The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1890-10-11
A VERDICT OF NOT GUILTY RENDERED.
BlgeIow Tried Yesterday Charged
With Embezzlement.
HIS Counsel Makes Objection TO the
Form Of the Indictment.
The Evidence Brought Out on the
hearing.

mall, was arraigned again yesterday on an
Indictment, charging him with embez-
zling a certain package Of merchandise adj
dressed to certain person in Rockport from
the mail car, on the fifteenth day of last
July. Hon. Isaac W. Dyer. the district at
torney, conducted the case for the govern
ment, and Hon. Orvile ID. Baker Of Augusta
was counsel for the defense.
George w. Jones was the first witness.
He testified that he was running as postal
clerk on the Boston and Bangor route July
10. bound east, and named his associates in
the car, A. w. BIgelow, w. w. Bigelow, Mr..
Jones, Thompson and others. Mr.. Dyer
asked the witness If he had not been direct
ed to watch Bigeiow. At this point Mr.
Baker interposed an objection to the intro
duction of any evidence under the indict-
ment as drawn. He argued at considerable
length to the effect that the indictment was
vague and indefinite. 1t alleged that the de-
fendant had in his possession certain pack
age Of merchandise directed to Rockport,
Maine, but did not describe the package or
its contents, nor did it show that the pack
age was not Bigelow's own property, that 1t
was addressed to him. He cited authorities
in support Of his position. showing that the
courts had repeatedly decided in criminal
cases that the greatest particularly was nee
essary in Indictment both for larceny and
embezzlement.
Mr.. Dyer, in his reply, stated that there
was difference between the nature of the
indictments for larceny and for embezzle-
ment The former must specifically charge
that the property taken belonged to someone
other than the person taking it, while in the
| case of embezzlement no question as to own
| ership need be raised. He cited authorities
| to show that a line of decisions had been
| filed, covering this particular form of crime,
| embezzling mail matter, all tending to show
that the crime lay in the breach of trust
rather than in the wrongful conversion of
property belonging to another.
The objection was overruled and the exam
| ination of Mr.. Noyes continued. He testi-
fed that he saw Bigelow soon after the train
left Portland take from the Vassalboro box
| pasteboard roll. which he. Noyes, had pre-
viously looked at and seen was addressed to
some person unknown in Rockport MaiDe.
He took the roll to the further end of
the car. and appeared to be writing upon it,
after which he threw 1t into the Clinton
pouch Witness afterward looked at the
roll again and saw that it was addressed to
w. w. Bigelow, Clinton. He reported the
facts to Col Barrio and Mr. Pendleton, pos
tai inspectors, who came into the car at Ben
ton. He started to tell what took place, but
was stopped by Mr.. Baker, who desired a
ruling of the court excluding this conyersa
tlon because. he said, 1t might prove to be
matter not admissible under the rule making
1t permissible for witnesses to omit testimo-
ny that might criulinate themselves.
The court suspended the objection, and
Mr.. Baker commenced the cross-examina-
tlon. Mr.. Noyes said that he had not seen
the contents of the roll. never having taken
the paper out, but he identified it by certain
marks which he made on. it. Mr.. Baker
pulled the paper out and unrolled it, reveal
ing the Illustrated American, weekly pa
per published in New York city.
Mr.. John Il. Barrio, Of Meriden, Conn,
postal inspector, was the next witness He
described his action ON the 10Th of July. He
said that he and Inspector Pendleton first
went into the mail car at Benton, took the
Clinton pouch from the rack and dumped
the contents on the table. Among other mat
ter he found pasteboard roll addressed to
W. w. Blgelow, Clinton. Maine. This was
what he was looking for. lie turned to Big
Glow and asked - II object" said Mr.. Ba-
ker at this point. He asked permission to
ask the witness q question. This being
granted, he showed him the roll and asked
If he identified it as the same which he took
from the Clinton mail on the car Mr.. Bar
rios replied that he did. Mr.. Baker then OBJ
iactad IN fnrthar nroeaodino4 an tho ryraurd
Of variance between the subject matter of
the Indictment and that of the evidence. 1t
was charged that Bigelow took a package of
merchandise from the mail, and that which
the government had produced and identified
was a newspaper. The penalty for taking
a newspaper being specifically fixed by sec.
tion 5471 Of the statutes at a fine Of $50
while the penalty for taking merchandise
was fine of $500 and Imprisonment for one
year in the state prison. He said he thought
that the government was dealing very un-
justly with the prisoner, In indcting him for
a grave offence, carrying with it the infamy
OF incarceration In the state prison, while all
of their evidence tended to show a compare
lively trivial offence, recognized as such by
the law, and made punishable by a small
fine only. Judge Webb ruled that he saw no
ground for objection. He said that while no
doubt 1t was true that the statutes provided
disc, ana another as newspapers, yet there
was no doubt but that newspapers were in
cluded in the general term, merchandise, as
much as roots, bulbs, dress patterns, news
paper cuts, and other articles which are also
specially mentioned by name in the postal
statutes. He said that the examination
might proceed, the objection being reserved
for consideration later, If the lfacts warrant
ed it.
Mr.. Barrio's examination continued. He
said he asked Bigelow whose writing the
address on the roll was. Mime" answered
Bigelow.
nixey." term used by postal clerks to des-
| ignate articles that bear unintellgible ad-
dresses, or no address at all. II know bet
| ter than that. That roll bore an address
for EehgS and yTu haTe S sTaSea ne it es S9a
| you did, know it." No re2ly Asked the
other clerks in the car If they had handled
it. Mr.. Noyes said he had and that 1t bore
then Rockport address. Pointed
scratched place to Bigelow who weakened
and admitted scratching the address of
| with pocket knife and substituting his own.
Witness said that Inspector Pendeton then
said, "You made mistake when you sald L
it off," ayes" "And you lied about it?"
"Yes." "Then you stole itP,' yes" Wit
mass then described the marks of identfca-
tion put on by himself and Mr.. Pendleton
and Mr.. Noyes.
r
considerable length, principally in regard TO
the nature of his duties, but nothing new
Charles IT, Pendleton, postal inspector,
was the next witness. He told substantial
" the same story that Mr.. Barrio did,
dwelling on the conversation with Bigelow,
and describing the marks which he placed
on the paper
The court asked what was meant by the
term nixey, and Mr.. Pendleton gave the de-
scription already given. Mr. Dyer asked If
there were not postal regulations concern
ing the disposition Of Dixeys found In the
cars. Mr.. Baker objected. The court said
that 1t was matter of law and that it could
l. be cited in arguments, and that he should
instruct the jury in regard to 1t as a matter
of law, ana tnat Mr.. Dyer need not 20 into il
Mr. Baker asked on crOss-examinatian n
1t was not fact that newspapers freouently
slipped out Of the their wrappers. So that
they bore no address and therefore became
mikes, and that 1t was customary for clerks
70 read these and perhaps to carry them
nome. Inc court refused to allow evidence
TO appear, to the effect that clerks ever car
Iled nixeys of, because it was an illegal
practlct and could not be introduced to con-
luse the jury. Under cross. examination the
witness reiterated the conversation with
Blgelow in which Bigelow practically
eliminated himself.
Mr. George w. Noyes, recalled, repeated
thn 81 l.aN..v