The New York herald., 1873-11-05
THE TAINTOR CASE.

The Atlantic Bank Embezxlement
AEair-Argument Motion for
New Trial Tor Taintor-Deciston Re-
served.
Yesterday Judges Woodruff, Blatchford and
Benedict sat in the United States court room, at
No. 27 Chambers street. to hear motion for new
trial OF Frank L. TaIntor who was convicted be-
fore Judge Benedict in the recent term OF the
court for having embezZled about $425 200, the
property of the Atlantic National Bank, OF this
city, of which establishment he nac been cashier.
The District Attorney appeared on behalf Of the
government; and Mr.. ]. G. Carter, Mr.. A. O. Hall
and Mr. John Sherwood were counsel tor de-
fendant.
Mr.. A. 0. Hall opened the motion on behalf OF
the defendant for new trial. He said that the
defendant was indicted in substance and form
under chapter 106 OF the law OF Congress OF 1864,
section 55. The indictment seemed to invite these
legal conclusions for the prosecution First, as
cashier. the defendant embezzled or misapplied
bank iund. Second, he did SO with intent TO
injure the bank. The defendant, at the trial. ad-
mitted each physical act OF withdrawing funds,
and mental assent thereto. He controverted
that such withdrawal amounted to msapplcaton
and denied that he intended to deiraud by his
Withdrawals. His counsel contended that the
withdrawal was not misapplication because de-
fendant intended to benefit the bank by what he
did, and that there was, when he withdrew funds,
that contingency OF loss which ultimately
followed. They argued that even II there
were a technical misapplication OF the
funds, the prosecution must give evidence
OF intent to defraud. The prosecution averred
that the technical misapplication preciuded de-
fendant rom contesting the intent question
At the trial counsel for defendant also argued that
even II these acts OF withdrawal or misapplication
OF themselves presumed intent to defraud, then
this was presumption that he should have Oppor
tunity TO answer by evidence tending to show in
nocent intent; and intent not TO injure the bank.
but TO benent ii by successful results arising from
gains upon the commercial use he made of the
bank funds withdrawn, even although his judg.
ment was imprudent. offers on the part OF the
cluded by the learned Judge who tried the case.
Mr.. Hall submitted that the questions now pre-
sented by defendant for discussion and fairly
stated were:-
Fira-were defendants acts as acts maa In
convey conclusive bad intent. e. one not only not
to be outside Of ss M s but an
zAaaIs Is The statute % % one that makes criminal any ap
not under power granted to national BANK, or one
that to such is assigned conclusive and
Mr.. Hail contended that the crime If any, was
not one at common law, nor under the statutes OF
the state Of New YORK; The testimony OF the gov.
ment against State law; certainly not larceny be-
cause as cashier, the defendant was custodian and
possessor OF the distracted funds Counsel con-
ciuded an able argument contending that the de-
fendant ought to have new trial.
The District Attorney replied TO the argument of
Mr.. Hall. He cited several sections OF the Law OF
1884, and said that all the sections went to show
that the bank had no authority to use any part of
It's capital or funds In the buying or selling OF
stocks in the market, much less to buy them on
margin. Such conduct was violation OF the
charter OF the bank, and the directors
10 buy any stocks. II that was so, IT followed, as
proper result by the Gftythlrd section OF the act
that II the directors OF any bank knowingly per-
mtted any officer OF the association to violate any
OF the provisions OF this section, the rights, IRAN
cnises and privileges OF the ASSOCIATION would be
vi
director who assented TO the same must be held
liable in his individual capacity. And now this
prisoner came here admitting that he took the
funds OF the bank and invested them in the pur-
chase OF stocks, in violation Oh the authority and
charter OF the bank, suoecting the bank TO for
came there and said that this act OF his did not
necessarily injure the bank. 1t seemed to him the
District Attorney that II was trifiing with words
to say that the cashier OF bank who took
its funds in this manner did not necessarily injure
the bank. This must form the very nature and es-
sence OF the 1t urged the part of the de-
fendant that there must be criminal intent proved
apart from the mere wronglulness OF the act; that
defence were at Oerty TO deny IL. II that so,
he could not see how the defendant could be per-
mittee to deny. as he might have done II the prac-
tIce OF the State Court allowing prisoners to testify
IN their own behalf prevailed IN the United states
Courts, that he had criminal intent The defend.
ant sad lit Is true took the capital OF the bank
and its trusts and used them IN q
way which the authority oil the bank
did not - an authorize, but ln the inmost .
bank by the operation. Therefore, had no inten-
ton TO inJure the bank" That was not true In all
cases. The inference OF criminal intent, arising
from the mere wrongfnlness OF the act, snoud be
rebutted by proof to the contrary. The learned
counsel cited the case of Rex vs.. Harrington, In
Russell and Ryan, page 207, where person was
charged with setting fire to a mill with intent to
iDjure another person; and 1t was there held that
a man must be supposed to intend the necessary
consequences OF his own act. This was q case de-
clded by several Judges In England, and among the
Judges VINO gave their sanction to TINS decision was
ord nFaF
cited other English cases In support Of this view,
and then turned his attention TO American cases,
adverting TO arising In case OF illegal voting
as bearing upon the question at issue. The case
was reported In Bradford, and had reference to
party who was indicted unaer the statute, which
provided tnat II any person knowing himself not
10 be qualified as voter should wilfully give any
vote 1t was held that II ne admitted at the trial
that he voted at an election IL was equivalent TO
an admission that he voted wiliully. All offences
against the United States were maluIn prohibitum,
as they were against statute. IL was abhorrent 10
any mans moral sense that person should use
trust funds IN manner not authorized by
law; and 1t was quite as abhorrent to
when wien he had no right to vote It was
not open 10 the defendant to say that while the
crime was statutory crime In the United states
Court, yet that when he committed an act clearly
ultra wires, and did a thing as little within the
power oil the bank as to buy lottery tickets he did
not know that he was not violating the law, be-
cause ne must be presumed TO have known tnat
hls act was illegal, as no person can presume TO
plead Ignorance OF the law. The defendant could
not he allowed TO come In mere. and say, "True
committed a bad act, but did 10 for a lawful pur-
pose ~ He claimed TO do wrong In the hope that
right would follow from IL. He Uhe District
Attorney did not believe that the Court would
permit this man TO say that ne did this act nvolv.
ing the loss OF the capital OF the bank, with good
intent and that, therefore, he was free from
criminal blame.
Mr.. }: G. Carter followed in an able speech in re-
ply on behalf OF the defendant. with regard TO q
man being supposed To intend the necessary con-
Seqnence OF nis own act he apprehended that that
meant Msans not ct ale legal but logical consequence. Their
deyfnce 10 this case was the common one OF good
lntopt Such defence was often raised in bad
Iaitia- and was apt 20 excite sarcasm in matter OF
this xsnd At moment when there was talk OF
an avivanche OF bankruptcy and instances OF fraud
anu urraches on trust the community and the press
would inSnisn protection from those wrongs. In
snch circumstances the best OF minds could not be
Uee from npprenengiOn. or nerhane from