New-York tribune., 1886-02-14
WARMER AND work ser FREE.
JUDGE BENEDICT D CIDEs FOR THEM.
HOLDING THAT TIE INDICTMENT WAS DETECTIVE
a NJ " ONE TEOBNRfF

!
HOLDING THAT Tue INDICTMENT WAS DETECTIVE
AM " ONE PROBABLE.
Judge Benedict o the Criminal branch Of the United
States Circlt Court, rendered decision Yesterday in
favor of William = Warner and j. Henry Work on the
demurrer argued hy their counsel against the i"dct-
mcnt charging them with aiding Ferdinand Ward in
III, 'misappicluon Of the funds of the Marilc
National Eank of which Ward was a director. Ward
gave to Warner one or more checks on the day before
the suspension of the bank and at time when he had
no money to meet ITEM The checks aid, and it
is cl lrgcd that Ward m,applicd the money OF the
bank in violation OF the National BankinS law.
Warner and Work were arrested and held II $50 90
bail each which furnished
United States District Attorney Dorshcimcr caused
their indictment and the argument for the demurrer
a few weeks ago Mr. Dorshcimer aud Elihu RootI ap-
peared for the Government and GtOrge Bliss and
James G. Carter for Warner and Work rhc printed
briefs of the counsel delayed and Mr.. Roots last
brici given to Judge Benedict on Friday. de-
cisi1n was not expected for scv6r raj days. but Judge
Benedict had been convinced the oral argument
that fatai error existed in the Indictment lie may
have been led early decision also by the fact that
Grand Jury. before which the case may be taken
if indictment j. to he found Will tomorrow.
The full decision is ; follows:
The brief in behalf of the Government submitted 10
yesterday fails to pOiut ont any way of escape from
the difficulty with the indictment its present form
which apparent at the time of the oral argument.
That difficulty is that the indictment contains
aycrment of conversion by Ward of the money of The
association which the indictment states paid by
the association to Warner. The inc ictmcnt seeks Ia
charge the defendants Warner and Work aiders and
ahctters OF Ferdinand Ward IN wul mi-ap-
Rication by. Ward of the money of the Marine
Bank, of which association Ward at the time
director An indictment of this character as all con-
cede, to he good against the defendants Warner and
Yts. lTpOt nt a.
money Ui the association committed by Ward.
The Supreme Court of the United States in the United
states against Bntton lO' ); p G66 las eNprr>Iy
declared conversion of the funds of the association by
the party charged 70 he necessary ingredient OF the
offence of misapplying the funds by officer OF the
association According 10 this decision an essential
tact 10 be aycTcd and proved III this is the
version by Ward of the moneys in question. This
essential iac the Indictment omits 10 state There il
a statement that Ward Intended that he and Warner
and Work should convert to their own u-e the money
in question but there settlement that such a
version 10y Ward was thereafter effected
This omission under the decision referred 10. must
be held fatal and for this therefore thcrO must
be Judgment fol the defendants Warner and Wor,
upon the demurrer. The argument made at the hear
ing upon the demurrer not confined To matters OF
iorr and omissions capable OF correcid but assumed
wider scope and renders it proper for me al TN. time
to say for the information of counsel that do not
assent 10 the proposition that no offence against The
laws of the United States committed hy director OF
National Bank, who knowing that hc has no money
to his credit Ia ne bank and no uGht Ia draw money
from the bank 10 which he has no night 10y means of
ms oycrdraft made with intent to dciraud and con-
vers tie same to bis use in fraud of the bank.
Iu my opinion the -tatutc J. not confined 10 acts done
10y officer of the bank III The cNcTc 80 OF power
acquired 10y means of his Office. lis intention wa- To-
punI>h certain acts which IL describes, when such acts
done 10y holding the relation to bank of pres
idcut. director. caahicr letter clerk agent Among
the acts rated j. the act of misappyiug money
Of the association and as a couvc -ion by
director. of money of the bank ui which he has Iurcd
the possession nr control hy OF hi oycrdraIt
drawn without night and Hih the intent 10 dciIaud.
would constitute . mi-apUlicltlou ot money Of the
ASSOCIATION within the meaning ot the statute.
Such acts woud moreover involve violation Of duty
the part OF the director lie present ind ctm'nt
already pointed ndt does not state Uc and tor
The reasons given cannot lc upheld. What has been
aid apple, we'll 10 the counts for Abstraction
IN" counts for mi-appcl'inn. ! see nothing IN tlr
point made that each ut IN the indictment l. really
two counts.
L,t there be judgment tor the defendant. upon the
demurrer.
Mr. Dor,helmcg has been ont OF town for two or three
days and not at his o'cc Yesterday after the dcc
sion made known General B B Foster, the assist
ant IN charge ofthc criminal department Of the United
states District Attorneys on1cc. SAID:
Tho decision Is against the Government tcchnoa'
point. Il charged that Ward drew checks With ah
!utcut to convert the money of the bank. judge
Bcuedlct holds tnat the Indictment should alsO have
cscd that he lid actually convert The money TO his
use II hc used II To pay any debts or liS'ton, IT
which Judge Benedict decides should hc contained
tho Indictment could easily ho inserted IA new IN
th" opinion j. 10 favor ~ ne Hovcrumcnt0 position
The most seriously contested point va, whether
an act dome hy director not actinS IA
under tho United states law. Judge benedict virtually
holds that such an ACT u- /, alleged against Wrd II De-
converted the luOuJ To ns own u'!H punishable II II l.
proven ON iral Iprr-uu' that new indictment viii
be found. as the tochuIcai difficulty can be overcome