Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1879-10-22
THE SHERWOOD CASE.

THE SHERWOOD CASE.
Points In the Argument of Hon. @. ID
O'Brien for Arrest of Judgment-Tae
Matter Taken Under Amusement by
Judge Nelson Until Monday Next.
As previously announced the case of II. s.
Sherwood, the Brainerd postmaster, convict
ed of embezzlement, came up yesterday
morning before Judge Nelson for hearing
on the motion of defendants counsel for ar
rest of judgment.
Notwithstanding the interest sherwood's
case has awakened in this community the
attendance in court was small.
Hon. @. D. O'Brien appeared ready to
combat for defendants interest," and Hon.
w. w. Bllson, district attorney, was present
to guard governmental interests. .'
Without any skirmishing preliminaries
Mr.. O'Brien began his argument for
Sherwood by citing numerous author
tiles in cases of similar import. Mr..
O'Brien then confined himself to the law in
the case. and said that the verdict as rem
dered was at fault in law and fact. AS re-
turned it found the accused guilty on the
fourth count of the Indictment or for en-
bezzling thdDamount of 1881. The first
count recited the charge that accused had
embezzled $4,000, the sum total of an en-
bezzlement of which the 1881 was a part,
Such verdict was inconsistent in law. .
It the second place the evidence submitted
on the trial was insufficient upon which to
base verdict as returned bY the iurv.
Hence the verdict was at vari-
ance with the facts in the case.
These two points Mr.. O'Brien
elaborated by quotations from the law refer
ence to the court's.t harge, and concluded
by contending that the court would be sus-
tanned in setting aside the verdict, not only
as irregular, but void in law and fact.
Mr.. Billson replied at length. He
held that Mr.. O'Brien's position was
not good one in law. He held that the
verdict of not guilty on one count of an in
dlctment and guilty on another, was no rea-
son why the verdict should be set aside. In
fact, in practice this was not unusual, to find
on one count and acquit Oh another. In
this instance the accused was found
less sum than was altogether
charged against. Yet nevertheless, It was
duly charged against him as an offense, and
in due course of trial he was found guilty of
it. Mr.. Billson couldn't see within reason
or in law how the verdict could be set aside,
or how the claim of opposing counsel could
be considered good and sufficient.
MIR. O'Brien responded. In his answer he
made. a forcible and eloquent argument.
Point by point he maintained his position
by a review of the testimony in this case.
Ibis failed to prove, he contended, that &C.
cused could have been wisely or reasonably
found guilty of embezzling the $181 re-
cited in the fourth and only count
upon which accused was convicted. The in
dictment had been drawn and the case tried
upon theory of which the court, the jury
or defendants counsel could have had no
previous knowledge. This theory, or the
course of the prosecution, was to establish
the embezzlement of $4,000. What consti-
tuted a pranao .facie case against
the accused was defined in
the statute, and the court
in It's charge SO stated, and further set forth
that the prosecution had so established it
against the accused. The jury, however, in
its verdict, abandoned the law and charge,
found him not guilty of embezzling s., 800,
the amount demanded of him as due
legged he failed to turn over, and
part of the total, $4,000. Mr.. O'Brien held,
on the contrary, the evidence showed that
this settlement, in which the $181 was in
volved, had been met-even moro than met.
1t was in evidence that the accused had at
the very time this settlement occurred and
the money was due from it, he had paid over
$500, or about that sum. In other words,
the settlement, or what was due on it, and
for which accused was convicted, he had
overpaid. Again, in conclusion, Mr.. O'Brien
thought in law and justice his client was en-
titled to have the judgment set aside, or at
least that he was warranted in asking for q
new trial.
The court followed from few particular
and pointed inquiries as to the 1881. He
wanted to know upon what settlement the
amount was due.
Mr.. O'Brien answered the last or July
settlement, and was confirmed in this by
MIR. Billson's admission to the fact. ~.
The court asked if this sum was embraced
IN the total named as having been embezzled
in the first count. IT,. =. -., -s.
Mr.. Billson confessed that such was the
fact. -
Mr.. O'Brien interrupted to say that had
such an issue, involving the amount of $181,
been presented to the court, the defence
would have given an Offset to it by showing
that the accused had paid $500 on this very
settlement. 49,. 49,.
After some further desultory conversation
between court and counsel, the court STATED
that the question involved was one of great
Importance and somewhat novel, he felt
inclined to give it thorough consideration,
and for this reason would take the matter
under advisement, making his decision
known next Monday. 49,