Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1829-06-05

4 SUCWt COHt OF the CHNtU CIutCSJOT w ash
lngtOn County, ID. G.
| WEDNESDAY, MAY 81, 1899.
Mr.. Key then took the floor, and suggested that
the course taken by the Court in restraining the
Counsel on the other side, when wandering into
matter excursory and irrelevant, was judicous, and
would have the effect OF restraining him from ira
yelling out of the immediate case. He dsciained
any extraordinary confidence in his own opinions
a confidence entertained and expressed by the
Counsel on the other side, but which could avail
little against the authority TO be found in the dec-
sons OF Courts of Justice. The first point he should
consider is-if this be indictable at common
law, and secondly if this matter is so made out as
to bring il within the cognizance OF that law.
| He proceeded to take the first view which he
had laid down. He was DESTROYS to repel the idea
that there was no law which could control the dis
bursting officers OF the Government, and in the abb
| sence Of which officers might commit offences,
| and deride the power of the Government to pun
| ish them. He would confine himself to the story
as is upon the paper before him; and leave II to
the Court TO decide whether the case was simply
peculaiOn or default, whether il was one in
dictable at common law. 1t was alleged that at
the time set forth, this officer, being an ev-di
posed person. falsely and fraudulently deceived
and executed the train of circumstances set forth
In the indictment. He writes a letter to an off,
Ger, and follows il up with draft on that officer
he was considering the case Of Pauldng more es-
pecially-and then, TO replace the money which
he has drawn, he ostensibly for the public service,
but in fact for his own use, falsely and fraudu-
lently makes requisition for 1000 dollars, and
places it into the hands Of Paulding, replace the
500 dollars he had drawn, and a second draft
which he afterwards drew. Is this the mere
breach OF trust of defaulter, as the other side
contend, or, he termed il, the artful contrvance
Of cheat? He took strong exception to placing
such a man OH footing with mere deiaulter
He who merely entrusted with public money,
as deposit, gives no bond, yet applies the public
money TO his own use, is not TO be placed in the
same light with the man who uses public money
not entrusted to him, as Doctor Watkins has done.
lie pledged himself to sustain the substance of the
Indictment, against all the ingenuity which had
been, might be brought against it, AS a fraud
upon the public, he could show that the act was
indlctable, without any Legislative enactment.
But even had il not been public fraud he would
contend that the individual was responsible 10 the
Terminal law What do the acts amount to? a
breach of trust cheat. A very great part of
the argument of the other side had not been a.
gainst any thing we had said, but against the We
ry books and authorities they had themselves quo
ted. The facts and opinions, he commended, were
IN his favor, and the burden the other side was
to show that they were laid down wrong.
| MIR. Key then proceeded to inquire whether the
facts charged constituted breach Of trust or an
indictable fraud. He denied that Mr. Watkins
was ever entrusted with the public money. None
OF II ever came into his possession, but by fla
grant wrong. To show breach of trust, il is first
necessary TO show that an officer is entrusted and
then that he has used portion of the money 50
entrusted to him. There can be no such showing
IN the case.-Suppose that the money had been
drawn out of Mr.. Paudng's hand for public pur-
poses, and the Auditor had afterwards applied il 70
his own uses, then the argument on the other side
might apply. But in this case the money did no;
come TO the hands OF DR.. Watkins by the consen,
the Government, but by downright fraud T.
ven the poor and miserable excuse of mere de-
iauit cannot be offered, unless be shown that
he held public money by the consent of the Gov
eminent. Cases OF breach of trust can onIv applv
between servant who has money entrusted 10
him, and his master-a clerk and merchants
disbursing oihcer having public money entrusted
| 10 him, and the Government. He here made re-
ference to opinions in Chitty, vol. 3, D. 1856, which
relate TO breach Of trust by embezzlement of SER
want, cashier oil bank, SC. He put the case
of servant who receives money, and before he
puts in the till, mis- appropraes il TO his own use
| this is only breach of trust: but after he has
deposited it in the till, if he take it, it is felony
He maintained that the statute of 5eth Geo 3D.
which had been relied on by the opposite Coun-
sell bore construction directly contrary to that
which had been put upon it, That law was pass
ed TO make trustee criminal. The existence of
| special statutes for the punishment of frauds in
the post office was relied on to show the common
law did not extend to them. He admitted the ex
istence OF the statutes, but denied the inference
which had been drawn from it, He quoted from
East on the subject OF the trust in a servant
| Cleu cases 10 SHOW the precise operation nj
this principle, which went to show that larceny was
the misapplcation of money which had been oh
tanned contrary to the will of the owner while
breach OF trust was the misapplication of money!
which had been voluntarily entrusted 10 an indivi
dual. The money OF the United States was not nut
IN possession OF the person now charged IL was
locked up in the Treasury, as inaccessible TO him
as to any stranger; and shall it be contended that
an Auditor, who has right to touch this nonev
should withdraw II from the Treasury and place il
in hands from which he can abstractit for his own
| purposes, aud yet be adjudged guilty. of n mere
breach Of trust: 1t was necessary, before an nj.
fence could be adjudged breach Of trust TO show
that the person charged had money entrusted 10
him, and bad used the money for his own use: and
such was not the case here, since the money
charged to have been misapped was never en-
trusted TO the person charged, but il had been ob-
tanned by fraud. He asked if there could be anv
! difference between a 4th Auditor, or a 5th Audi
tor, or an Auditors clerk, or the person WIN
sweeps out the office; if the individual gets the
public money into his hands, on the principle now
laid down, and uses il for his own benefit he has
only to set up that it is mere breach of trust? n
is a breach OF law, criminal law, and not breach
OF trust. He contended that DR.. Watkins had oh.
tanned the public money by public wrong, and
not by trust, and he defied all the ingenuity which
could be arTayed against him, 10 shake this position
tie could not say that the act Of the person charr
ed, wa deeper in point Of morality than breach
OF trust, but Il was OF more serious consedUepces
IN the eye Of the criminal law.
Mr. Key then went into the second branch nj
his argument-whether the charges had been
made out so clearly in the Indictment az 10 bring
them within the range of common law On Ell
Their 81 two grounds ne contended that the charge
could be sustained a fraud indctable az con-
mon Law. IL must he admitted there are frauds
not so indiciable. The wit and ingenuity Of man
viii always Outrun grave legislation, and lecisla
ton can only follow them. From some causes -,
rrnNu NV rafa r. Al IF