Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1890-12-19
JUDGE PAULLs OPINION.

on the motion for new trlal IN the
Seybold CASE,
JUDGE PAULLs OPINION.
Judge Paull's opinion was substantially as
follows: The defendant asks for new trial up.
on the following grounds: lst. After discovered
evidence. In the State vs.. Betsall, Il was held TO
authorize the granting OF new trial on the
ground Of after discovered evidence four things
are necessary: First. The evidence must have
been discovered since the former trial. Second.
II must be such reasonable diligence on tsr
part OF the party asking Il could not have ,"-
cured at the former trial. Third, II must De
material in its objects and not merely cumula-
tive. corroboratiye or collateral. Fourth, Il
must b. such as ought TO produce on another
trial an opposite result on the merits.
None Of the afidayits dled by the defendant
in support OF his motion came within the rules
announced. portion OF the affidavit Of Joseph
SeybOlG related 10 matters A. 10 which he was
fully examined when on the witness stand; and
the other portion that related 10 the rsar do 0f
the Bank OF Wheeling building could easily have
been discovered by the defendents. The IN
dictneut charged the defendant with the en-
bezzlement OF 4 certain sum oi money from the
Bank of Wheeling ON the 10Th day Of April,
1889 The defendant for several years prior 20
that date had been clerk IN that bank Con
seauently both the defendant and his father
were perfectly familiar with The arrangement
OF the bank doors and the customs Of the bank
officers and clerks with respect 10 closing and
barring them. So that no testimony on that
subject could be a surprise 10 him. Besides he
was fully Informed As 20 the pufport Of Michael
Freismuth's testimony ami "a that time Joseph
Seybold was within easy access aud could read
ily have been consulted.
As 20 the afidayits Of J. W COnnor. William
Seyboid and G. W. sanders the Court said that
the evidence contained in these affidavit, would
b. wholly inadmissible, even II a new rial We're
granted the defendant, as that evidence merely
a.. tfr NHsfa
State 10 contradict the defendant himself. The
defendant claimed there Was no record OF tia
ndi 'iment. This question was raised aud lie.
cidrd on the motion TO quash. The Court had
given the matter further consideration. how
ever, but was unable 70 come To any other con
clusi-n than the one heretofore announced.
The defendant claimed that there was no
proof Of any ENLIGHTENMENT, before the jury
The indictment charged that the defendant on
the 10Th day or April. 1899. iraudulenuy and
feloniouslv embeZzled sums belonging 10 the
bank The Court discussed the legal phase of
this question at some length, defining the term
embezzement. aud conc udcd the point by stat
ing that IN this case the evidenc" showed con
clusiyely that the defendant. by virtue of his
place aud employment, Was entrusted with a
kew 10 the front door Oi the bank building and
with the combination of the vault IN which the
funds alleged TO have been embezzed. were
kept and that he had access 10 this vault. Tor
some purposes 40 least. II. therefore, under
charged in the Indictment Or any portion
thereof. and irauduleutly and teloniously con.
verted them % his own Use (and the verdict Of
the Jury j. conclusive Of that fact. he Is clearly
guilty 0i embezzlement under the statute.
The defendant claimed that the verdict should
D 10 set aside because Of the refusal OF the Court
70 instruct the jury that III any juror on tue
panel was not satisfied beyond reasonable
doubt OF the guilt Of the defendant. Il was his
duty to Withhold his assent 90 "a verdict OF
guilty" The Court then quoted NJ some length
from authorities sustaining hls ruling on THIS
point. and decided that the instruction had
been properly refused. The omission of the
words beyond reasonable doubt was not an
error. nor was II error FOR the Court To dlrec'
the Sheriff 10 summons by-standers for the pur
pose Of filing up the panels The motion FOR
new trial and arrest Of judgment, the Court con
cluded. must be oyerruled.
After Judge PAUL had finished the
reading Seybold stood up with bis coun-
sci, Col. Arnett.
Have you anything 10 say why sem
tence should not be pronounced" asked
the Judge.
NO, sir" replied the prisoner.
Il then sentence you 10 term Of two
years and six months in the peniten-
tiary."
Seybold seemed little moved by the
sentence. At the request Of Col. Ar
nett the Judge granted suspension OF
fifty days in order to take the case TO
the Supreme Court OF Appeals.