The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1843-08-10
The Phoenix Bank Frauds.

The trial OF William Wyman, late President OF
the Phoenix Bank, for embezzling the funds OF the
bank, commenced at Concord Tuesday. The
indictment contains eighteen counts, ten OF which
are against Mr.. Wyman and Thomas Brown, Jr.,
cashier, principals, and eight against William II.
Skinner, merchant, as accessory before the fact.
Daniel Webster and Franklin Dexter counsel
for Wyman, and Rufus Choate and Sidney Bartlett
for Brown and Skinner. For the prosecution, Asah
ell Huntington. attorney for the second district
We copy the proceedings from the Boston Post: =
The ball was set in motion by Mr. Huntington,
who moved that the defendants should be arragned.
Mr.. Bartlett suggested delay in the arrangement,
and said that tho counsel tor the defendants had II
in contemplation to submit written motion tor
separate trials; but they would not be prepared to
submit this motion till after dinner.
Mr.. Huntington replied that the motion might be
entertained in the afternoon, notwithstanding the
arragnment, of which he agreed to take no adj
advantage.
Mr. Dexter said that there was yet another mo-
ton which the counsel tor the defence intended to
make, viz, that the attorney Tor the commonwealth
should be required to specify IN advance the counts
in the indictment which he proposed to rely on.
The court then, to save time, ordered the ndlct-
ment to be read, and allowed the defendants to sus.
pend pleading to it until the motions suggested had
been made heard, and decided upon.
The clerk, Elias Phinney, Esq, then proceeded
to read the indictment, the first count OF which al
eges the felonlous taking and stealing OF no less
than four hundred and fifteen thousand dollars.
Without calling upon the defendants to plead, the
court adjourned till after dinner. The reading OF
the Indictment, in which similar allegations were
reiterated eighteen times over, was considerable OF
bore. think it strange in this age OF legal re-
FORM that the legislature has not passed law pre-
vdlng that in all cases where an indictment exceeds
Two pages of foolscap in length it shall be composed
and set music In capital Gead
time Miss Lucy" would be very apropos.
In the afternoon, Mr.. Bartlett, for Skinner, read
application for separate trial, supported by an
affidavit made by Skinner, setting forth that he has
counsel entirely separate from Wyman that there
are counts in the Indictment (he Sd and 4tb) which
do not refer to him; that evidence must and Will be
admitted the said counts naturally calculated 10
unjusy prejudice him in the minds OF the jury; and
further, that the respective defendants have sepa
rate and distinct detences. The 1idavlt concludes
by a declaration, that the defendant does not In
tend TO use either of his CO. defendants as wit
ness.
The force of the defendants claim to a separate
trial will be understood by reference to the I'd
and 4th counts. charging Wyman and Brown with
embezzling $4,000, but not charging Skinner as
accessory.
Mr., Bartlett supported his motion by citing autho-
rifles, and pointing out the peculiar hardship oil unit
| ing Skinner with the other defendants.
In rising to reply, Mr.. Huntington stated that he
had secured the assistance on behalf OF the prosecu
ton of Daniel Wells, e1mmonweallh's attorney tor
that the court and counsel could so present. anayze
and apply the different points OF the evidence, as to
enable the jury distinguish what portion was per-
tinent and applicable to each particular individuals
The Court intimated that there was some weight
in the suggestion OF the defendant, growing out OF
| the third and fourth counts.
Mr.. Huntington then proposed to mol. pros. those
counts, but the Court declined to allow the case TO
proceed any farther until all the defendants had
pleaded, after which the pending points could be
decided
After the delay of minute or two the defend.
ants then seyerally pleaded mot guilty. in the
der IN which they are named IN the Indictment.
The third and fourth counts were then abandoned
| by Mr.. Huntington.
| Mr. Wells opposed the application for severance
and asserted that the grounds relied on by the de-
| PENDANT were by means novel In cases where
more than person was implicated, and that, in
the course o! his practice, such grounds had not
been held to be sufficient.
Mr.. Choate referred to the preliminary examina-
tons before the magistrates in Charestown, last
fall, as furnishing absolute, overwhelming proof
that Mr.. SINNERS defence must depend widely
different evidence fromthat upon which the other
defendants rely; and also that the evidence against
the defendants was totally different to time, cir
cumstances, and character. They are three dis |
tnct classes of individuals-one presiding discre- |
onary officer; the other a recording, certifying off
Ger, and the other a borrower, and each touched |
the property at different and distinct stages, if either
of them touched it at all.
Mr. Dexter said that he himself and his colleague,
Mr.. Webster, counsel for Mr. Wyman, were desir-
Gus that SINNERS application should prevail, the
separation would enable Mr.. Wyman to present his
case with greater Perspicuy and simplicity to the
jury.
MIR. Webster referred to the practice of giving in
dependent challenges in capital trials, where there
is more than one defendant. Now in the at
the bar, the defendants have no right to challenge
peremptorily, but each may challenge for cause and
one defendant may have cause to challenge juror
who might be quite acceptable to the other defend.
ants, or one OF them.
His Honor the Judge, said he was considerably
impressed with the suggestion, that great injustice
might ensue to Mr.. Skinner, if he was not severed
in the trial Now if there is obvious danger that
the deences of the defendants will conflict the srgu-
ment of inconvenience from the loss of time, &c,
was not entitled to much weight. He bel ieved that
from the nature of the case, as far as it was ind
Gated in the indictment, such conflict, josting
in the defences would be likely to occur This
could not be without working injustice in some
quarter and for that reason, and that alone, he
would allow the motion. His honor then dl-
rected the clerk to empannel jury to try Wy
man and Brown, but Mr.. Dexter objected to the call
until the attorney Tor the prosecution had elected
upon which counts to try the defendants He
charged that by adding count upon count, the dis |
trlct attorney had, IN effect, evaded the statute
which provides that in trials for embezzlement evil
dence of acts done more than six months before the
finding OF the indictment shall not be admitted.
Mr.. Huntington replied, that the whole series OF
frauds constituted but continuous, stupendous
transaction, and that evidence to prove Instance
had just tendency to explain the criminal motives
OF the parties In other instances.
Mr.. Dexter, in his reply, cited host OF authori |
ties growing out of similar omnibus cases, chiefly
OF embeZzlements OF servants from masters, and |
agents from principals.
Mr. Huntington in reply pointed out the natural
and important difference between mere corporate
institution, ana person, master or principal.
The officers indicted were the eyes, the mind OF
the bank The bank possessed no faculties by
which it could supervise the conduct OF those Off
GERS. The officers alone possessed the means OF
explaining the transactions, and the government had
called upon them TO do so. Common sense pointed
out the distinction which thus existed between men
and corporations IN short, Mr. Huntington demon
srated that " corporations are bodies without
souls" but he did not exactly say so.
lie was followed on the same side by Mr.. Wells,
who maintained, from analogy, that distinct and
separate larcenies might be proved under an lndct-
ment like the one before the court. In tns case
all that is charged is that the defendants had la
ken Ill The money OF The bank. The money was Y