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Opinion of the Court.

venire issued December 2, 1895. The court opened December 3, 1895, and the indictment was returned December 12, yet defendant did not file his plea in abatement until December 17. The plea does not allege want of knowledge of threatened prosecution on the part of defendant, nor want of opportunity to present his objection earlier, nor assign any ground why exception was not taken or objection made before; and, moreover, the plea is fatally defective in that, although it is stated that the drawing “tended to his injury and prejudice,” no grounds whatever are assigned for such a conclusion, nor does the record exhibit any such.

2. That the court erred in allowing the jurors to take notes.

It appears from the bill of exceptions that one of the jurymen asked the court if he could take notes and jot down any items on paper,” and that the court responded: “Certainly, you have a right to assist your memory in any way that is consistent with your conscience.” To which defendant excepted. The court subsequently admonished the jury that this was simply for the personal convenience of the juror; that he wished them to understand that their memory and recollection of the testimony were to control in arriving at a verdict; and that they should not be influenced in the least by the juror's notes.

The exception saved was to the permission to take notes and not to the use of them in the jury-room. But the record does not show that any notes were taken, and there is nothing for the exception to rest on.

3. That the court erred in refusing to allow the witness McIntyre to answer this question propounded by defendant's counsel : “Do you know what his [Agnew's] commercial rating was at that time?”

McIntyre was cashier of the First National Bank of Ocala at the time of the alleged criminal misapplication of its funds, and had testified fully, on behalf of plaintiff in error, as to his financial condition and standing, when he was asked this question. We hold the ruling of the court correct. The point of inquiry was Agnew's actual financial condition or what he knew or must be held to have known or actually and with

Opinion of the Court.

reason believed that it was, and his commercial rating was not relevant.

4. That the court erred in allowing the witness McIntyre to be asked on cross-examination why he resigned as cashier of the bank in June, 1894, and in permitting him to answer the question.

The criminal acts charged in the indictment were alleged to have been committed in January, February and May, 1894. McIntyre was cashier of the bank during that period and his resignation of that office was not accepted until June, 1894. The ground assigned for the objection was that the testimony was immaterial, and the court said : “ That might be relevant and might not. If he resigned because he knew that Mr. Agnew's guarantee was not good for anything, that might be relevant."

The record thus continues:

"Q. Didn't you attempt to resign as cashier of that bank previous to the time when you did actually resign? A. Yes sir. I offered my resignation at the regular annual meeting of the stockholders in January, 1894. Q. I will ask you why you tendered your resignation at that time as cashier of that bank? The defendant renewed his objection to this question as immaterial ; but the court overruled the objection and allowed the question to be answered ; to which decision of the court the defendant excepted. A. I cannot state any one particular or special reason for tendering it. In 1893, during the time when all banks were having hard times, of course the banks here had hard times, and I just simply made up my mind then that until things got back to their normal condition again I was going to get out of that business right there. Q. So that your reason was just because you wanted to quit the banking business. A. I would not say that that was the reason. Q. What we want is the reason. A. I would state that, of course, it is very apparent I was not altogether satisfied with the business, that is my reason for giving it up; I was not satisfied. I cannot state any particular. Q. You were not satisfied with the business or the manner in which the business was conducted, which? Defendant ex

Opinion of the Court.

cepted to this question. By the court: To pursue that line of questioning would be bringing rather irrelevant and general matters which might possibly influence the jury and which might not be relevant in this issue unless he can state some definite thing. Mr. Clark (district attorney): I will ask a straight question. Q. I will ask you if it is not true that you tendered your resignation and made up your mind to quit the service of the bank on account of the acts and doings of Mr. Agnew, president of the bank, similar to this bond transaction. The defendant objected to this question as immaterial and leading, but the court overruled the objection and allowed the question to be answered ; to which decision of the court the defendant excepted. A. As I said, there was no one special reason that I could mention that caused my resignation. By the court: If you cannot state anything definite, the court does not want any general information or implication.”

We think there was no error committed in this regard. This witness was the officer next in rank to the president. He had testified on defendant's behalf and his personal action was relevant on cross-examination as testing his testimony-inchief. If his voluntary resignation had no connection with the conduct of his superior officer, his answer could not be injurious. If it had, then that fact tended to weaken any evidence he might have given in extenuation of the action of that officer. Besides, these answers of the witness were practically immaterial.

5. That the court erred in refusing to allow the witness Barnett to testify as to whether he considered Agnew's guarantee of $20,000 Globe Phosphate bonds, at the time he made it, good, and in striking out the testimony of the witness ; and in not allowing the witness Stewart to testify as to the rating, by Dun's Commercial Agency, of Agnew at the time he gave the guarantee of $20,000.

McIntyre had testified that he had made out two deposit tickets in favor of Agnew and at his request, one dated February 12 and the other May 12, 1894, crediting him with depositing $10,000 in bonds in each instance; that the bonds referred to were Globe Phosphate bonds; that he had the

Opinion of the Court.

bonds in his possession when he made out the deposit slips; that the bonds were for $10,000 each; that Mr. Agnew asked him to give him credit for the bonds, $10,000 each time; that in each instance Mr. Agnew stated that “ he would be personally responsible to the bank that these bonds would be all right. He would guarantee the bank both principal and interest; that he would make a written guarantee at any time I would write it out." Witness further identified a guarantee dated February 12, 1894, as written by him, and signed by Agnew in his presence, which was read in evidence.

The witness Barnett was president of the National Bank of Jacksonville, Florida, and was called as a witness on behalf of defendant. The question put to bim was: “Are you sufficiently acquainted with Mr. Agnew's standing in the spring of 1894 to testify as to whether or not you considered his obligation, guarantee or indorsement at that time good for $20,000? Mr. Clark. Wait a moment. A. Yes, sir; I considered him good.” The government asked that this answer be stricken out. The court said : “Any testimony that would show positively the financial condition of Mr. Agnew at that time, not in the commercial world — the opinion of what his guarantee would be taken for by others — is not a true test of what he knew himself. The opinion of others as to his standing at that time I do not think should be introduced to determine the value of that guarantee"; and sustained the motion. The court was right in this ruling. On the question of value to Agnew's knowledge, Barnett's opinion of Agnew's responsibility was irrelevant.

The witness Stewart was the agent of R. G. Dun & Co., a commercial agency, in charge at Jacksonville, Florida. Defendant offered to show that Dun’s Commercial Agency rated him at that time at a certain amount of money. The court declined to admit the evidence, and correctly ruled :

“The question in this case is what was his intent, and he knew himself what that guarantee was worth, and that guarantee was worth just as much as he would be able to make it worth in a case of emergency. The question here is not how much Mr. Agnew was worth, but the question is how much

Opinion of the Court.

he knew himself to be worth at that time and how good he knew his guarantee was. I consider in that case that if he had good grounds to believe that he was perfectly able to comply with that guarantee in every way and according to his own financial condition at that time - had no doubt in his own mind — I will admit that such positive evidence as that might be relevant to go to the jury to show he had no intent to injure or defraud the bank, but what the opinions of the financial world were in regard to his condition is not the best evidence.”

6. The tenth assignment alleged error in several distinct parts of the charge of the court, but in argument only one out of six exceptions saved thereto was relied on, namely, to the following

The court advised the jury that in determining defendant's intent they might consider testimony tending to show that defendant, without notice to the board of directors, and without their knowledge or consent, had invested one half the bank's capital in the bonds in question, and then said : “The rule of law in regard to intent is that intent to defraud is to be inferred from wilfully and knowingly doing that which is illegal, and which, in its necessary consequences and results, must injure another. The intent may be presumed from the doing of the wrongful or fraudulent or illegal act, and in this case, if you find that the defendant placed that which was worthless or of little value among the assets of the bank at a greatly exaggerated value and had that exaggerated value placed to his own personal account upon the books of the bank, from such finding of fact you must necessarily infer that the intent with which he did that act was to injure or defraud the bank, but this inference or presumption is not necessarily conclusive. There may be other evidence which may satisfy the jury that there was no such intent, but such an inference or presumption throws the burden of proof upon the defendant, and the evidence upon him in rebuttal to do away with that presumption of guilty intent must be sufficiently strong to satisfy you beyond a reasonable doubt that there was no such guilty intent in such transaction."

Undoubtedly, in criminal cases, the burden of establishing

VOL. CLXV-4

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