The Emporia news. [volume] (Emporia, Kan.) 1859-1881, 1878-09-20

will unhesitatingly believe to be true,
but is of such character that they Will
be ready and willing to act upon 1t In
matters of the highest concern and i'm
portance to their own interests.
9Th. You are the exclusive judges OF
the evidence, of what 1t proves or dis
proves, of its weight and of the CREDIBLE
| ity of the witnesses, and in determining
as to the weight or credibility to be CIV
en- to the testimony of any witness, it is
proper and right for the jury to take in
to consideration his character, his intel
| ligence, his means of knowing whereof
he testifes, his bias or prejudice for or
against the defendant, together with any
personal or pecuniary interest any wit
ness may have in the event of the prose
cution as shown by the evidence. To the
evidence alone you are to look In de-
Gliding questions of fact you are not to
be guided by any supposed knowledge
of events or occurrences outside of the
evidence. You are to allow no preJu-
dice, passion or partially to bias you in
deciding upon your verdict. If crime is
clearly proven by the evidence, it is your
duty to see that it is properly punished,
and it is equally and especially your du-
ty to see that an innocent man is not
| punished and disgraced.
9th. The criminal statutes of Kansas
applicable to the charge embraced in
the LIST count in the information filed in
this case read as follows: "If any officer,
agent, clerk or servant of any incorpora-
ton, or any, person employed in such
capacity, shall embeZZle or convert to
his own use, without the consent of his
employer, any goods, rights in action,
or valuable security, or effects whatso-
ever, belonging to any cOpartnerShip or
corporation, which shall have come in
to his possession or nnder his care, by
virtue of his employment or Office, he
shall, on conviction thereof, be punished
in the manner prescribed by law for
stealing property, of the kind or value
| of the article so embeZZled." And that
portion of the criminal statutes relevent
to the charge embraced in the Sd count
in said information, reads as follows:
''If any agent shall neglect or refuse to
deliver to his employer or employers,
on demand, any money, promissory
note evidence of debt or other property
which may have come into his posses
sion by virtue of such employment, at
ter deducting his fees as attorney, charg-
es as agent, or stipulated commission
for making collection of such money,
unless the same shall have been lost by
means beyond his control before he had
| opportunity to make delivery thereof to
L
ployer or employers have permitted him
to use the same, he shall, upon convic-
ton thereof, be punished in the manner
provided in this section for unlawtully
converting such money or other proper
| ty to his own use"
The law as above quoted, defining the
crime with which the defendant is charg-
ed, is plain and explicit in its terms,
easily understood, and needs but little
comment. To embezzle, therefore, is
to fraudulently appropriate to ones
own use, personal property (Which in
cludes money! with which one has been
intrusted as an agent or officer. 1t is a
breach of trust. The unauthorized use
| or conversion of that which came law
fully to the possession, or the unauthor-
thOriZed or willful refusal or neglect to
pay over, on demand, any money or other
effects lawfully in the possession of an
agent or officer would, under the statutes
of Kansas, amount TO the crime of embeZ-
ment
It'll. The information charges that the
defendant was the agent of the State of
Kansas for the sale of the lands set apart
| for the use and maintenance of the State
Normal school at Emporia, and that
while acting in that capacity, he dis
posed of some of said lands and convert
ed the proceeds thereof to his own use.
The law gives to the board of directors
or regents of the said Normal school
power to appoint such agent for the
State; but 50 far as this prosecution is
concerned it is not essential that the de-
PENDANT should have been appointed at
all, and no appointment need be proven.
If he was permitted to act as such agent
and did act as such, in the sale of said
lands, this, if proved will be sufficient to
bind him as an agent of the State. If a
man holds himself out to be an agent
and does that which would amount to
enfbezzlement, (or any other crime) if
done by one truly an agent, he cannot
be heard to say, when prosecuted, that he
was in fact no agent. Claiming to be an
agent and acting as such, he would not
be permitted to deny it when called to
account for his acts as such agent, and
money received by him while acting in
such capacity, would in the fullest sense
come to him, by virtue of his employ.
kment.
9Th. When demand is required in
order to bind an agent, such demand
may be made by any authorized agent
of the principal, and if the jury are sat
isfied from the evidence that the board
of regents of the state Normal school
authorized any one or more of it's mem
bes to make a demand on the defendant
for any money which may have come to
his hands from the sale of Normal
school lands, this would legally empOw-
er them to make such demand. In order
to constitute legal demand no particu-
lar words are necessary to be used, if the
party making the demand use language
that plainly indicates to the party upon
whom the demand is to be made what
he is required to do. This would cOnsti-
tute legal demand.
9th The defendant, in his defense, re-
lies to some extent upon the statute of
limitations. The information charges that
the embeZZlement was committed on the
9th day of June, 1877. In order to sus-
tain the information it is not necessary
to prove the crime to have been COM
mitted on that day, but prof that the
offense was committed at any time with
in two years prior to the commence
ment of this prosecution is sufficient.
This prosecution was commenced on the
18th day of March, 1878, and therefore
any money which the defendant may
have received from the sale of any of the
lands for the use and maintenance of
the state Normal school, by virtue of his
agency for the sale of the same, after the
| 10Th day of March, 1876, could not in any
wise be affected by the statute of linn
| itations. But if the evidence satisfies
the jury that the defendant received any
of said money as charged in the inform
alton at any time before the 10Th day of
March, 1876, and that he afterwards con-
verted the same or any portion thereof
to his own use, then it will be a fact
for the jury to determine from the evil
dence whether or not said money was so
converted before or after the 18th Gay of
March, 1876. If before, then the defend
ant would not be criminally liable un-
der the first count In the information.
But if after that day, he would be so far
as the statute of limitation is concerned,
or if the defendant at any time received
any money from the sale of Normal
school lands, as charged in the infOrma-
ton, and at any time after the 18th day
of March, 1876, and before this action
was commenced, neglected or refused to
deliver the same an demand to the board
of regents of said school, or to to their
authorized committee for that purpose,
he would be liable under the 3rd count
in said information for all money receiv-
ed by him at any time within three years
prior to the time of making said de
mand, so far as the statute of limitation
is concerned.
J 10th. The gist of every crime consists
in the intention of the person charged,
and unless guilty intention is shown
no crime is proven. BY guilty inten-
{ ton mean the intention to do the par.
! ticular unlawful act complained Of, and
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