The morning call., 1891-01-09
TEN AGAINST TWO.
The Jury Renders a Verdict in
Kerr's Favor.
An Explicit Argument Made by Counsel for
the Plaintiff and an Impartial
Charge by the Court

against Jdllles heTT. 10 recover S20,UDD
on an assigned claim for moneys not ac-
counted for by the defendant. was concluded
in Judge Hunts court yesterday. By
vote of ten to two the jury rendered YER
dict in favor of the defendant.
When the trial was resumed at 10 o'clock
Mr.. Crothers of counsel for the plaintiff
0 id that during the cross-examination of
the plaintiff the previous day he had sub
mitted bundle of piperi. Many of these
alluded to period previous to 1884, and
also to time while the defendant was in
New York. He would therefore ask that
those naperS be excluded from the record
Their ing no objection it was so ordered.
Thoma; f. Boyle was recalled by the de-
Tense, and identified copies of TIE CALI. of
May 10Th and 18th. 1887. Attorney Nc
Enerney said that he offered the flies of the
paper in evidence as an admission against
the ulaintiff.
Mr.. Belcher objected to the introduction
of the files. as the papers were not pub
liShed during the year to which the pro-
ceeding related.
The Court admitted the file dated May 10,
1887, and Attorney McEnerney read the
headlines over The CALLS report of the
proceedings in the libel suit of George K
Fitch against NJ. II. de Young, one of which
meanings reau: Inc business manager of
The CALL gives testimony"
The Court sustained an objection to the
introduction of copy of THE CALL of May
II, 1887. on the ground that the article bear
ing on the same libel suit, which the de-
Tense desired to read to the jury, had no
bearing on the case before the court.
The witness then testified in rebuttal for
the plaintiff.
AN INTEREST," JUROR.
An interested juror asked: Was it your
business to see that the initial K was
made after the entries of these moneys?"
The clerks in the outside Office were
satisfied the amounts we turned in were
correct. We balanced our own cash as we
turned it in. 1t was not strange that the
initial K appeared after an entry on one
day and not on another. Once the counter
cash balanced the clerks had nothing more
to d. with it, They did not know what was
gong on behnl the partition IN the rear
Office"
During his Grass examination Mr. Boyle
was asked: " Have you any means Of
knowing how mucb money you turned over
to KeTr?"
Yes; can tell on some days"
Perhaps" said Judge Hunt, she can
say approximately how much money he
turned over to White and how macn to the
defendant
. turned over most of the money!" con-
tinued the witness. "to Kerr. He was
away great deal. but the tia boxes were
left on his desk L can state that Kerr re.
ceived greater portion of the money. Kerr
or W hite would come in during the day and
open the boxes"
IF it should appear in testimony that a
certain amount OF money was received dur
ing certain period, could you tell how
much was received by White and how much
by kerr?"
No, SIr."
Don't You know the money was turned
over to Kerr as cashler?" asked Mr..
Crothers
The questiorzwTs objected to, on the
ground that 1t was not proper rebuttal, and
the objection was sustained.
FOR THE Defense.
For the defense, Howard Ravens, one of
the managers of DOnOhOe, Kelly 81 Co.'s
bank, was called. Handed bundle of
checks, he said the Endorsement on them had
been made by John White. He had always
known White as cashier of THE MORNING
| CALL.
In answer to cross-questions, Mr.. Ravens
! SAID he did not know kerr's signature, but
| thought that White had introduced Kerr t.
| him once as cashier. lie did not know
| much about the checks drawn in favor of
| IHE CALL or that the signature of Kerr as
cashier was put on the banks books. From
June. 1873, to February q, 1889, he could
The account of HE CALL Company was
not in any way mixed up with those OF
Messrs. Pickering aud Fitch. Separate and
distinct accounts were kept.
The defense offered copy Of THE CALL
of August II, 1888 but il was objected to
because the editorial sought to be introduced
in evidence was wholly immaterial and
not relevant to the issues in the case. The
objection was sustained.
MIR. Boyle was again called to the witness
stand and testified that from eleven to forty
checks day hid been received and indorsed
GALL Company, per -, cashier" These
Endorsements were generally made by Kerr
as cashier
Walter Fitz George, the expert accountant
was recalled, and as lie had not completed
the computation of entries made by Kerr
from April 2, 1884, TO June s. 1882 he was
gwen until o'clock to make the statement
a recess was taken untii that hour, it being
understood that after the figures were sub
mllted each side would be allowed TO make
arguments Of one and a half hours dura-
tlon.
Upon the reconvening of the court Mr..
CrOlnerS said no more testimony would be
introduced, because the plaintiff would ask
no recovery beyond March Z, 1887.
MIR. CRoTHERs' ARGUMENT.
MIR. Crothers made an explicit opening ar
gument, prefacing 1t by saying he would
conhne himself to facts and figures and the
evidence proving them.
In the opening statement" he said. az
stated we would prove that from June l.
1878, to June S, 1889, the defendant was the
accountant cashier and treasurer Of The
MORNING CALL; that he continued to per
form the duties vi such accountant, cashier
and treasurer during the period mentioned.
and that on the last mentioned date when
his services In that capacity termin ated he
was short in his cash in the sum of S48. 600
what was 1t incumbent on us TO prove?
Not that defendant was book keeper. al
that tact haf
his own books, ALMOST wholly in his own
handwriting, established the amount of his
defalcatiOn. The vital point in the case is
the fact that defendant was the cashier and
treasurer Of THE CALL for ten years. the
custodian and keeper of the cash and the
guardian OF its finances. On this ground
we hold him responsible. What is
the evidence adducedP Mr.. Pickering
testified that Kerr's duties were to
Keep the books, receive all cash
and make the disbursements Mr.. Fitch's
testimony is to the same effect: He was
the man having possession of tine cash and
Keeping the accounts MIR. Boyle also tes-
tined that Kerr was accountant and cashier
for the period mentioned, and Mr.. Stock
gave in evidence that defendant was cashier
| and book-keeper of THE CALL for ten
years or more. Defendant himself has ad-
United on the stand that from 1879 to 1890
his duties were to receive the moneys, pay
the salaries, etc., to pay over to the proprie-
tors the balance, but denies that he was
cashier. If these are not the duties of a
cashier, what are? In addition TO this,
there is document in evidence, over Kerr's
own signature, naming him cashier, and
there is ON file in Washington an affidavit
setting forth that defendant was treasurer
OF HE MORNING CALL, signed by defend
ant himself and Messrs. Fitch and Picker
ing, and sworn to before Notary Public.
The collectors and counter clerks testified
that they always delivered the cash to Mr..
Kerr when he was in. and when he was alb
sent to Mr.. White. On this ground de-
PENDANT seeks to avoid responsibility.
He says White received part of the cash,
therefore he should not be held responsible
He admits that when he was absent White
received the money for him and with his
consent and put it in the safe. Is he not
responsible? Charged with the responsible