The Portland daily press., 1880-05-03


says that Pencils first remark when found
was, They have robbed me, they have taken
everything" How did Mr.. Pencil know the
fact if he was recovering consciousness?
Mr. Mayo stated that Mr.. Pennel! stated on
the day following the robbery that the amount
of the county bonds taken by the robbers was
$7000 January 81, 1875, it had increased to
S9,973.5. Now he claims that whatever the
amour may be which is due from him to the
county-all was taken by the robbers. How
much that is he cannot say. 1t is an elastic
quantity.
The condition Of the books must satisfy YOU
that robbery was necessary. We have been
able to find only the books for 1878 and 1874.
In those we have discovered errors amounting
to over $1,70O. If the books prior to 1873 were
not missing doubtless the amount would be
much larger. The double charges extend from
the first to the last pages of his journal They
could not have been made without erasure Of
check marks to the signatures. Some of these
items are oflarge amount. Howard & Cleaves'
bill in one place is charged $3.50, in another
$265 In one place, Notwithstanding double
charges to the amount of 5000, the cash book
and journal are made TO balance within eleven
cents. The amount paid by Bridgton Oct 81
1875, S39229, is not carried onto the books as
paid over until called to his attention after the
robbery.
You have seen his check-book and the
stubs of checks drawn on county funds in IA
proof of debt in bankruptcy you saw that his
loss by bennett alone was about $500 His in
come from other property was small You can
Judge as to the expenses of his family. Mr.
Pennell has had four years since the last trial
in which to examine the books, and the ac.
curacy OF the accountants (Mr. Codman) re-
port has not been impeached
Even if you were satisfied that robbery was
committed, you would be unable to saw of
what amount he was robbed, in the condition
OF his books of account He cannot aid Won. as
he pretends that he was ignorant at the time of
the robbery of the amount in his safe In any
event the county is entitled to a verdict for the
amount OF errors which we have shown, and
which are uncontested, in addition to the sum
which is admitted to be due in the certificate
But the improbabilites of the story of the rob
berry are so strong that it demands too great
credulity on the part of an intelligent Jury to
accept it.
If Mr.. Pennell, with all the irregularities
shown in his accounts and transactions with
the county, can persuade a jury to stamp with
their approval, through sympathy for him and
his family, the defence set up in the case, is
there not danger that the precedent Tins es
tablisLed will, in the future, lead to great
evil? Unless you are satisfied, by tie evil
dence, OF the fact of robbery, do not through
| sympathy, render a verdict which will break
down some of the safeguards which protect pub
Lc funds Let your verdict record the facts and
be such as will commend itself to the approval
OF your own minds as you hereafter look back
upon this trial.
THE JUDGES CHARGE
Judge Walton then charged the jury in
substance as follows:
Gentlemen of the jury:
The question in this case which YOU a. re-
| quired to answer is: Whether Thomas PEN
nell was or was not robbed in the way alleged.
The plaintiffs do not deny that he was elected
and entered upon the duties of tie office of
county treasurer They do not DENY that he
gave the bonds necessary for that office THE
court read the form of bond.] The form Of
defendants acknowledge themselves to be in
debted to the county, but the second part is
condition that if he shall perform the duties
faithfully the bond shall be null and void The
county Of Cumberland claims by their writ to
recover $4,000 from the penal sum of Mr.
Pencils bond. Defendants say-4 they have
kept and performed all the aties required by
the bond, and claim it null and void The
learned counsel for the plaintiffs replies and
says there is the sum of $10,294.56, which Mr..
Pennell has not legally accounted for That
he has not paid it out for the use of the couu-
ty, and that sum is therefore DUE Defense
says it is true this sum remains apparently due,
put as an excuse OF apparent default they aver
that the plaintiffs were robbed of that sum.
At a former trial it became serious question
whether the question of robbery was a good
defence. 1t has been before the law court and
it has been decided by that body that if Mr.
Pennell was robbed it is a sufficient excuse for
his not accounting for said sum- or that he is
not liable and not required to bear the loss. |
say II he is robbed, without negligence or fault
on his part, it is sufficient excuse for his nom
payment of the amount claimed as a balance
DUE Therefore this point of law is settled rs
rule in this state. Hence it is a good plea on
tn part OF defendants to set up the defense
that he was robbed of the amount of the alIeg-
ed defalcation.
In view of the rule of law the only question
"hlcn you are to decide upon according to
argument of the counsel is: Was Mr. Pennell
robbed?
Court read statement of defence.1
am particularly requested by the learned
counsel OF Cumberland county, to state that
the court did not hold robbery good defence
if it is through his carelessness and negligence
Then comes the question what does the law
require of the custodian of money entrusted to
bis care. 1t does require him to use such
diligence in the care of the funds such care as
prudent men ordinarily exercise II he does
not use this degree of care it is his fault. But
If he did keep it with prudent care and dill
gence, and then was overDowered and robbed
he is not responsible.
The question of robbery will embrace the
element Sin manner and form, as the de-
PENDANTS have averred." But after all the
great question is: Was he robbed at all? De-
PENDANTS aver it; plaintiffs deny it. The i'm
portance of this issue you cannot fail to appre-
ciate. You cannot come to any result without
serious charges upon some one. The issue is
forced upon us and we must determine The
burden OF proof is upon the defendants. They
aver the robbery and seek to excuse Mr. Pen
nell from payment on this ground.
Are you satisfied so that you find an abiding
conviction that the allegation is true? Is there
fair preponderance of evidence to decide in
your mind of the truthfulness of the allega-
ton, then your verdict will be accordingly
l mean that II there is no money in his hands
now belonging to the county, he can't be con-
sidered defaulter; but if he has not account
ed for all the funds he is a defaulter There
IS much could say to you, but it is not proper
Tor me to express any opinion that may en-
terrain in reference to the case. The entire
responsibility rests upon you of deciding this
important question. One urges the high i'm
probability of the story of Mr.. PennelIs being
robbed. The ether side urges with equal earn,
estness the probability of the alleged robbery
OF Mr. Pennell. ! say you must consider all
the probability as indicated by the evidence,
appearance, department, &c., of the wit
neSSeS
In view of probabilities and improbabilities
OF their testimony, you must weigh it. You
have had the privilege of listening to the able
arguments of the learned counsel. IT'S well
TO consider the consequence of a verdict but
this one object is to to be reached-the truth
fulness of the case. Is it true Mr.. Pennell has
been robbed; or is it true that Mr.. Pennell
has not been robbed.
THE VERDICT.
The jury were out just one hour and half
and at 4.3O O'Clock returned clean verdict for
Mr.. Pennell, as follows:
The jury find that said Thomas Pennell
was robbed of the sum of $40, 294.56, in man.
ner and form as the defendants in their brief
statement have alleged.
JAMES G. ELDER, Foreman"
MAINE.