(dissenting). In defining insolvency the court gave the jury this instruction: “ (3) A bank is ‘insolvent’ within the meaning of these instructions when its property and assets are of such character and value that it can not meet its demands in the ordinary course of its business.” The .defendant asked the court to give this instruction, which was refused: ‘ ‘ The court instructs . the jury that the knowledge, which the law requires defendant to have had as to insolvency of the bank, as used in the instructions given in this prosecution, means a guilty knowledge, and not an innocent, actual ignorance arising from neglect to keep posted or to inquire.” Section 460, Ky. St. (Russell’s St sec. 4174), provides: “All words and phrases shall be construed and understood according to the common and approved usage of language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such meaning.” According to common usage a person is insolvent when his assets are not sufficient in value to meet his debts; but, in insolvency and bankruptcy statutes, the word has been given a narrower moaning when applied to persons in trade, and it there signifies inability to pay one/s debts as. they fall due in the ordinary course of business, or, as it is sometimes stated, a bank is insolvent when it can not pay its depositors on demand according to its promise. 5 Cyc. 559, and cases cited.
In 16 Am. & Eng. Enc. of Law, 636, 637, the eases are thus well summed up: “As used in the insolvency and bankruptcy laws, *102especially when applied to traders or persons engaged in commercial pursuits, the term 'insolvency’- generally means the condition of a person who is unable to pay his debts as they become due in the ordinary course of business. According to this definition, a person may be insolvent though he has assets exceeding in value the amount of all his liabilities; and so it has been held that a partnership, as such, may be insolvent though one or more of the individuals composing it are solvent. In its popular and general sense the term 'insolvency’ denotes the insufficiency of the entire property and assets of an individual to pay his debts.”
In 22 Cyc. 1256, the conflicting lines of authority are thus set out: "Insolvency has been differently defined by different courts, and it may be said to have two distinct and well-defined significations. As popularly understood, the term denotes the state of one whose assets are insufficient to pay his debts; or his general inability to pay his debts. But it is, how ever, frequently used in the more restricted sense to express the inability of a party to pay his debts as they become due in the ordinary course of business.” The eases sustaining the popular meaning of the word are collected in 4 Words and Phrases, pages 3647, 3648; and the cases sustaining the nárrower or more technical definition are given on pages 3650, 3652. All the cases and all the text-books recognize the two definitions of the word. No text-writer and no court has .attemptéd to say that the two definitions mean the same thing-. The narrower definition has been applied to banks and persons in commercial pursuits under insolvency laws, and was adopted by the circuit court on the trial.
*103The question we are to determine is in which sense the word is used in the statute before us. By section 584, Ky. St., each bank shall keep on hand at all times at least 15 per cent, of its total deposits, provided that any bank shall not be required to keep on hand more than 10 per cent, of what are known as savings deposits. The Legislature thus contemplated clearly that the bank might lend out 85 per cent, of its ordinary deposits and 90 per cent, of its time deposits; and, if a time of panic came when its depositors should draw out their money, it might well happen that a bank, however solvent, would be unable to meet for a time the demands of its depositors as they called for their money. In the fall of 1907 a panic swept over the country, and the money stringency caused thereby had not been relieved when this bank failed in April, 1908. During the panic it is a matter of common knowledge that large city hanks refused to cash checks in money, and that it was impossible to draw money out of a bank, although the bank was entirely solvent in the ordinary sense of the word. Nio bank should be required to suspend in such a state of facts, when the trouble is only temporary, and its assets are abundant to protect its liabilities. The closing of the bank, however it might be explained, would increase panicky conditions and business uncertainty. In such a case the depositors would be the first to suffer; for, when a bank suspends, a loss is necessarily thrown on the depositors. The stockholders of the bank would also sustain loss.
The statute should not receive a construction that would make it hazardous for the officers of a bank to keep it open in a time of money stringency like that referred to, when it had abundant assets to protect *104its creditors. The officers of the bank are not only trustees for the stockholders, but hold the money intrusted to them for the benefit of the depositors. They must necessarily exercise judgment as to when the bank is insolvent, and should no longer receive deposits. But to require the bank closed whenever it could not pay its depositors on demand in acordance with its promises would be to establish a rule that would not be for the benefit of the depositors or the stockholders in the bank, and it would make the business of conducting a bank so perilous that we can not believe the Legislature intended such a result, when it authorized the bank to lend out 85 per cent, or 90 per cent, of its deposits, and it was well known that if this was done, times would come when the bank could not pay its depositors on demand in accordance with its promises. This view of the statute was taken by the Supreme Court of Wisconsin in Ellis v. State, 138 Wis. 513, 119 N. W. 1110, 20 L. R. A. (N. S.) 444, and of Minnesota in State v. Clements, 82 Minn. 434, 85 N. W. 229. Criminal statutes are not to be extended by construction beyond the fair, natural meaning of the words used. A felony is never created by implication, or doubtful interpretation.
The question turns simply on the proper construction of the statute. The words “insolvent” arid “insolvency” are used in a number of other sections of the Kentucky Statutes, and in every instance the words are used in their common meaning. Sections 175, 394, 901, 903, 1910, 2183 Ky. St. They are similarly used in the Civil Code of Practice, see. 168. In the entire legislative history of the state, so far as we can discover, they have never been used in any other sense, and they have been uniformly so *105used in the opinions of this court. There being nothing in section 597 to show, that the .words are there used in a different sense, they must be given their usual meaning.
The defendant is not guilty under the statute unless he knew that the bank was insolvent. If he had neglected his duty, and from neglect had remained in ignorance of the condition of the bank, he is liable civilly; but he is not for neglect of duty responsible as a felon. On tlie other hand, he can not shut his eyes to the facts before him and say that he did not know what was patent to a man of ordinary prudence situated as he was. In lieu of construction 3 given by the court, and instruction G- asked by the defendant, the court should have given the jury this instruction: “A bank is insolvent, within the meaning of these instructions, when the fair market value of its property and assets, realizable by ordinary care in a reasonable time, is insufficient to meet the demands against it. Ordinary care is such care as is usually exercised by persons of ordinary prudence under like circumstances. The defendant had knowledge that the bank was insolvent if the facts actually known to him were such as would cause a man of ordinary prudence, situated as he was, to so conclude. ’ ’
The instruction which the court gave could not have been understood by the jury to mean the same as that indicated. The record shows that it was not so intended by the court, and its phraseology evidently shows that the court intended to tell the jury that the word “insolvency” as used in the instruction meant an inability on the part of the bank to meet the demands against it in the ordinary course of business. That this was understood by counsel is plain from the record. The prosecution had read in *106evidence the affidavit filed before the Secretary of State for the appointment of a receiver, and that affidavit stated in effect that the bank was unable to pay its depositors according to its promises in the ordinary course of business. The commonwealth attorney in his closing argument read that affidavit to the jury, and also read to them the instruction of the court. He then said: “Pardon, me, if I tell the jury when a bank is insolvent. It is insolvent, within' the meaning of this instruction, when its paper and assets are of such a character and value that' it can not meet its demands in the ordinary course of its business. I tell you that affidavit states that the bank was then insolvent.”
Under this argument made by the commonwealth’s attorney in his closing speech in the presence of the court, and with its'tacit approval, the jury could not have given the instruction any other meaning than that the bank was insolvent if it could not pay its depositors in the ordinary course of business. Por the affidavit is in these words: '' The affiant, J. Otis Parrish, states that he is cashier of the Owensboro Savings Bank and Trust Company, and while he does not regard the said bank and trust company as being insolvent, but, on account of the recent panic and the stringency of the money market, it has not on hand at this time the legal reserve provided for by law, and has not the sufficient currency and cash reserve to meet its obligations as they mature.” When the attorney for the. commonwealth, after reading the instruction, read from the affidavit the statement that the bank had not sufficient currency and cash reserve to meet its .obligations as they matured, and then said in the presence of the court, “I tell you that affidavit states thaf the bank was then insolvent,” what *107other conclusion could the jury draw hut that the hank was insolvent if it could not pay its depositors on demand, no matter how abundant its assets might have been then deemed for the ultimate payment of its debts? In Ellis v. State, 138 Wis. 513, 119 N. W. 1110, 20 L. R. A. (N. S.) 444, and State v. Clements, 82 Minn., 434, 85 N. W. 229, judgments of conviction were reversed for the giving of an instruction practically the same as that given here. See, also, 37 Cent. Law J. 147.
It is earnestly insisted that the defendant was not prejudiced by the instruction, that the facts clearly show that the bank was insolvent, and that the defendant could .not have known it. But this is a question for the jury. If the defendant’s evidence was true, he had reason to believe the assets of the bank were sufficient to meet its liabilities, and a previous jury to whom the case had been submitted failed to agree upon a verdict. It is true that by section 340 of the Criminal Code a judgment of conviction shall not be reversed for an error of law appearing on the record when, upon a consideration of the whole case, the court is satisfied that the substantial rights of the defendant have not been prejudiced thereby. But this does not mean that this court is to be the -trier of the facts, and that a judgment of conviction is not to be reversed where upon the evidence we may conclude that the defendant is guilty. The Constitution guarantees to the defendant a trial by jury. A jury trial is a mockery if the real merits of the defendant’s case are not submitted to the jury. Where the defendant has had substantially a fair trial on the merits of his case before a jury, a judgment of conviction should not be reversed for minor errors appearing in the record. Bn,t in this case *108the qeustion when a bank is insolvent and what constitutes knowledge of that fact lay at the basis of the prosecution.
If these questions were not properly presented to the jury by the instructions, then the defendant has not had a jury trial substantially fair on the merits of his case, and when he has not had substantially a fair trial on- the merits of his case, his substantial rights have been prejudiced; for there is no right of the defendant in a criminal case more, substantia] than the right to a jury trial and to have the witnesses face to face. When the defendant has not had substantially a fair trial upon the merits of his case, we can not determine his guilt or innocence here.
To say that a judgment of conviction shall be afr firmed, where the defendant’s case has been tried upon a false issue, because he is guilty is, in effect, to say that he is so guilty that he is not entitled to a jury trial at all; for why go through the form of a trial if the substance is lacking? To say that evidence was admitted showing that the bank was insolvent, and that, therefore, the defendant was not prejudiced, is to forget that the jury tries the case under the instructions of. the court, and what good did it do the defendant to have the evidence admitted when, by the instructions as construed by the commonwealth attorney in his concluding argument, made with the tacit approval of the court, it was insisted that the affidavit filed before the Secretary of State showed that the bank was insolvent? The amendment to the Code referred to was made some 30 years ago, and not a term of this court has passed since at which criminal cases were not reversed when this court believed the defendant guilty, but granted a new trial because he had not had a fair trial upon *109the merits of his case; the reason for the rule being that under the Constitution the defendant is entitled to a trial upon the question of his guilt or innocence, not before this court, but before a jury of the vicinage.
The court, in its • array of the facts of the case, forgets that it states the facts in the light of the present with all that two or three years has brought out, while the defendant acted simply with the light before him in a time of panic, and before values had shrunken as they appear in the light of this record. The opinion of the court in effect, concedes that the instruction I have above outlined is correct, and should have been given. The opinion is rested upon the ground that the instruction given by the court is, in substance, the same as that I have outlined. No case cited by the court so held. In the cases cited in the opinion the technical definition of the word “insolvency” was followed, and the popular meaning of the word was rejected. In none of these states was there a statute declaring that, words should be construed according to their popular meaning. In none of them does it appear that the word “insolvency” was used in its popular sense in all other places in the statutes there in force, or that in the entire legislative and judicial history of the state the word had always been used in its popular sense. To say that the narrower and technical definition is the same as the popular meaning of the word is to say that the many learned courts, who deliberately rejected the popular meaning, and framed the technical definition, did not understand the language which they used, and to deny to the words their usual and natural meaning.
I, therefore, dissent from the opinion of the court.
Barker, J., concurs in this dissent.