and that the bank was at the time alleged and the date alleged insolvent, the law then places the burden on such president or directors having in charge the management of the bank during such period when the bank became insolvent, if it did so as alleged, of repelling the presumption of fraud thus arising, by showing to the reasonable satisfaction of the jury that the affairs of the bank have been legally administered without intentional fraud, or generally with the same care and diligence that agents receiving a commission for their services are required and bound by law to observe; and if such showing is made, of which the jurors will be the sole judges, such defendant would be entitled to an acquittal.” Error is assigned on the ground that the court in effect instructed the jury that the presumption raised by the statute placed the burden on the defendant of rebutting the same by showing that the affairs of the bank had been legally administered and without intentional fraud, or generally with the same care that agents receiving a commission for their services are required by law to observe. Movant contends that the court thereby excluded from the jury, as a means of rebutting such presumption, any other facts or circumstances which might be sufficient to rebut the presumption; and that the court should not have thus limited the jury in considering what, in their opinion, rebutted such presumption, but should have allowed the jury to consider any other legitimate evidence fairly tending to rebut the same. The defendant further insists that this instruction violates the due-process clauses of the State and Federal constitutions. The court did not by this instruction exclude from the consideration of the jury any other facts or circumstances which might rebut the presumption raised by section 28 of article 20 of the banking act, and did not confine the jury to the method of rebuttal specified in said section. On the contrary, as we shall later see, the court did not so limit the jury. This instruction does not violate the due-process clauses of the State and Federal constitutions; and this is so for the reasons given in the division of this opinion dealing with the overruling of the defendant’s demurrer to the indictment.

In ground 81 the defendant excepts, for reasons the same as last stated, to the following charge of the court to the jury: “But if the State has carried the burden put upon the State and sustained by proof, beyond a reasonable doubt, the truth of the allegations of the indictment and that the bank was at the time and on the date alleged in the indictment insolvent, or within a period of four years next preceding the finding and return of the indictment into court, the law would then place the burden on such president or directors having in charge the management of the bank during such period, that is, within a period of four years next preceding the date of the finding and return of the indictment into court, when it is alleged that the bank became insolvent, if it did, as alleged, of repelling the presumption of fraud thus arising by showing to the reasonable satisfaction of the jury that the affairs of the bank had been legally administered without intentional fraud, or generally with the same care and diligence that agents receiving a commission for their services are required and bound by law to observe, that is, within a period of four years next preceding the finding and return of the indictment into court; and if such showing is made, of which the jurors will be the sole judges, such defendant would be entitled to an acquittal.” For the reasons given in the preceding division, the exceptions are without merit.

In ground 82 the defendant alleges that the judge nowhere in his charge instructed the jury that the presumption of guilt arising from the insolvency of the bank might be rebutted by any legitimate evidence fairly and reasonably tending to rebut the same. The movant does not allege that this was error; and we could refuse to deal with this ground for the reason that no sufficient assignment of error is set out therein. But we shall deal with it as if the assignment of error were sufficient. The court did in effect give such instruction to the jury, as follows: “Insolvency of a bank, if brought about by shrinkage, reduction in values, by misfortune or erroneous calculations or bad business judgment, or unintentional bad investment or loans, or a sudden run or unexpected crises, or the like, though done or participated in by the defendant, would not authorize a conviction.” Here the court gave to the jury in effect the instruction which movant in this ground says should have been given. The court thus did not confine and limit the jury to the method of rebutting the fraudulent insolvency of this bank which is provided by section 28 of article 20 of the banking act. So there is no merit in this ground.

In ground 80 the defendant says that the court erred in charging the jury as follows: “Within the meaning of the law, gentlemen, a bank would not be insolvent if its entire property and assets, exclusive of its capital stock due to its stockholders, and also the surplus and undivided profits, if any, are sufficient to discharge its liabilities by a process of liquidation, though it may not be able to pay its debts immediately or to pay or discharge all its obligations on demand; the liquidation mentioned, however, meaning a reasonably prompt liquidation duly carried on, within a reasonable time, considering the nature of the assets and liabilities, and not after indefinite holding with the hope of appreciation or increase in the values; of all of which the jurors would be the sole judges.” The errors assigned are that the court instructed the jury: (a) to exclude the surplus and undivided profits of the bank from its liabilities and assets in determining whether they were sufficient to meet its liabilities; (b) to exclude the capital stock of the bank and its surplus and undivided profits from its property and assets in determining its solvency; and (c) to reduce the gross amount of its property and assets by the amount of its capital stock, surplus, and undivided profits, and thus determine whether its remaining property and assets were sufficient to meet its liabilities. Properly construed, this charge did not instruct the jury to disregard the surplus and undivided profits of this bank in determining whether its assets were sufficient to meet its liabilities. It did direct the jury to exclude the capital stock due to stockholders in passing upon this question, and instructed them that a bank would not be insolvent if its entire property and assets (exclusive of its capital stock due to its stockholders), and also the surplus and undivided profits, if any, are sufficient to discharge its liabilities by a process of liquidation, though it might not be able to pay its debts immediately, or to pay or discharge all of its obligations on demand. The court in effect and properly instructed the jur}^ to exclude as an asset anything due to stockholders on account of their ownership of capital stock in the bank. The capital stock of a bank is not a liability that should be taken into account in determining the question of solvency or insolvency of a bank, under section 28 of article 20 of the banking act. Fordham v. State, 148 Ga. 758 (6) (supra). In this charge the court in effect instructed the jury that the capital stock due stockholders, that is any liability to them on account of their stock in the bank, should not be considered as an asset. The judge did not in effect tell the jury that capital derived from stock subscriptions, or money due thereon, is not an asset of the bank. On the contrary he instructed that they should consider the entire, property, surplus, and undivided profits as assets in determining whether the bank was solvent or insolvent; but should exclude capital stock due to stockholders. In other words, the court instructed the jury that the interests of stockholders in a bank should not be treated as assets in determining this question.

The court was requested to give in charge to the jury the following instructions: (a) “To authorize a conviction of the defendant, you must believe beyond a reasonable doubt not only that the Farmers & Traders Bank became insolvent during the four year's immediately preceding the date of the indictment, but that such insolvency was caused or materially contributed to by some fraudulent act of the defendant himself.” (b) “Even though you should believe that the Farmers & Traders Bank was insolvent at any time within four years prior to the date of the indictment, but that such insolvency existed also more than four years prior to the date of the indictment, you should find the defendant not guilty.” '(c) “If you should find that the Farmers & Traders Bank was insolvent within four years prior to the date of the indictment, but that such insolvency was caused by causes which existed more than four years prior to the date of the indictment, you should acquit the defendant.” (d) “If under the evidence in this case you should find that the Farmers & Traders Bank became fraudulently insolvent more than four years prior to this indictment, that is, prior to the 31st day of August, 1922, I charge and direct that you find and return a verdict of not guilty.” (e) “The burden of proof is upon the State to show that fraudulent insolvency of the Farmers & Traders Bank, as alleged in this indictment, occurred within four years from the date of the finding of this indictment, that is, between the' 31st day of August, 1922, and the 31st day of August, 1926. I further charge you that if under the evidence in this case you should believe that the Farmers & Traders Bank was fraudulently insolvent during the said four years., but you further believe that such fraudulent insolvency occurred prior thereto and merely continued during such period, I charge and direct that you find and return a verdict of not guilty.” (f) “If you believe from the evidence that the offense alleged in this indictment against W. D. Manley occurred more than four years prior to the finding of this indictment, then the defendant should be acquitted and you should return a verdict of not guilty.” To the refusal to give these instructions the- defendant excepts in grounds 83 to 89, inclusive, of his motion. In the charge as given the court instructed the jury that the defendant entered upon the trial of this case with the legal presumption of innocence in his favor, that this presumption continued with him until it was overcome by evidence of such weight and character as to convince the minds of the jurors of his guilt as charged in the indictment beyond a reasonable doubt, and that unless the evidence should convince them to that extent a verdict of guilty would not be authorized. The court further gave the following instructions: (a) “To authorize the conviction of the defendant, the jurors should believe beyond a reasonable doubt that such alleged insolvency of the bank was fraudulent or was brought about and caused by the criminal intention and fraudulent practices of the defendant, either alone or in connection with and knowingly and intentionally aiding and assisting and abetting others named in the indictment.” (b) “If the president of a bank that has become insolvent at the time he was indicted or during his administration should show, or if the evidence should show to the reasonable satisfaction of the jury, that his administration of the affairs of such bank has been without intentional fraud, and that there was no criminal intention or fraud on his part contributing to and aiding in the bringing about of the alleged insolvency of the bank, if it was insolvent, he should be acquitted, although the bank may have become insolvent as alleged.” (c) “To authorize the conviction of the defendant/ the jurors should believe beyond a reasonable doubt that such insolvency of the bank was fraudulent or was brought about and caused by the criminal intention and fraudulent practice of the defendant, either alone or in connection with and knowingly and intentionally aiding and assisting and abetting others named in the indictment, and that such fraudulent practice, if committed, was committed by the defendant within a period of four years next before the finding and return of the indictment into court.” It will thus appear that the instructions requested were fully covered by the charge; and for this reason their refusal does not require the grant of a new trial.

The court refused a request to instruct the jury to return a verdict finding the defendant not guilty, for the reason that under the undisputed evidence the insolvency of the bank, whether fraudulent or not, if its insolvency was shown, occurred more than four years before the finding of the indictment. To this refusal the defendant excepts in the 90th and 91st grounds of his motion for new trial. The refusal to direct a verdict is never ground for reversal. Central of Georgia Railway Co. v. Mote, 131 Ga. 166 (62 S. E. 164); Ivester v. McNicholas, 157 Ga. 755 (3) (122 S. E. 417).

But the point just dealt with is urged by counsel for the defendant under the general grounds that the verdict is contrary to the evidence and to law. It is earnestly urged that the undisputed evidence shows that this bank was insolvent as far back as 1915, that its insolvency continued from that date down to the date of its suspension, and that the defendant could not have brought about or contributed to its insolvency within four years next preceding the return of this indictment. It is true that B. E. Bentley, an expert witness in behalf of the State, testified that he had made an examination and analysis of the books of this bank, and that from such examination and analysis said bank was insolvent as far back as the first of 1915, and that such insolvency had continued from that date down to the time the bank closed its doors and went into the hands of the superintendent of banks for liquidation. This opinion of this witness is competent evidence on the question of the insolvency vel non of this bank. Such an opinion is not conclusive upon the jury. The testimony is intended to aid them in coming to a correct conclusion upon the subject; but the jury is not bound by such opinion and can disregard it. Choice v. State, 31 Ga. 424 (14); Wilcox v. Hall, 53 Ga. 635 (3); Baker v. Richmond City Mill Works, 105 Ga. 225 (31 S. E. 426); Bonds v. Brown, 133 Ga. 451 (2) (66 S. E. 156); Martin v. Martin, 135 Ga. 162 (68 S. E. 1095). The jury may deal with such testimony as they see fit, giving credence to it or not. The consideration such evidence is entitled to is a question solely for the jury. Merritt v. State, 107 Ga. 675 (4) (34 S. E. 361); Wall v. State, 112 Ga. 336 (2) (37 S. E. 371); Rouse v. State, 135 Ga. 227 (69 S. E. 180). There are reasonable deductions from the evidence in the case which could lead the jury to the conclusion that the insolvency of this bank took place within four years next preceding the return of the indictment. We can not say as a matter of law that the evidence demanded a finding that its insolvency, was of earlier date. The court left to the jury the question whether it had occurred within four years prior to the finding of the indictment, and instructed them that the evidence must show that it did occur within said four years, before they would be authorized to find the defendant guilty.

The defendant requested the court to give to the jury the following instructions: (a) “Even though you should find that in the management of the Farmers & Traders Bank the defendant, alone or in connection with others, had been guilty of violations of laws or of conduct which you might consider as fraudulent, you would still not be authorized to convict the defendant unless you further believe beyond a reasonable doubt that such fraudulent conduct or violations of law, if any existed, produced insolvency in the bank or was a material contributory cause thereof.” (b) “Despite any presumption arising from proof of insolvency of the Farmers & Traders Bank, in the event you should believe beyond a reasonable doubt such proof has been made, the defendant should be acquitted, unless, upon a consideration of all the evidence in the case, you should believe beyond a reasonable doubt that such insolvency was fraudulent, and that the defendant participated in the fraud producing such insolvency.” The defendant assigns, error upon the refusal to give these instructions, in the 117th and 118th grounds of his motion for new trial. The requested instructions were fully covered by the court in its charge to the jury, as will appear from the excerpts set out in the 17th division, supra. For this reason the refusal to give in charge to the jury the instructions as requested does not require the grant of a new trial.

The defendant requested the court to charge the jury as follows : “The defendant himself need not introduce any evidence in order to repel any presumption arising from proof of the insolvency of the bank, in the event it has been proved, but may repel the presumption, if he can, by the testimony and evidence introduced by the State.” He assigns error upon the refusal of the request, in the 119th ground of his motion for new trial. The refusal was not erroneous. The evidence introduced by the State in this case does not rebut or tend to rebut the presumption against the defendant, arising from the proof of insolvency of this bank. On the contrary such evidence tends to establish the truth of this presumption. The requested instruction not being warranted by the evidence, the court was justified in not giving it in charge to the jury. McCoy v. State, 15 Ga. 205 (3); Brock v. State, 22 Ga. 98 (2); Nutzel v. State, 60 Ga. 264 (3). Bésides, the court instructed the jury that the failure of the defendant to make a statement should not be taken against him, that no presumption arose against him because he failed to make a statement, and that his plea of not guilty was a denial of all the allegations of the indictment.

In ground 120 the defendant alleges that the court erred in admitting in evidence, over his objection, a document referred to as schedule 7 by the witness Cagle, as purporting to show the assets and liabilities of the Farmers & Traders Bank on July 12, 1926, and what of said assets were appraised as good, what were appraised as doubtful, and what were appraised as worthless, in the appraisal said to have been made by Lewis, Morris, Smith, and Arnold. The grounds of objection were that the schedule was hearsay and res inter alios acta, that he was not bound by the valuation placed on the assets by said appraisers, and that their action as written up in this schedule was not admissible against him. In the 121st ground he insists that the court erred in admitting, over his objection on the same grounds, a document or schedule referred to by the witness Cagle as purporting to show the notes receivable in the Farmers & Traders Bank on July 12, 1926, which were said by B. E. Lewis to have been negotiated to the Farmers & Traders Bank by the Bankers Trust Company, to show which .of said notes were appraised as good, which were appraised as doubtful, and which were appraised as worthless, in the appraisal said to have been made by Lewis, Morris, Smith, and Arnold, referred to as schedule 23. These documents were admitted, not for the purpose of showing the truth of the facts therein recited, but solely for the purpose of showing what bills receivable of the bank were claimed by the State to be good, doubtful, and worthless. The State had undertaken by proof to show which of these bills receivable were good, which were doubtful, and which were worthless. These schedules were admissible for the purpose of informing the jury what notes the State claimed to be good, what notes the State claimed to be doubtful, and what notes the State claimed to be worthless; these notes .being very voluminous. State v. Brady, 100 Iowa, 191 (69 N. W. 290, 62 Am. St. R. 560, 36 L. R. A. 692); Northern Pac. Ry. Co. v. Keyes, 91 Fed. 47; 21 C. J. 896, § 1094, 4.

We have carefully read and considered the evidence in this case, and find that the verdict is supported thereby. In fact we do not see how the jury could have reached any other conclusion than that expressed in their verdict.

Judgment affirmed.

All the Justices concur, except Athinson and Hill, JJ., who dissent.