
    CUPP v. STATE.
    (No. 10045.)
    (Court of Criminal Appeals of Texas.
    May 19, 1926.)
    Banks and banking &wkey;>85(I) — In prosecution of owner of private unincorporated bank for receiving deposits when bank was insolvent, failure of indictment to allege insolvency of accused held fatal (Pen. Code 1925, art. 557).
    In prosecution of owner and manager of private unincorporated bank for violation of Pen. Code 1925, art. 557, in receiving deposits knowing bank to be insolvent, failure of indictment to allege that accused was insolvent held fatal.
    other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.
    W. B. Cupp was convicted of receiving and assenting to the reception of deposits in a private bank, knowing the same to be insolvent, and he appeals.
    Reversed, and prosecution dismissed.
    Frazier & Averitte, of Hillsboro, for appellant.
    Sam E. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, ’Asst. State’s Atty., of tíroesbeek, fór tbe State.
   Opinion.

BAKER, J.

Tbe appellant was convicted in tbe’ Criminal District Court No. 2 of Dallas county, Tex., .for tbe offense of receiving and assenting to tbe reception of deposits in a private bank, knowing same to be insolvent or in failing circumstances, and bis punishment assessed at two years in tbe penitentiary.

The indictment was based upon article 557, 1925 Penal Code (article 532 of the old Code), which indictment, omitting its formal parts, is as follows:

“* * * That one W. B. Cupp, on the 6th day of May, in the year of our Lord one thousand, nine hundred and twenty-five, * * * in the county and state aforesaid, was the owner and manager of the Farmers’ Bank, Duncan-ville, Tex., a private bank and banking institution, unincorporated, and whose owner and manager was W. B. Cupp, and doing business in said county and state, and did then and there unlawfully receive and assent to the reception of a deposit of money, to wit, the sum of $21 current money of the United States of America of the value of $21, into such the Farmers’ Bank, as aforesaid, the same being a private bank and banking institution, after he, the said W. B. Cupp, owner and manager, as aforesaid, of said the Farmers’ Bank, a private bank and banking institution as aforesaid, had knowledge of the fact that said the Farmers’ Bank was then and there insolvent and in failing circumstances,” etc.

Tbe appellant moved to quasb tbe indictment because, among other reasons, it was not alleged in said indictment that tbe appellant, W. B. Cupp, alleged owner and manager, was insolvent at tbe time tbe alleged deposit was received, wbicb motion was by tbe court overruled and an exception reserved thereto. It will be observed from tbe above that the appellant’s contention was that tbe indictment was insufficient in that it alleged that tbe bank was insolvent instead of alleging that tbe appellant, W. B. Cupp, tbe owner, was insolvent. In support of tbe appellant’s contention we are cited to Roby v. State, 41 Tex. Cr. R. 152, 51 S. W. 1114; Flemming v. State, 62 Tex. Cr. R. 653, 139 S. W. 598; Brown v. State, 68 Tex. Cr. R. 269, 151 S. W. 561; Brown V. State, 71 Tex. Cr. R. 353, 162 S. W. 339.

In Brown v. State, supra, 68 Tex. Cr. R. 269, 151 S. W. 561, opinion rendered by Presiding Judge Davidson, in discussing tbe sufficiency of an indictment relative to an unincorporated bank, it is stated at page 273 (151 S. W. 564):

“The indictment should have alleged that appellant was either the owner, agent, or manager, and-in addition it should have alleged the owners of the bank; and further that these owners were insolvent or in failing circumstances at the time the money was received on deposit, and that the accused knew those facts. In a private bank all parties are partners and the bank could not be insolvent under the terms of this law unless the owners were insolvent. A different rule obtains in chartered institutions. * * * As was said in the Roby Case, supra: ‘If the individuals were solvent, the Tyler Banking Company was solvent; if they were insolvent, the Tyler Banking Company was insolvent,’ ” etc.

In tbe case of Brown v. State, 71 Tex. Cr. R. 353, 162 S. W. 339, tbe indictment alleged that the bank and tbe appellant were insolvent, and tbe court held that it was necessary, and a material issue in tbe case, for tbe state to show that the appellant and said bank were insolvent at tbe time of tbe reception of tbe deposits. We think, unquestionably, that tbe indictment is defective in failing to allege that tbe owner of tbe bank was insolvent, • and that it was necessary for tbe state to allege bis insolvency in this instance and to follow said allegation by proper proof to that effect.

After a careful examination of all tbe, authorities bearing on this isstae, we have reached tbe conclusion that tbe court erred in not sustaining tbe motion to quasb tbe indictment.

There are other questions raised in tbe record, but, from tbe disposition we have made of this case, it is unnecessary for us to discuss them at this time.

For tbe error above mentioned, we are of tbe opinion that tbe judgment of tbe trial court should be reversed and this prosecution dismissed, and it is accordingly so ordered.

PER CURIAM.

Tbe foregoing opinion by tbe Commission of Appeals has been examined by .the judges of tbe Court of Criminal Appeáls and approved by tbe court.  