
    No. 26,050.
    The State of Kansas, Appellee, v. J. N. Richardson, Appellant.
    
    OPINION DENYING A REHEARING.
    Appeal from Sedgwick district court, division No. 3; Jesse D. Waul, judge.
    Opinion denying a rehearing filed November 6, 1926.
    (For original opinion of affirmance see 120 Kan. 772.)
    
      George McGill, John W. Adams, William J. Wertz, James A. Conly, Victor J. Rogers, George L. Adams, all of Wichita, and Silas Porter, of Topeka, for the appellant.
    
      Charles B. Griffith, attorney-general, W. A. Blake, county attorney, S. A. Buckland and S. B. Amidon, both of Wichita, for the appellee.
   The opinion of the court was delivered by

Burch, J.:

J. N. Richardson, president, and O. A. Powell, vice president, of the American State Bank of Wichita, were convicted in separate trials of violation of the section of the banking act making it a felony for a bank to receive deposits while it is insolvent. Both defendants appealed. Because the separate appeals presented" numerous questions common to the two cases, they were disposed of in a single opinion (State v. Powell, 120 Kan. 772, 245 Pac. 128). In a petition for rehearing presented by Richardson, it is said that in reaching the conclusion insolvency of the bank was fully proved in Richardson’s case, the court apparently coupled the records of the Powell and Richardson cases; referred to matters not proved in Richardson’s case; and determined the merits of Richardson’s appeal from facts with which he had not been confronted at his trial; and in view of what he is pleased to call “the wide scope of matters referred to in the opinion in this case,” he takes the liberty of suggesting matters foreign to both records, which he now desires the court to take into consideration.

In determining whether the bank was proved to be insolvent so conclusively that the expert testimony on the subject, wrongfully admitted, prejudicially affected Richardson’s substantial rights, the record in Powell’s case was not consulted or considered, and the opinion of the court does not present the slightest appearance of a coupling of the two records, in reaching a conclusion respecting solvency of the bank.

As indicated, many questions in the two cases were identical, and were so treated in the opinion (pp. 774 to 786). The proper method of proving insolvency, including use of expert testimony, was a subject common to the two cases, and was so treated (pp. 786 to 788). Effect of the error in admitting the expert testimony on Richardson’s case was then separately treated (pp. 789 to 791, middle of page). Other assignments of error peculiar to Richardson’s case were then disposed of (pp. 791 to 794, middle of page). Powell’s case was then disposed of on grounds not pertinent to Richardson’s case. In treating the subject of the bank’s solvency in its relation to Richardson’s case, the record in Richardson’s case was rigidly adhered to. Had it been permissible to resort to the record in Powell’s case, it would not have been necessary to discuss the subject separately in Richardson’s case.

Since there is no foundation for Richardson’s assertion that the court went outside the record in deciding his case, the assertion may not be used as a pretext for injecting into the petition for rehearing matters not contained in the record in his case.

Matters properly presented in the petition for rehearing have been duly considered. They are sufficiently covered in the original opinion.

The petition for rehearing is denied.  