The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-04-28

Inc argument on motion 10 discharge the com
plant against j. B. Smith and John Fitzpatrick fo
an alleged defalcation in the Finance Department
which has been postponed from time to time, wa
concluded yesterday before the Recorder at biz
chambers. Ht
Counsel for the defendants said he would com
mence by recapitulating the important facts Of The
case.
The Recorder intimated that he only wanted the
counsel to discuss two propositions First, how far
the testimony of Mr.. Brannigan disproves the theo
ry of the prosecution, that there was Q conspiracy
between Mr.. Smith and Mr.. Fitzpatrick and, Sc
cOndly, whether the action Of Mr.. Flagg was egiti-
mate or illegtimate.
Counsel said he would address himself TO those
points in the course of his argument. Cunsel pro-
duced a general power of attorney gwen to Mr.
Brannigan by the President of the Bovery Bank to
receipt for all moneys due to Mr. Fitzpatrick on con-
tracts with the city, arguing that there was no re-
strction of time, and the effect in laS would be to
operate for the purpose of this prosecution, as an as
Segment OF this contract from tho bowery BANK 10
Mr. Brannigan, who was the medam through whom
the prosecution charged in this csc that Fitzpatrick
was acting in conjunction with smith for the prr-
pose of defrauding the city tresnry.
The Recorder observed thatf the c0unsels pro
positions were true, Mr.. Dean the President OF the
Bowery Bank, should be implicated with the ether
defendants.
Counsel remarked that b, Honor would not be
going out of his course to rlieve Mr. Devlin Of any
implication in the ALLEGED conspiracy, although
he was not strictly party to tbs pro-
ceeding. The Mayor ad no facts before him
when he intmated thatDeyn was connected with
this alleged conspiracy while the Recorder was ac-
quainted with ali the facts. 1t would ony be an
act of Justice for thisCourt to relieve the character
of Mr.. Devlin from tie stigma which the Mayor al
though unintentionsy, improperly cast upon it. Il
was not proven byhe prosecution that Fitzpatrick
and Smith ever SPIKE to each other-hence the
charge of conspray was unfounded; and the speak
er affirmed that neither of the parties had ever
spoken TO each oher.
acts
Counsel continued by stating that the counsel for
the prosecunorhad said thatit was enough TO- his
Honor to know $40, 900 had been distracted from
the city ea af tSs dss ,neps was
ed this none it was the duty of his Honor to hold
them to answer at the bar Of the court having jlrs
diction of tht crime Counsel called the Recorders
attention tcthe Revised Statutes, which provided
that two things must be established First, that an
offence hasDeen committed; and, secondly thatthere
is probabl6cause to suspect the defendants ofbeing
it's author. What is an offence? Isit the mitaken
extraction of money from the city treasury There
was noting in the evidence to show that although
this mory was drawn improperly, it was drawn
with eminal intent.
The Rcorder-The alteration of the fgue from
81, 900 b $l2,000is circumstance
Council mentioned that the Court should have
clear poof of criminal intent
Subjined are the points of the counsers motion
for the discharge of the defendants:-
DEFENDANTS couNsEL's POINTS.
l. the Revised Statutes the Recorder, who aolds the
defennnts TO yer, must find two thinge First that
an ofce has committed second, that th0e Is pro
babecause TO suspect the defendants OF being s authors
Az toau offence il is not enough that money taken
~ itv trans or m
mistae. II must have been Intended 70 draw out with
knowledge that II would be improperly drawn out 1t
was lrswn ALL This Is the conspiracy charged An
erro or In applying the amount drawn out to the
correct account not otherwise extracted mpro-
perry, no crime The Recorder has then 70 nd beyond
ohaged When that found the persons suspected upon
probable cause can be held TO answer.
2 To warrant q holding for conspiracy the pro
section must establish: First, that two more
pcrsons have entered into q criminal agreement or
league second that some act 70 effect the object
literal personal commission OF the act net necessary
Q guilty person act through another, who 10 IN
agent These two facts must DO made out: First, by
positive proof or second clear nferenta or presump
tive proof They not by the FIRST Are they by tn
latter The prosecution say .he over, &c. e pre- pre-
that proves the conspiracy This asking the Recorder
70 infer First that Smith, instead OF copying this state
ment altered book nnoceny altered the book an
then copied H. second that Fitzpatrick prvy 10 this
when there proof that be ever saw or heard Of tn
contents Of the documents in the Comptroller Office
specific account, how could Fitzpatrick Brnunigan 4
the witness for the prosecution and they cannot dig red
him Shall the whole case be decided upon suspicion, OF
upon positive legal evidenceY
g. The prosecution having called Brannigan must take
rest s dea Of combins,ion between Deyn and Ftrpsi
rick. II the bonds did not inform Fitzpatrick OF the'
being issued upon the Forty ninth street contract, ht
could know II IN other way, for BranngAn himself did
not then the character Of the receipt be had signed
T. In relation 10 Mr. Smith there is as much testimony
against Dkeman there Is against him. II he Is held
he hal ker
ent which Mr. Flagg adopted the basis Of his fat fo
Il bonds TO issue. II the ,uton will MOI suspect
Dkeman shall they be permitted 10 hold smthS
g. Unless the statement which the prosecution claim
was false WAS legal basis for the action Of the Comptro
Ter in ordering the bonds 70 .sus correctly made out
TO effect crime by means Of ~ II s said tho conspira
tors reasoned upon tho folly OF Mr. Flsgg-the pro
suppose a conspiracy 70 draw money from q bank b.
blank check, In the name Of person not depostor
any mode In which nothing but the folly or thought
essness OF the bank agents could help out the crime
IL ndc,able7 MAINTAIN that IL Is not. Mr.. Fagg IN.
no right 10 be deceived In the mode proposed, was
would have been different Il they had put before hin
something coming from the Auditor, which In point
fact not the AUDITORS oct II Mr. Flasg had done hi
duty he could have been deceived by the statement
correct Incorrect The charter OF the city forbds tn
drawing out Of any money from the city treasury uncs
The ssc ,ss WEN thu oou
lawf What was IN objectS Was not
stop the leaks in tho city treasury Dan Mr.. Flae
I
without The unlawful concurrence Of Mr.. Flagg such
conspiracy could not have been successful No doubt
was unintentioua; II unlawful, nevertheless. Upo
this point-(see The People stetsou, Barb 8 C. r.
151-157; March The People, 3D., soi-3o4) car
be forgery 10 make such statement though mad
fcloniously because vas Illegal In ia framework.
Russell On Grimes, s59.)
g. Al the Court OF General Sessions grant ne'
trials upon the merits, the question for the Recorder
ths-vbether, he were sitting ~ the Sessions and
jury 10 convict upon this evidence he would not
an application was made, grant new trial II he would
Why hold these defendants 70 answer
Counsel dwelt at considerable length on the Aft
point, maintaining that Mr.. Flagg could be ndicte
FOR violating clear provision OF the charter. II
argued from the evidence that although Mr.. Flag
was admitted 10 be q man Of integrity, he was &
tally incompetent TO discharge the responsible dutie
Of his Office.
The Recorder intimated that the Comptrolle
could be indicted for malfeasance but not for felony
His Honor said he would examine the points prs
sented by counsel both sides, and render bis d.
ssion in about two weeks.
Board OF Supervisors.
This Board met last evsnipg-E1Uah y. furdy, Hq.,