The record and briefs in this case are very voluminous. I regret exceedingly that, with the press of other cases and the almost necessary haste incident to the adjournment of the term, we did not have the opportunity for more repeated consultations and consideration of this case.
There are several difficult questions presented. With the disposition of the case by the court, I think it altogether unnecessary to express an opinion on many of them. In fact, it occurs to me that the opinion on all of them except as to the sufficiency of the indictment, as the court holds it fatally defective, are obiter dicta. However, in view of the opinion of the court prepared by my brother, Presiding Judge Davidson, and handed down, I deem it necessary to express my opinion very briefly on some of the questions discussed and determined by him in the opinion. I will merely state them without argument or citation of authority.
1. I incline to the opinion that the indictment is sufficient.
2. I think the allegations of the receipt and deposit of the check sufficient. That the title of the check passed, under the facts proven, from the depositor to the bank.
3. I express no opinion as to the sufficiency of the evidence to establish the insolvency of the bank at the time of the deposit.
4. Many of the objections to the testimony of the witness McBride were more to the weight than the admissibility thereof. Where hearsay, it was clearly inadmissible. Much of his testimony was admissible, in my opinion.
5. The knowledge of the appellant of the insolvency of the bank, if so, as well as the solvency or insolvency thereof, could be shown by facts and circumstances, as well as by direct testimony, and in my opinion the evidence on these points was amply sufficient to submit these questions to the jury for its findings.
6. I expressly dissent from the opinion of the court as written by Judge Davidson, wherein it holds that the statute under which this prosecution was had should be read as if certain words were inserted therein which are not therein. That is for the Legislature, and not this court.
7. I am clearly of the opinion that the charge of the court as to what is insolvency or in failing circumstances under said statute was wrong, and that the charge requested by appellant, as quoted in the opinion herein on that subject, should have been given instead. And for this reason, in my opinion, the case should be reversed and remanded.
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