deposits when his bank is insolvent, the capital stock and suplus fund cannot be considered as liabilities or debts in determining the insolvency; otherwise, the greater the capital of the bank and the larger its surplus fund, the more insolvent it will be. The contrary is the actual fact. The capital and surplus of a bank are its resources which may be used to pay its depositors and other creditors, when there have been losses by loans or otherwise. If a bank, by using its capital or surplus, or both, can pay promptly its deposits and other debts, as they become due in the ordinary course of business, it is not insolvent. Upon the books and in the official statements of a bank, capital stock and the surplus fund are denominated as liabilities, but they are resources of the bank with which to transact business. more capital a bank has, the better able t is to meet its deposits and other debts. The more surplus on hand, the greater its ability to pay promptly its deposits and other debts. If a bank is able to pay promptly every depositor and every other creditor in the ordinary course of business, the bank

The

is solvent, whether there is any surplus or capital to be distributed afterward to stockholders or not."

But in some jurisdictions, in criminal proceedings against the officers of a bank for causing insolvency by their intentional fraudulent acts or for receiving deposits knowing the bank to be insolvent, a bank has been held to be "insolvent" only when there is an insufficiency of all its property and assets to pay all its just debts. Youmans v. State, 7 Ga. App. 101, 66 S. E. 383; Parrish v. Com. 136 Ky. 77, 123 S. W. 339; State v. Clements, 82 Minn. 434, 85 N. W. 229; Gass v. State, 130 Tenn. 581, 172 S. W. 305; Fleming v. State, 62 Tex. Crim. 653, 139 S. W. 598; Brown v. State, 71 Tex. Crim. 353, 162 S. W. 339; Ellis v. State, 138 Wis. 513, 119 N. W. 1110, 20 L.R.A. (N.S.) 444, 131 Am. St. Rep. 1022. And see the reported case. See also Roby v. State, 41 Tex. Crim. 152, 51 S. W. 1114. Thus, in Parrish v. Com. supra, the court said: "It is insisted that under instruction No. 3 ('a bank is insolvent within the meaning of these instructions when its property and assets are of such character and value that it cannot meet its demands in the ordinary course of its business') the jury had the right to find a verdict of guilty if they believed that the bank could not pay all of its depositors on demand; that this fact, according to the definition of 'insolvency,' was sufficient evidence that the bank was insolvent. If this was the fair meaning of the instruction, it would not be a correct statement of the law applicable to the case, and if we believed the jury so understood it, we would order a new trial. Although the

law undoubtedly contemplates that when a depositor places money in a bank as a general deposit, he shall have the right to withdraw it upon demand, and that the refusal or inability of the bank to permit him so to do would be evidence of its failing condition, it is yet manifest that the mere fact that the bank does not have in its vaults sufficient cash to satisfy all its depositors, or any considerable number of them, on the same day, or in case a run was made on the bank, would not be proof of its insolvency within the meaning of the statute. A bank might not be able to pay its depositors on demand, and yet be perfectly solvent. It is only when all of its property and assets are not sufficient to satisfy its debts that it is insolvent. Whenever a bank fails to discharge its obligations in the ordinary course of its usual and customary business, or closes its doors, or goes into liquidation, it is evidence of its insolvency, and a prosecution may at once be inaugurated. But there can be no conviction unless the evidence conduces to show that when the deposit was received, all of its property and assets were not sufficient to meet its demands. It is a matter of common knowledge that banks well managed never have on hand an amount of money equal to their deposits. They are not expected or required to do this, or to anticipate that all their depositors will want their money at the same time. It is a legitimate feature of good banking to lend out so much of the deposits as may not be necessary to meet the demands of depositors in the ordinary course of business, and the statute permits this by providing in section 584 that: 'Each bank shall keep on hand at all times at least fifteen per cent. of its total deposits ard in cities with a population of over fifty thousand at least twenty-five per cent. of its total deposits; one-third of which reserve shall be in money, and the balance may be in funds, payable on demand, deposited in other banks.' In view of this statute allowing banks to lend out so large a per cent. of their deposit, it would be absurd to say that the failure to be able to pay all checks presented on demand would be proof of its insolvency. If this test were applied, every bank in the state would be insolvent, because no one of them could presently pay all of its depositors in full. No honest, prudent banker need feel apprehensive that he will be subjected to either indictment or prosecution because the cash on hand at any time is not sufficient to meet the claims of all depositors. And we may add that in no case that has come under our notice were criminal proceedings under statutes like ours instituted until the bank had closed its doors and gone into liquidation. When all of the property and assets of a bank-and these words include

every species of property owned by it-are not of sufficient value to pay its debts, there can be no doubt that the bank is insolvent. This is what the instruction means when fairly interpreted, and that this was the view of the law entertained by this trial judge, as well as counsel for the commonwealth and the accused, is amply demonstrated by the line of testimony offered in behalf of the commonwealth, as well as the defense on the trial of the case." In Ellis v. State, 138 Wis. 513, 119 N. W. 1110, 131 Am. St. Rep. 1022, 20 L.R.A. (N.S.) 444, it was said: "A bank is insolvent when the fair cash value of its assets, realizable within a reasonable time, in case of liquidation by the proprietors, as ordinarily prudent persons would ordinarily close up their business, is equivalent to its liabilities, exclusive of stock liability." And in Gass v. State, 130 Tenn. 581, 172 S. W. 305, the court said: "We shall now inquire when is a bank insolvent within the sense and meaning of the statute in question. There are two theories of the subject. One is that a bank is insolvent when it is unable to pay demands made upon it in the ordinary course of business when such demands fall due, a situation in which bankruptcy proceedings could be immediately instituted against it. The other theory is that the bank is insolvent when its assets are less in value than the amount of its debts, exclusive of capital stock, surplus, and undivided profits, allowing a reasonable time for the conversion of the assets into money. It is no doubt true that, when a bank is unable to pay its debts as they fall due in the ordinary course of business, it is subject to be proceeded against by a bill in equity for the appointment of a receiver for the administration of its assets. We do not believe, however, that this state or condition of the business was such as was contemplated by the statute in question. It cannot be true that a banker is guilty of a crime in receiving a deposit if at the time the assets of the bank fully equal in value the sum of its debts, even though it may require some time to realize on those assets. The gist of the matter is that a deposit is received by a banker knowing or having good reason to believe that the money will be lost to the depositor, by reason of the inability of the bank to return it; but if the assets on a fair valuation are amply sufficient to pay all depositors, including the one in question, and all other debts of the bank, exclusive of the capital stock, surplus, and undivided profits, the bank is not insolvent, nor is there any good reason to believe that it is insolvent. This meaning of insolvency is the ordinary signification of the word; that is, an insufficiency of assets to pay debts." In the reported case, which is a prosecution of the president of a bank

for fraudulent mismanagement in connection with the insolvency of the bank, it is held that a bank is insolvent if its entire property and assets are insufficient to discharge its liabilities by way of liquidation; and that, if a bank's assets are sufficient to pay its debts after liquidation, it is not insolvent though it is unable to pay its debts immediately as they become due, or to pay its depositors on demand. It is also held that the language of the section of the Civil Code providing for examinations into the affairs of a bank, and for the closing of the bank on the examiner's becoming satisfied that the bank "cannot resume business or liquidate its indebtedness to the satisfaction of all creditors, including its shareholders," does not furnish a test of insolvency for use in construing the meaning of "insolvency" in an action under the criminal statute.

In Civil Action.

In a number of jurisdictions, it has been held in various civil actions that the insolvency of a bank does not mean that condition in which a business concern is placed when it is found that on the settlement of its affairs, it will not be able to pay its debts in full, but that it means a present inability to meet its current obligations as they mature. Hayden v. New York Chemical Nat. Bank, 84 Fed. 874, 55 U. S. App. 420, 28 C. C. A. 548, affirmed 174 U. S. 610, 19 S. Ct. 787, 43 U. S. (L. ed.) 1106 (action to recover payments made in contemplation of insolvency); Case v. Louisiana Citizen's Bank, 2 Woods 23, 5 Fed. Cas. No. 2,489 (action to have transfer declared void, as act in contemplation of insolvency); Stone v. Dodge, 96 Mich. 514, 56 N. W. 75, 21 L.R.A. 280 (action by receiver of insolvent bank to recover sum due at date of suspension of bank); Dodge v. Mastin, 17 Fed. 660 (action to secure deposit made when bank was insolvent; interpreting Missouri statute); Eads v. Orcutt, 79 Mo. App. 511 (suit by depositor against officers of bank to recover deposit made when bank was known to be insolvent); Stadler v. Helena First Nat. Bank, 22 Mont. 190, 56 Pac. 111, 74 Am. St. Rep. 582 (suit to set off certain deposits of plaintiffs against note made by them to bank and transferred by it to another); Com. v. Tradesmen's Trust Co. 237 Pa. St. 316, 85 Atl. 363 (proceeding for appointment of receiver); Livingstain v. Columbian Banking, etc. Co. 81 S. C. 244, 62 S. E. 249, 22 L.R.A. (N.S.) 445 (action for subrogation and to have money paid to petitioner at time of insolvency of bank declared not impressed with a trust in favor of other crediors); Minton v. Stahlman, 96 Tenn. 98, 34 S. W. 222 (suit by depositor to hold officers of bank individually liable for

And see

loss of deposit claimed to have been made when bank was insolvent); Dewey v. St. Albans Trust Co. 56 Vt. 476, 48 Am. Rep. 803 (action to have bank declared insolvent and certain directors preferred). Harmanson v. Bain, 1 Hughes 188, 11 Fed. Cas. No. 6,072 (bill in equity to declare transfer of property void); In re Manufacturers' Nat. Bank, 5 Biss. 499, 19 Int. Rev. Rec. 20, 16 Fed. Cas. No. 9,051 (application for rule on national bank to show cause why it should not be adjudged bankrupt); Oakley v. Paterson Bank, 2 N. J. Eq. 173 (bill for injunction and appointment of receivers). Compare Earle v. Carson, 188 U. S. 42, 23 S. Ct. 254, 47 U. S. (L. ed.) 373 (action to recover amount of liability of stockholder of national bank on its suspension); Bank Com'rs v. Brest Bank, Har. (Mich.) 106 (motion for appointment of receiver). In Com. v. Tradesmen's Trust Co. 237 Pa. St. 316, 85 Atl. 363, it was said: "It is not insolvency in its popular sense that the law regulating banks and trust companies and kindred corporations deals with, but insolvency in its legal sense, which exists whenever such an institution as this, from any cause, is unable to pay its debts in the ordinary or usual course of its business." In Eads v. Orcutt, 79 Mo. App. 511, the appellate court in approving the instructions given by the trial judge, said: "They, taken together, point out in unambiguous language, what constitutes insolvency, confining such condition to an inability to meet the ordinary demands against the bank in the usual and ordinary course of business. They declared that an ability to pay in the future, or an excess of assets over liabilities, without a present ability to pay debts as they become due in the usual course of business, was not solvency." In Livingstain v. Columbian Banking, etc. Co. 81 S. C. 244, 62 S. E. 249, 22 L.R.A. (N.S.) 445, it was held that "a bank is insolvent when from the uncertainty of being able to realize on its assets, in a reasonable time, a sufficient amount to meet its liabilities, it becomes necessary for the control of its affairs to pass out of its hands." In defining "insolvency" under the currency act, the court continued: "I know of no reason why a different meaning should be given to the word 'insolvency' as applied to banks in the currency act, from the meaning given the same word in the bankrupt act as applied to traders 'Insolvency, as used in the bankrupt act of 1867 [14 Stat. 534], when applied to traders, does not mean an absolute inability of the debtor to pay his debts at some future time, upon a settlement and winding up of his affairs, but a present inability to pay in the ordinary course of his business; or in

other words, that a trader is insolvent when he cannot pay his debts in the ordinary course of his business, as men in trade usually do, and such must be the conclusion even though his inability be not so great as to compel him to stop business.' Wager v. Hall, 16 Wall. 599, [21 U. S. (L. e.) 504]. This definition of insolvency, in my judgment, is the meaning of the word in the currency

act.

However, in other jurisdictions, it is held that a bank is insolvent when all of its property is insufficient to satisfy its debts: Exchange, etc. Co. v. Mudge, 6 Rob. (La.) 387 (action for rent); Kennedy v. New Orleans Sav. Inst. 36 La. Ann. 1 (action to have claims obtained by plaintiff with knowledge of defendant's insolvency and for purpose of securing preference, set off against indebtedness of former to latter). See also In re French Bank Case, 53 Cal. 495 (motion to vacate order appointing receiver); Clarke v. Ingram, 107 Ga. 565, 33 S. E. 802 (action to have conveyance made by insolvent bank declared void as being in fraud of creditors); State v. Mechanics,' etc. Bank, 35 La. Ann. 562 (action for forfeiture of charter and liquidation of affairs of bank). In Exchange, etc. Co. v. Mudge, 6 Rob. (La.) 387, in holding that a bank which had voluntarily gone or had been forced into liquidation, was not as a matter of course, insolvent, the court said: "It is only when the whole amount of the capital stock of a bank, together with its assets, is insufficient to meet its liabilities, that a bank can be said to be insolvent." And in Kennedy v. New Orleans Sav. Inst. 36 La. Ann. 1, the court said: "By being in insolvent circumstances is meant that the whole property and credits are not equal in amount, at a fair appraisement, to the debts due by the party... Solvency is the ability to pay one's debts. He who cannot pay all that he owes, is not solvent." In New York, the later cases, while not distinguishing between the two meanings or applications of the word, hold that a bank is not insolvent when its assets are sufficient to satisfy all claims against it, even though it may not be able to meet the every-day demands made on it. Livingston v. New York Bank, 26 Barb. (N. Y.) 304, 5 Abb. Pr. 338; Higgins v. Worthington, 12 App. Div. 361, 42 N. Y. S. 737; People v. Oriental Bank, 124 App. Div. 741, 109 N. Y. S. 509. But in the earlier cases, the term "insolvent," as applied to banks, was used in its restricted sense. In re Empire City Bank, 10 How. Pr. 498; Ferry v. Central New York Bank, 15 How. Pr. 445; Market Nat. Bank, v. Pacific Nat. Bank, 30 Hun 50 (construing U. S statute).

DUTTON

STATE.

Maryland Court of Appeals-June 24, 1914.

Correction of Record.

On application to the lower court to have the record in that court corrected so as to properly state what occurred, the court below if satisfied from its own knowledge, or from the evidence adduced, that the clerk's docket entries were erroneous or incomplete, had the power and duty to have them corrected. Same.

The action of the lower court, on an application for correction of the record and in reference to the changes requested, is final and not reviewable on appeal. Scope of Review

Trial.

Denial of New

The action of the lower court in overruling a motion for a new trial is not reviewable by the Court of Appeals.

Denial of Motion to Strike out Judgment.

The action of the lower court on a motion to strike out the judgment and sentence is reviewable by the Court of Appeals.

Criminal Law

Distinction between Felony and Misdemeanor.

Under Code Pub. Gen. Laws 1904, art. 27, §17, providing the punishment for an assault with intent to rape, such offense is a misdemeanor, though punishable, in the discretion of the court, with death or imprisonment in the penitentiary for 20 years, and not a "felony," since the fact that a crime is punishable in the penitentiary or is infamous does not make it a felony, and is not even an "infamous crime," which depends on the character of the crime, and not upon the nature of the punishment; and hence it is not necessary that accused shall be arraigned.

[See 8 R. C. L. tit. Criminal Law, p. 55.] Interrogation of Accused before Sentence.

It is not reversible error, even in a capital case, not to ask the prisoner if he has any reason why sentence should not be passed, unless it appears that he was or may have been injured by the omission, but the practice of inquiring any reason why sentence should not be passed is recommended in all cases in which either the death penalty or confinement in the penitentiary can be imposed.

[See note at end of this case.] Same.

Even if it is indispensable in capital cases to ask the prisoner if he has anything to say before sentence, error in omitting the inquiry affects only the sentence and not the verdict;

[See note at end of this case.]

Same.

When the prisoner is asked if he has anything to say before sentence is passed the proper practice is to note such inquiry in the record.

[See note at end of this case.] Cruel and Unusual Punishment.

Under Declaration of Rights, art. 16, declaring that no law to inflict cruel and unusual penalties shall be made, and article 25, declaring that cruel or unusual punishments shall not be inflicted by the courts of law, a judgment and sentence of capital punishment for the crime of assault with intent to rape, imposed under the discretion given the court in respect to such crime by Code Pub. Gen. Laws 1904, art. 27, § 17, is not unconstitutional.

[See 8 R. C. L. tit. Criminal Law, p. 262.] Same.

Const. U. S. amend. 8, declaring that cruel and unusual punishments shall not be inflicted, is not a restraint upon and does not apply to the legislature of a state, but only to the national legislature.

Trial

- Exclusion of Public.

In determining whether any part of the public shall be excluded from the trial of a criminal case the trial court is allowed some discretion, and no exclusion should be permitted which might injuriously and improperly affect the prisoner, and under no circumstances should a trial be so conducted as to have the appearance of a star chamber proceeding; and hence the trial of a charge of assault with intent to rape, held by the court in the petit jury room instead of the courtroom, and with the consent of defendant's attorney, where it does not appear that any one whom defendant or his attorney desired to be present was excluded, is not a deprivation of defendant's rights.

[See 20 Ann. Cas. 632; 28 Am. St. Rep. 308.]

Private Examination of Witness.

Under Declaration of Rights, art. 21, providing that in all criminal prosecutions every one has the right to be confronted with the witnesses against him, the examination of the prosecutrix in a trial for assault with intent to rape by the court out of the presence of the defendant, except as he was called to the door for identification, is a deprivation of right and reversible error.

Appeal from Circuit Court, Dorchester county: STANFORD and JONES, Judges.

Criminal action. James Dutton convicted of assault with intent to rape and appeals. The facts are stated in the opinion. RE

VERSED.

Thomas W. Simmons for appellant.

W. Calvin Trice and Edgar Allan Poe for appellee.

[375] BOYD, C. J.-The appellant was convicted of an assault with intent to rape, and was by virtue of section 17 of Article 27, Code of Public General Laws, as amended by Chapter 366 of Acts of 1908, sentenced to be hung. The record originally transmitted to this Court was defective, but on application of the appellant a writ of diminution was ordered. The appellant then applied to the lower Court to have the record in that Court corrected, so as to have what occurred properly stated. In Greff v. Fickey, 30 Md. 75, after a writ of diminution was issued by this Court, for the purpose of having [376] some alleged errors in the record corrected, a motion was made to have the docket entries in the lower Court amended and completed, but that Court overruled the motion because it was of opinion that the term having passed, and the Court of Appeals having ordered that the docket entries be returned as they actually stood upon the docket, it would be improper to grant the motion. This Court, through Bartol, C. J., said: "We think the learned judge was in error as to the purport and design of the writ, and his powers and duty in the premises. If satisfied either from his own knowledge of what had actually occurred in the progress of the cause, or from evidence adduced, that the docket entries as made by the clerk were erroneous or incomplete, it was within his power and his plain duty to have them corrected, so that a full, true and perfect transcript of the whole proceedings as they actually occurred in the progress of the cause might be set up, in obedience to the writ." That course was also approved in Hays v. Philadelphia, etc. R. Co. 99 Md. 413, 58 Atl. 439, and Koch v. Wimbrow, 111 Md. 21, 73 Atl. 896,

The lower Court accordingly very promptly and properly granted the motion of the appellant in this case, and has made certain corrections which we will insert in this opinion, so that it may be seen how the record now stands. the action of that Court in reference to the changes requested being final and not subject to review on appeal. Greff v. Fickey, supra. By an order in writing signed by the two judges who sat below, the clerk was directed to and did make the changes, additions and corrections in the docket entries and record, so as to now read as follows:

"Plea and traverse. Whereupon the said James Dutton, traverser, cometh to the bar of

the Court here in his proper person, and forthwith being demanded concerning the premises in said indictment above specified and charged upon him, how he will acquit himself thereof, he waived arraignment and he said, 'Not Guilty,' and Traverse before the Court,' and the said V. Calvin Trice, Esquire, State's Attorney [377] of Dorchester, aforesaid, who for the said State of Maryland in his behalf prosecuteth, doth the like.

"That the consent of the attorneys for the State and for the traverser having been first given, thereupon the trial in this case was adjourned to and held in the petit jury room, immediately adjoining the court room proper, including the taking of all testimony, and the same being taken in the presence of the Court, the Clerk with his docket and other Court officers, the said attorneys for the State and traverser, and all witnesses, but without the presence of said traverser during any part of the testimony of the chief prosecuting witness, Margaret Gillis, who testified while said traverser was in said adjoining court room, with the door of communication closed, and in custody of the Sheriff, except for the interval when said traverser was brought to said communicating door then opened, and identified by said witness, the said door being immediately thereafter closed until said witness left the stand and the traverser brought into said petit jury room to testify in his own behalf, where he then remained until the conclusion of said trial.

"The Court, having heard evidence, thereupon directed the Clerk of the Court to enter in the proceedings in said case, 'The Court finds the party guilty.'

"Sentence. Whereupon all and singular the premises being seen, and by the Court fully understood, it is thereupon considered by the Court that James Dutton, prisoner at the bar, be taken to the jail of Dorchester County from whence he came, and from thence to the place of execution," etc.

A motion for a new trial was made "short" the day the appellant was sentenced (November 14th, 1913), and on November 18th a formal motion in writing was filed. On December 23rd that motion was overruled, and on January 24th, 1914, which was during the same term of Court, a motion to strike out the judgment and sentence was made, which was overruled, and this appeal was taken to this Court. [378] That the action of the Court in overruling the motion for a new trial is not subject to review by us is too well settled to require or justify the citation of authorities, but its action on the motion to strike out the judgment and sentence is reviewable by us. The ruling on such a motion was reviewed by us in Hommer v. State, 85 Md. 562, 37 Atl. 26, and other cases which might be cited, but we are confined to what