In re COSMOPOLITAN TRUST CO. 1. Banks and banking 317-Commissioner Under St. 1910, c. 399, § 16, G. L. c. 167, $36, giving the Supreme Judicial Court jurisdiction to enforce in equity the provisions of the statute relative to the liquidation of banks and trust companies, the Commissioner may not petition the court for instructions in order to obtain the court's approval of action which he is required by the statute to take on his own responsibility. 2. Banks and banking 317-Commissioner of Banks entitled to petition for instructions as to transferring funds from commercial to savings department of trust company. Under St. 1910, c. 399, § 16 (G. L. c. 167, § 36), where a trust company, in process of liquidation by the Commissioner of Banks, had pledged securities constituting assets of its savings department for loans for the benefit of its commercial department, and the Commissioner had permitted such securities to be sold by the pledgees and had transferred the value thereof from the commercial department to the savings department, he was authorized to petition the court for instructions as to his authority so to do. of its savings department as collateral secu- Where a trust company, in violation of G. L. c. 172, § 62, pledged securities constituting assets of its savings department for loans for the benefit of its commercial department, and certain of the securities remained in the pledgees' hands unsold when the Commissioner of Banks took charge of the company's business, it was his duty to pay the debts and replace the securities in the savings department, and, though he deemed it better to suffer them to be sold, instead of redeeming them, his duty was fixed as of the date he took possession, and, having permitted them to be sold, it was his duty to restore the equivalent in money value from the assets of the commercial department. Report from Supreme Judicial Court, 3. Banks and banking 317-Trust company, being liquidated, not necessary party to Commissioner's petition for instructions. Petition by Joseph C. Allen, Commissioner Under the statute making the stockholders of Banks, in possession of the property and of trust companies liable to the full amount of business of the Cosmopolitan Trust Comtheir stock for all contracts, debts, and en- pany, for authority to transfer certain funds gagements of the corporation, but, as between from the commercial department to the savdepositors making such liability security for the ings department of such Company. Reportpayment of savings deposits, the trust com- ed by a single justice after the rendition of a pany is not a necessary party to a petition by decree granting the petition and the allowthe Commissioner of Banks liquidating the trust company's business for instructions as to ance of the filing nunc pro tunc of the aphis authority to transfer funds from the com- pearances and answers of the Cosmopolitan pany's commercial department to its savings | Trust Company and the Old Corner Book department, as the liability of the stockhold- Store, Incorporated, on the questions as to ers will not be affected thereby. the correctness or the decree and the right 4. Banks and banking of the Trust Company and the Old Corner Book Store, Incorporated, to appear and be heard. Affirmed. 317-Commissioner's application for notice to trust company held to give it right to be heard on petition for instructions. Where the Commissioner of Banks liquidating a trust company, in petitioning for instructions as to his right to transfer funds from the commercial department to the savings department, asked for an order of notice to the trust company to show cause why the relief prayed for should not be granted, the trust company was thereby given a right to appear and be heard. 5. Banks and banking 317-Trust company's depositors properly permitted to intervene in Commissioner's proceeding for instructions when interests antagonistic. Where a trust company in process of liquidation had used securities constituting assets The Commissioner's substituted petition alleged that it had been the practice of the trust company to transfer mortgages, notes, or other securities from its savings department to its commercial department and sell or pledge them for the purpose of procuring money for use in its regular business outside of its savings department; that the securi ties, if not disposed of by sale, were regularly returned to the savings department, and, if disposed of by sale, their equivalent in cash was so returned; that on the date on which the Commissioner of Banks took possession of the company's property and busi For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (133 N.E.) ness securities of a specified value were still liquidation of the Cosmopolitan Trust Compledged on such loans; that the commis-pany paid some of these notes out of general sioner was unable, without incurring a funds in his hands and replaced the collatgreatly disproportionate expense and loss, to eral in the savings department; but $607,005 pay all of such notes and was obliged to per- of these collateral securities were sold by mit the holders, under the rights given them the holders and applied to the payment of by their collateral notes, to sell certain of these notes. All the notes now have been the securities; that by means of such sales, paid. together with payments made by the Com- This petition is brought to authorize the missioner, the loans were paid and some of petitioner to transfer from the commercial to the securities returned to the Commissioner the savings department this amount of and by him replaced in the savings depart- $607,005, by which the assets of the savings ment; that the difference between the prin- department have been depleted for the benecipal amount of the securities originally re- fit of the commercial department. moved from the savings department and the principal amount of those returned, which was also the amount received by the pledg- to the performance of his duties. The Comees for the sale of such securities, was $607,005; and that the Commissioner had drawn his check on the general funds of the trust company in that sum and deposited it with the funds of the savings department. It asked the instructions of the court as to whether such return to the savings department was in accordance with law. The answers of the trust company and of the Old Corner Book Store, Incorporated, a depositor in the commercial department, denied the authority of the Commissioner to make such transfer. [1, 2] This proceeding is in the nature of a petition by a trustee for instructions as missioner of Banks is in effect a trustee in his administration of a bank of which he has taken possession under the statute. Jurisdiction is conferred by St. 1910, c. 399, § 16, now G. L. c. 167, § 36, upon the Supreme Judicial Court to enforce in equity the provisions of the liquidation statute. This provision should be so construed as to make the law workable, as a practical measure, to ascertain, protect and establish speedily the rights, obligations and duties arising out of the liquidation statute, to the end that the creditors and beneficiaries of the bank may be paid with as brief delay as is practicable. The failure of a bank is likely to tie up the savings and hamper the business of many people. This section of the statute does not authorize the Commissioner to seek the approval by the court of action which he is required by this statute to take on his own responsibility. The petition is properly brought. [3] The Cosmopolitan Trust Company is not a necessary party to this proceeding. Whether the prayer of the petition be Frank Owen White and Barker, White granted or denied can make no difference to Wood & Williams, all of Boston, for Cosmo- it. If the liability of its stockholders could politan Trust Co. Henry O. Cushman and Daniel L. Smith, both of Boston, for Joseph C. Allen, Commissioner of Banks, in possession of Cosmopolitan. Trust Co. Frank Owen White, Harold Williams, Jr., and William T. Snow, all of Boston (Barker, White, Wood & Williams, of Boston, of counsel), for Old Corner Book Store, a general creditor, in behalf of itself and others similarly situated. be affected in any way by the decision of this petition, it ought to be heard. But they cannot be affected by the decision. The RUGG, C. J. The Cosmopolitan Trust stockholders are liable to the full amount of Company was incorporated in 1912 under their stock at its par value "for all conR. L. c. 116. It conducted in Boston a gen- tracts, debts and engagements of the corpoeral banking business and maintained a ration." The liability of the stockholders is savings department. On September 25, held as security for the payment of deposits 1920, the petitioner took possession of its in the savings department only as between property and business under St. 1910, c. 399, such deposits and the claims of general and acts in amendment thereof and in ad- creditors. That liability subsists, so far as dition thereto. See now G. L. c. 167, § 22. concerns the stockholders, equally for "all Between August 23, 1920, and September contracts, debts and engagements," regard25, 1920, the Cosmopolitan Trust Company, less of priority of any one class of such conthrough its officers, pledged mortgages, and tracts, debts and engagements over any othother securities, assets of the savings de er class. There is nothing disclosed on this partment, to the amount of $1,243,240.90, as record which shows that the Cosmopolitan collateral security upon its notes given for Trust Company has any right, respecting loans, the proceeds of which were used the issues here raised, adverse to the posiwholly in its commercial department. All tion taken by the Commissioner of Banks. these notes were outstanding and unpaid on September 25, 1920, when the petitioner took possession. The petitioner in the course of The Cosmopolitan Trust Company has not presented any arguments to show that it has such adverse interest. When there is no such adverse interest the Cosmopolitan possession of its property and business. Not Trust Company by accepting its charter one of them had been sold. At that time agreed to be bound by St. 1910, c. 399, § 5 (G. L. c. 167, § 25), which confers upon the Commissioner of Banks power in the name of the bank to "prosecute and defend all suits and other legal proceedings." [4] The petitioner, however, made the Cosmopolitan Trust Company a party to this proceeding by asking for an order of notice to it to show cause why the relief prayed for should not be granted. That is sufficient to give the Cosmopolitan Trust Company a right to appear and be heard. this specific trust property existed, and was completely identified. It became the instant duty of the petitioner, when he took possession, to restore to the savings department the securities abstracted therefrom and put to the unlawful use. It was his obligation to use the resources of the commercial department for the purpose of repairing the breach of trust committed by the trust company against the depositors in the savings department. His duty was to pay the notes, thus to release the pledged securities and to [5] The Old Corner Book Store, Incorpo- replace them in position to protect the derated, is a depositor in the commercial depositors in the savings department. The partment, but not in the savings depart- fact that, in the process of liquidation, the ment, of the Cosmopolitan Trust Company, petitioner deemed it wise not to redeem all and asks leave to appear and answer in be- these securities, but to suffer some of them half of itself and other commercial deposi- to be sold by the pledges for payment of the tors similarly situated. The Bank Commis- notes, does not affect the trust obligation. sioner by this petition is asking the in- The duty of the petitioner in respect of these struction of the court as to his duty in a matters became fixed on the date when he matter immediately affecting the financial took possession of the property of the trust interests of depositors in the commercial de- company. Events thereafter occurring do partment. His attitude in this matter is not impair in any degree the obligation of directly antagonistic to their interests. the petitioner in respect to the facts here Therefore he cannot represent them and they disclosed. These are mere matters of adare proper parties to the proceeding. It is a ministration. The doctrine of the right of a familiar practice, where parties are numer- cestui que trust to trace and take the trust ous, to admit one or several as representa- property wherever it can be found, with its tives of the class. Reynolds v. Davis, 198 limitations as to identification, has nothing Mass. 294, 301, 84 N. E. 457, 17 L. R. A. (N. to do with the facts disclosed in the case at S.) 162; Wallace v. Adams, 204 U. S. 415, bar. Decisions like Lowe v. Jones, 192 Mass. 425, 27 Sup. Ct. 363, 51 L. Ed. 547; United 94, 78 N. E. 402, 6 L. R. A. (N. S.) 487, 116 States v. Old Settlers, 148 U. S. 427, 464, 13 Am. St. Rep. 225, 7 Ann. Cas. 551, Little v. Sup. Ct. 650, 37 L. Ed. 509. Chadwick, 151 Mass. 109, 23 N. E. 1005, 7 L. R. A. 570, Foote v. Cotting, 195 Mass. 55, 80 N. E. 600, 15 L. R. A. (N. S.) 693, and Hewitt v. Hayes, 205 Mass. 356, 91 N. E. 332, 137 Am. St. Rep. 448, are inapplicable. We are dealing here with the trustee himself, for the petitioner represents the trust company. Having failed to pay the debt and thus to release the trust securities, identified and segregated at the time of his taking possession of the property of the trust company, for the benefit of the depositors of the savings department, it became the duty of the petitioner to restore the equivalent in money value. The duty of the petitioner rests upon the provisions of the Banking Law. [6] The securities of the savings department, which were pledged by the trust company as security for a loan used by its commercial department, were trust property. Greenfield Savings Bank v. Abercrombie, 211 Mass. 252, 97 N. E. 897, 39 L. R. A. (N. S.) 173, Ann. Cas. 1913B, 420. Under general| principles of law governing the administration of trusts, as well as under the express terms of St. 1908, c. 520, § 3, now G. L. c. 172, § 62, it was a gross breach of duty for the Cosmopolitan Trust Company to pledge these trust securities for the benefit of the commercial department. The legal title to all these securities was in the Cosmopolitan Trust Company when the petitioner took Decree affirmed. (232 N. Y. 264) PEOPLE v. SLOVER. (Court of Appeals of New York. 1921.) (133 N.E.) Dec. 16, 4. Homicide 18(1)-One killing while engaged in stealing an overcoat guilty of murder in first degree. One who went armed with a revolver into a store to steal an overcoat, and while engaged in the commission of that crime shot and killed another, was guilty of murder in the first degree. 2. Criminal law 713-Freedom of advocacy should not exceed bounds of decency. While freedom of advocacy must not be held too strictly in check, it must not exceed the bounds of ordinary decency and de 832, as the discretion which courts possess to permit questions as to collateral acts should be exercised with caution. 8. Witnesses 350-Question asked defendant objectionable as assertion, rather than interrogation. In a homicide case, question asked on crossexamination of defendant, "How about a brooch that you stole up there and gave to Mrs. Gass?" a collateral matter, was objectionable as being in the form of assertion, rather than interrogation. 9. Criminal law 317-No adverse inferences from failure to call convicted accomplice. The ordinary rule as to adverse inferences from failure of defendant to call available witnesses supposed to be favorable does not apply to an accomplice in a homicide case, who has been conclusively impeached by the record of his own conviction. 10. Criminal law 1171 (3)-Statement of district attorney not prejudicial. In prosecution for murder by one, accompanied by others, who went armed with a revolver to steal an overcoat, the accused doing the actual shooting, a statement of the district attorney, on question of intent with which defendant and accomplices started out on the night of the robbery, that a certain accomplice was a material witness for the defendant, and that the jury had the right to draw the inference that such accomplice's evidence would be adverse to defendant, because he was not called, was not reversible error; it being of little consequence what the intent of the accomplice was. The application of the rule of Code Cr. Proc. § 542, requiring an appellate court to disregard errors which do not affect the substantial rights of the accused, to cases where it is inconceivable that on a clear record the verdict of the jury would have been otherwise, is no precedent for its application to cases where the evidence presents a close or doubtful question of guilt, and where defects or errors may have turned the scale in the minds. Criminal law 714-Improper for district of the jury to the disadvantage of accused. attorney to inform jury that defendant desired to plead guilty of murder in second degree. 5. Homicide 165-Improper to prove decedent father of seven children. In a homicide case, court erred in permitting district attorney to introduce evidence that deceased was the father of seven children; the youngest being a little girl of 10. 6. Homicide 338 (3)-Admission of evidence held harmless. In a prosecution for murder in the first degree, it was improper for the district attorney to tell the jury that he was not allowed to take from the defendant a plea of guilty of murder in the second degree, being an illegitimate suggestion that the defendant was willing to plead guilty of murder in the second. degree. 12. Criminal law 1060-Mere exception to argument of district attorney calls for no ruling of court. An exception to the remark of a district attorney calls for no ruling of the court, and no ruling from the court was asked, and none presents no question of law for review, where given. part of the district attorney would not have changed the result, in view of Code Cr. Proc. § 542, relating to technical error. Appeal from Supreme Court, Trial Term, Erie County. Floyd E. Slover, alias Frank Barnes, was convicted of murder in the first degree, and appeals. Affirmed. W. J. Evans and Samuel J. Dickey, both of Buffalo, and George B. Russell, of Canastota, for appellant. Guy B. Moore, Dist. Atty., and Walter F. Hofheins, both of Buffalo, for respondent. ceptions which do not affect the substantial rights of the parties." Code Crim. Proc. § 542. [4] The application of the rule requiring us to disregard errors which do not affect the substantial rights of the defendant to cases where it is inconceivable that on a clear record the verdict of the jury would have been otherwise is no precedent for its application to cases where the evidence presents a close or doubtful question of guilt and where defects or errors may have turned the scale in the minds of the jury to the disadvantage of accused. We have had before us of late a series of cases where we felt that the district attorney, in examining and cross-examining witnesses and in addressing the jury, went be PER CURIAM. The record on this appeal is largely the same as in People v. Mulford, 232 N. Y. 530, 134 N. E. 558, where a conviction of murder in the first degree was af-yond reasonable bounds and sought to bring firmed. Mulford was convicted as an aider and abettor of this defendant, who is charged with the actual shooting that unquestionably caused death. [1-3] The facts show beyond reasonable doubt that defendant was guilty of murder in the first degree. From his own statement it appears that he went, armed with a revolver and accompanied by Mulford and Webber, his alleged accomplices, into the store of one Yellen, on Seneca street, in Buffalo, to steal an overcoat, and while engaged in the commission of that crime he shot and killed Yellen. He fired two shots into Yellen's body, and a third shot which struck Yellen's finger. His theory of defense on the trial was that Yellen, prematurely frightened by the sight of a revolver in defendant's hands when he was trying on the overcoat, sprung on him, and that the shooting was accidental. We would affirm without opinion, if it were not for the contention of the defendant that the district attorney deprived him of a fair trial by making improper appeals to prejudice in his summing up, and by presenting immaterial evidence to create a feeling against him. While freedom of advocacy must not be held too strictly in check, it must not exceed the bounds of ordinary decency and decorum (People v. Fielding, 158 N. Y. 542, 547, 53 N. E. 497, 46 L. R. A. 641, 70 Am. St. Rep. 495), and it is the duty of this court in death cases to uphold the rights of the accused even in the absence of an exception. to the attention of the jury matters which they had no right to consider in arriving at their verdict. We have assumed in each case on its particular facts that the jury were not affected by such matters, but by affirming the judgment of conviction we have not approved the conduct of the district attorney. We have dealt with it as the result of "well-intentioned though misguided zeal," which probably was unheeded by the jury and had no influence on their final action, while in the case of a vigorous dispute over a defendant's mental capacity we have not hesitated to order a new trial for such excesses on the part of the prosecutor. People v. Esposito, 224 N. Y. 370, 121 N. E. 344. See also People v. Mull, 167 N. Y. 247, 60 N. E. 629; People v. Wolf, 183 N. Y. 464, 472, 76 N. E. 592, Even in cases of clearest guilt, in death cases emphatically, it is the duty of the district attorney to refrain from overzealous advocacy. Unseemly and unsafe appeals to the prejudices of the jurors were made by the district attorney in this case, and if it were not for the convincing probability that the result was not affected, we would enforce the rule against improper examination of witnesses and abusive arguments resorted to only for the purpose of producing a conviction at all hazards. The following instances seem to call for our notice and disapproval as being, when taken as a whole, neither mere inadvertent slips (People v. Becker, 210 N. Y. 274, 292, 104 N. E. 396), nor errors fully and fairly corrected by the "When the judgment is of death, the Court of instructions of the court. Appeals may order a new trial, if it be satis-231 N. Y. 111, 120, 131 N. E. 752. People v. Dixon, fied that justice requires a new trial, whether any exception shall have been taken or not in the court below." Code Crim. Proc. § 528. * But "the court must give judgment without regard to technical errors or defects or to ex [5, 6] 1. The district attorney, as a part of his principal case called a witness to testify that deceased was the father of seven children, the youngest being a little girl of 10. This proof was no proper part of the people's |