Appellant has a very lengthy motion for a rehearing, and a very able and extensive brief; and we have given both of them painstaking consideration. While every ground in the motion for a new trial is again brought forward, and it is insisted that each presents error, yet, the main insistence seems to be placed on two grounds, — the first of which is that the court erred in overruling the application for a continuance, being the most serious question; the second, that the charge is erroneous in that it did not require the jury to find that Mr. Brown gave personal assent to the reception of this deposit is, in our opinion, without merit. The proof unquestionably shows, in fact, there is no denial of the fact, that appellant went to McDade, opened a private bank and held himself out as doing a general banking business. A banker solicits and expects deposits, and when he opened the doors of this bank (being the sole proprietor), and put officers in charge, he will be held in law to have given his assent to each and every deposit received, so long as he holds himself out as doing this character of business. If in the evidence there was any question raised that he had instructed those in charge not to receive deposits, or this deposit, or that it was not the legitimate business of a banker, or this bank, there might be some merit in this contention. But the fact that after opening the bank, he placed others in charge to do *Page 368 the business, and he went to Houston, would not raise the issue that he did not assent to the deposit, when he knew this would be a legitimate and necessary part of the business he had opened in McDade.
As to the motion for a continuance, we have again studied it, in connection with the entire record, and in our action on this ground of the motion for a new trial, we may have erred in the original opinion. One of the main questions to be passed on by the jury was, was appellant solvent or insolvent at the time the deposit was received? Appellant contends that if the testimony of these absent witnesses were believed by the jury, their testimony would show that his assets were worth $97,315, while his liabilities were much less than this amount. From the former reading of the record, we did not arrive at that conclusion, and hardly think it would justify such a conclusion even now. However, if the testimony of these witnesses would show him solvent at the time the deposit was received, then, of course, he would not be guilty of the offense charged in the indictment. That the diligence used as to the witnesses N.K. Freeman, W.E. Gray and P.O. Endt was sufficient must be conceded. By Freeman he stated he expects to prove that the McDade Brick plant was of the approximate value of $18,000. Other witnesses place it at hardly so many hundreds; consequently, if the witness would so testify he is entitled to have the jury pass on the matter. By the witness Gray he expected to prove the value of the assets of the bank at Elkhart, and of which appellant was the owner, and he would value these assets at $13,000. The value of the assets of this bank was not seriously questioned on this trial. By P.O. Endt, he states, he expects to show facts that will tend to prove the value of the stock of the Brown Brick and Tile Company, and this would go materially to show whether or not he was solvent. He also wanted the testimony of the two witnesses whose depositions he sought as to the value of the stock of the Brown Brick and Tile Company. To our mind the testimony would show that this tile company was overcapitalized, and the stock worth much less than par, but if these three witnesses would testify as stated in the motion, their testimony would have a tendency to show that it was really of par value, and if so, it would have considerable bearing on whether or not appellant was solvent. Taking into consideration the efforts the record discloses appellant used to get these witnesses, and, while viewing the matter as we do from a careful perusal of the record, it is extremely doubtful to us if they had been present and testified as it is claimed they would, it would have resulted in a different verdict; yet, the question is, have we the right thus to weigh the testimony? Or was this the province of the jury? He made efforts to get this testimony; it was through no fault of his that three of them were not in attendance, and he used reasonably fair diligence to obtain the depositions of the other two. Under the circumstances we may have been in error in holding that there was no error in overruling this application for a continuance, it being the first application.
Rehearing granted and the case is now reversed and remanded.
Reversed and remanded. *Page 369