#### The People of the State of Illinois, Defendant in Error, v. Oliver F. Paisley et al., Plaintiffs in Error.

Gen. No. 23,415. (Not to be reported in full.)

Error to the Criminal Court of Cook county; the Hon. George Kebstbit, Judge, presiding.

Heard in this court at the October term, 1917.

Reversed and remanded in part and affirmed in part.

Opinion filed January 28, 1918.

Statement of the Case.

Prosecution by the People of the State of Illinois, plaintiff, against Oliver F. Paisley, James J. Paisley and William H. Paisley, defendants, for receiving as bankers deposits from Margaret Basch to the value of $700, on September 16, 1916, when they were knowingly insolvent, and causing loss of such deposits in violation of section 25a, ch. 38, Criminal Code (J. & A. ¶ 3617). From a judgment on verdict finding all defendants guilty and fixing punishment of William H. Paisley at one year in the penitentiary without fine and of the other defendants at three years in the penitentiary and a fine of $1,400 each, each defendant brings error.

The defendants operated three private banks in north Chicago as partners. The banks were closed September 19, 1916, by the voluntary act of defendants, and on application of one of them a receiver was appointed by the Superior Court of Cook county. Soon thereafter on involuntary bankruptcy proceeding in the Federal District .Court, the Chicago Title & Trust Company was appointed receiver of the three banks.

Marshall Solberg and Harry L. Shaver, for plaintiffs in error.

*296Abstract of the Decision.

1. Indictment and infobmation, § 32 * —what does not invalidate indictment. Charging in an indictment an act which is by statute a misdemeanor to have been “feloniously” done, does not invalidate the indictment if it is in other respects without fault.

2. Banks and banking, § 64*—when indictment is against individual bankers. Where an indictment recited in the inducement part that the defendants were partners in the banking business but in the charging part averred the act of receiving deposits while knowingly insolvent as that of the defendants as individuals, the indictment was against them as individuals and not as a firm.

3. Banks and banking, § 64*—admissibility of partnership’s books in criminal prosecution. The books of a banking partnership are admissible, against the partners in a prosecution against them as individuals for receiving deposits while knowingly insolvent.

4. Banks and -banking, § 64*—when evidence of depositors as to loss of deposits admissible. Evidence of numerous depositors in a private bank conducted as a partnership that.they had made deposits in the bank and had lost them, held admissible in a prosecution against the individual partners for receiving deposits while insolvent, where the defendants did not concede the facts testified to.

5. Banks and banking, § 64*—what admissible as part of res gestx in criminal prosecution. Transactions prior to receipt of a deposit, charged in an indictment to have been while defendants were knowingly insolvent, in which defendants failed to pay over to the parties entitled to same or misappropriated certain collections or knowingly made false statements to induce deposits, held admissible as parts of the res gestx and tending to prove the issue under the indictment.

6. Banks and banking, § 64*—when witness is competent to testify as to insolvency of bank. Evidence of one who was in charge for a receiver of a bankrupt bank as to the insolvency of the bank, gathered from his possession and knowledge of all of the bank’s assets and books, held admissible and competent and not to invade the province of the jury, where the witness was shown to have *297had experience in such matters and gave detailed information regarding the assets and books and a correct definition of insolvency.

*296Maclay Hoyne, for defendant in error; Edwin J. Raber and Edward E. Wilson, of connsel.

*

See Illinois Notes Digest, Vols. XI to XV, and. Cumulative Quarterly, same topic and section number.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

*

See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Holdom

delivered the opinion of the court.

*2977. Banks and banking, § 64 * —when finding of insolvency warranted. Certain books, papers and documents of a bank charged in an indictment to have been insolvent at a time a certain deposit was received, held to warrant a finding of insolvency independent of the competency of the witness testifying to same.

8. Banks and banking, § 64*—when evidence as to value of leasehold of insolvents properly excluded. Evidence as to the value of a certain 99-year leasehold interest owned by the insolvent defendants, charged in an indictment' with receiving a certain deposit while knowingly insolvent, based upon a contemplated building upon the land which was not yet constructed or contracted for and upon the estimated rentals of the building when it should be constructed, held properly excluded.

9. Banks and banking, § 64*—when value of hank stock as assets cannot he calculated. In a criminal prosecution for receiving deposits while knowingly insolvent, the value of certain bank stock as assets of insolvent defendants held too uncertain to be capable of calculation, where certain banks of ample means had refused to retain same by paying assessments thereon and other banks of small means had retained same and assumed payment of such assessments.

10. Banks and banking, § 64*—when evidence in criminal prosecution shows payment of draft. In a criminal prosecution of private bankers for receiving deposits while insolvent, evidence held sufficient to show payment of a draft deposited with defendants, where it was shown the bank on which the draft was drawn paid same and defendants thereafter sent the depositor a note promising to pay the amount in full, and entry of the amount was made by defendants on their bank books and on the depositor’s pass book, and defendants received credit for the draft through their clearing-house representative, and the draft itself in evidence was marked “paid.”

11. Banks and banking, § 64*—when knowledge of insolvency shown. Evidence held to sustain the finding that defendants were insolvent and knew they were so at and for a long time prior to the time they received the deposit charged in the indictment against them.

12. Banks and banking, § 64*—duty of hanker to know whether insolvent. A private banker holds himself out to the public and to his customers as being possessed of money and of capital, and, therefore, to be safely trusted, and it is his duty to know, and he is under all ordinary circumstances bound to know, whether he is *298solvent, and it is criminal negligence of him not to know of his insolvency.

13. Banks and banking, § 64 * —propriety of instruction as to form of verdict in criminal prosecution. In a criminal prosecution of private hankers for receiving deposits while knowingly insolvent, an instruction as to the form of the verdict in the language of the statute held sufficient

14. Banks and banking, § 64*—what is proper fine for receiving deposit while Tcnowingly insolvent. The fixing in the verdict, on conviction under an indictment against persons conducting a banking institution for receiving a deposit while knowingly insolvent, of a fine at an amount which was twice that of the deposit, held sufficient to comply with the statute.

15. Banks and banking, § 64*—what is proper punishment for receiving deposits while Tcnowingly insolvent. The provision of the statute that the punishment on conviction for receiving deposits in a hanking institution while knowingly insolvent shall he a fine of double the amount of the deposit is mandatory and cannot he dispensed with hy imposing no fine, but a jury may dispense with the additional part of the punishment of imprisonment authorized hy the statute.

16. Banks and banking, § 64*—extent of punishment for receiving deposits while insolvent where several defendants. The punishment on conviction under an indictment against several defendants as hankers for receiving a deposit while knowingly insolvent is as to each defendant, and the fine is the amount fixed by the statute.