New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1891-06-25
THE DIRECTORS ACQUITTED.
ONE FREED BY THE JURY, THE OTHERS BY
THE JUDGE.
PRESIDENT cLARKs CASE WAS THE ONLY ONE
SENT TO TIE JURY-JUDGE VAN BRUNT
TOOK THE TUNNEL ACCIDENT OUT on
THE CASE BECAUSE THE TRAIN
THAT WAS HEATED BY STOVES

TOOK THE TUNNEL ACCIDENT OUT OF
THE CASE BECAUSE THE TRAIN
THAT WAS HEATED BY STOVES
CARRIED no PASSENGERS.
The case OF the people Of the State Of Nev~
York against Chauncey VI. Depew, z. II. Trow.
bridge, William ID. Bishop, Nathaniel Wheeler.
Henry C. Robinson, Edward W. Reed, Joseph
Park, Henry S. Lee, William Rockefeller and
Levcrett Brainard, directors Of the Ncw-York,
New-IIaven and Hartford Railroad, for violation
of the Anti-Car Stove Act, did not reach the de
alterations of the jury. Presiding Justice Van
Brunt, in the Court Of Oyer and Terminer yester
day "advsed"-which under the improved code,
is equivalent to instructed"-the jury TO acquit
the directors. The Judge held that the District
Attorney had not produced against them suiIcien,
evidence TO go TO the jury. lie left it TO tlD
jury, however, to decide the case of Charlie
Y. Clark, president Of the company and after fou
hours and forty-ivc minutes of deliberation ant
dinner, the jury decided that Mr.. Clark was moi
guilty Wilson G.. Hunt, the indicted director
who was too sick to plead, will not be tried The
Indictment against him was dropped
The Judge not only upheld the position
of John NJ Bowers Thomas Thacher and the other
able counsel for the defence, that the prosecution
had failed to make case against the directors
but in his charge on the of President Clark
lie ASSOCIATED entirely the trial from the tunue.
accident lie said not only that the tunnel ao
cident had nothing TO do with this case. but thai
the wrecked train not running in violation
of the statute, as it not passenger train.
and tie company had right to use stoves for
heating it. Thus the deadly tunnel sank out
Of sight as an element in the trial, and the case
resolved itself into one of alleged misdcmeanor
that could have been tried more than two years
ago.
AS soon as Presiding Justice Van Brunt took
his seat, Captain Lynch, the inventor Of
which he claims is accidentproof. arose and
demanded the attention of the court He had
finished the first sentence of his speech when he
was quietly led out of the room. Then William
c.. Baker, the inventor of the Baker heater, took
the stand and introduced correspondence be-
tween himself and President Clark and Vice Presi:
dent Reed in regard to the Baker heater. Frank
f. Shaw, a steam.heating man who had talks
with Mr.. Clark-theSe steam-heating people must
have nearly bothered the life out of Clark-test.
fed Among other things that Mr.. Clark said he
was afraid of steam"
At this point Mr.. Bowers asked the court to
instruct the jury to acqut Leverett Brainard.
Thomas Thacher made an able argument in support
Of the motion. lie said in part
Tic defendants the individuals, not the corpora
ton We may eoncede for the purpose Of argument
IS not the Board Of Directors board In their joint
capacity tha; IS on trial i is the indiviana mem mem;
be- proved upon HIM lie IS net responsible for ,s INC
stage not because we deem that the case as against
any Of the defendants Is substantially different
because to tho proper understanding Of tie arguments
which 10 be indicated by the course CT the
Ua eha against Leyeret pa raina Is crime @
committed by him Is criminal intent and criminal
intent It which finds It's elimination through It's act
through Others But The crmethe criminal IN nteat
be his own act. The charge is not a question OF
whether tht & deeIGsnt G i6 has ed IN IN the Ss a.
director, or to the stockholders or the public 1t
s Sny w'r Of the ane has ne
There are two ways IN theory In which he may
aiding and abetting, But Your Honor, the authori
ties distinct and the reason and logic Of the case
there must be action 1t cannot result from mere
nactlon. The broadest point Of view given Of this
did nothing.S if active participation be necessary.
"you did nothing" is not active participation
When Mr.. Thacher sat down, Judge Van Brlnt
asked if any similar motions desired for any
other of the defendants Mr.. Bowers promptly
made a motion for instructions to acqut on be-
half of each and every one Of the other defend
ants
Mr.. Nicoll opposed the motions vigorously and
for his cause adduced many authorities " If the
he sad under a general authority from them
and so heated and by their knowl-
edge. why, that constitutes participation and is
equivalent to actual participation. And inaction
by principal whose duty il is and who has
power to act, and the suffering his agent to violate
the statute, is equivalent TO affirmative action on
his part
Justice Van Brunt's ruling was in substance,
as follows;
Notwithstanding the ingenious argument Of the Dis
trct Attorney, | am Of the same opinion that | was
at the time OF my decision the demurrer, and hold
that right in the assertions made In that opin
ion that no one can vicariouSly commit crime. For
bcr Of have been cited in the opinion Of the
District Attorney the proposition has been successfully
deaon Of these cases with the execution ''t Of oDa
and that one was before me when gave my opinion,
noGnced. The which have been cited are those
where principal has been held liable crminaIy for
act Of an agent which act Of agent has been
done within the scope Of his authority and there
o arTs 3G ies G of s,ss Of tn%i EDd principal
agent acting pursuant to authority within the scope
Of the powers RS conferred BY The the principal and there
yieariou,y suffering but suffering for his own act Now
is entirely different. They are not principals The New
York and New-Iaven Railroad is the principal The d.
rccors but the servants and agents OF the road The
authority which the New.Yori and New-Iiaven road
conferred upon them are their cOservans to speak,
and the doctrine Of the relation Of responsibility TO
superior must apply II the New York and New-IIaven
road were on trial this indictment then The prln-
cpes which have been stated by the District Attorney
would have been entirely applicable, because a cor
poraton only act through It's agents and when il
acts through them corporation is liable for the action
OF its servants.
Therefore it does not seem TO me that these case
or that principle have any application to The case in
voved but was int!moted In the opinion which
gave upon the demurrer IL was my opinion that ai
far as the employees Of the rOad-and Include withIl
that class the dIccors-paItcipated In the Violation
Of this statute they were liable and when such mar
tiepation was shown and any evidence given DO
fore the Jury from which such participation might be
Inferred, the question would be for the Jury 10 do
termine whether the had been made out OF viola,
ton by. them OF the statutes.
The proposition that these directors are liable alSe
makes liable the subordnates and every suboriinaU
who participated In the violation OF this law was IabL
70 indictment. In my Judgment.
Then that brngs me to tie relation OF these Director
individuals with this corporation. The mere fct
their being directors Is OF no importance whatever
They cannot be held directors they indctea