Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1884-09-02
Che Tibhitts Case,

Judge Henry, in the Police Court yester-
day morning, rendered the following de-
cision in the case of r. P, Tibbitts
The defendant in this case is charged by the
complaint on file with embezzling 81 600 belong
ing to the Pacific Coast Building and Provident
Association.
The examination of the case has occupied
considerable time, aud the arguments of City
Attorney Anderson and defendants counsel X.
T. Devlln and H. L. Buckley, have been iull and
exhaustive. After review of the evidence ana
an examination of the law, am prepared to say
| that in January, 1884, the defendant and one
| Howett together with several well-known citi-
/ zenS of Sacramento, as ineorporatorS and Di-
rectorS formed the said association, adopted its
rules and regulations elected its officers and APP
pointed its agents to canvass for membership.
The testimony of witnesses the arguments OF
| counsel and the public press have so thoroughly
| explained the plan of the association that deem
II unnecessary to refer TO II IN detail. II Is per-
haps. sufficient TO say that according to the evil
| dence, all persons who Joined the association
| were first made acquainted with the plan and
made to understand that the amount of admis-
| sion fees and the first payment of annual dues
| were to be used for the payment of the commits
| sions of agents. the services of Directors and
| other expenses of the association. Although the
| laws OF the organization provide for an assess
| ment 10 be levied upon the members in future,
! it appears from the evidence that no funds have
been collected or held by the association except
! for the purposes above mentioned, and that 50
far as the defendant is concerned Tor those pur-
poses the money of the association was used by
! and with the consent OF its members. OF the
| character of the association simply say: 1t is
| based on improbable and absurd theories, calcu-
| lated only to lure the unwaTy to part with their
money without any reasonable expectation OF
deriving any benefits, and II is matter OF sur
| prise and apprehension that men protesting Il
| knowledge of business, and desiring to main
| tain reputation of integrity, should engage i'll
| any such enterprise.
| But the question of law presented to me is
I "a Directors n n
! agreement among themselves divide (after pay
| ing expenses the surplus of Il particular fund
paid in by members who join the association
| with the understanding that from such payment
| they derive no advantage. there being no mis-
representation as to the disposition of the fund,
| are such Directors guilty of embcZZlement?
| Section 5ll of the Penal Code provides that
| Upon any Indictment for embezzement it is Il
| sufficient defense that the property was appro-
| priated openly and avowedly, and under a
claim of title preferred in good faith, even
| though such claim Is untenable.'
| In the crime of embezzlement there must be a
| relation of trust existing between the parties.
| Money or property must have come into the
| hands of the party Charged by virtue of that
trust and he must in violation of his trust and
not under a claim of right, have appropriated il
| to his own Use. 1t is true that the defendant
occupied Il position of trust, but whatever money
he received was not received by him in the rel,l-
ton of trustee TO hold in trust for certain pur-
poses or for any person. AlluSion has been
made to the defendants flight. Flight is a cir
custance tending 10 snow guilt. IL IS III the
nature of a confession. If a man is charged
with crime, or If it is probable that he will be
charged. and he flies, it is an indication that he
is conscious of guilt. But the evidence does not
| show that the defendant did flee, or intend to
| flee On the contrary, it shows that he made
| known his intention of leaving the city the
place of his destination and the object of his
visit, some time before his departure, to the Sec
| rotary of the association 1t is not for me to
| consider at this time what, if any, crime is
chargeable to the Directors of this incompre-
| henSihle financial enigma, which depends for
| its existence upon the credulity of verdants
| who may be found willing to attempt solution.
| The question for decision is this Is the de-
| PENDANT Tfbbitts guilty of embezzement?
| / think not 1t is therefore ordered that he be
| discharged.