The morning call., 1891-12-05

=
ship Heretofore, TO wilt: before the I'd DAY OF
November 1882, existing between said George
X. Fitch, Loring Pickering and one James w.
Smont0n. who died on said I'd OF November,
1882, aud was throughout the same period. from
the I'd day OF November, 1882. 10 the 22d day OF
February, 1890, so employed as such cierk,
agent aud servant by said surviving Iartners
who continued to carry on The business thereto
fore carried on by said eo-partnership. under the
said name OF the san Francisco Call Company.
And by virtue OF and In the course OF his said
employment such clerk, agent and servant
aforesaid there came into aud was ID the care,
custody and control Of him. the said John White,
the sum OF SOS 600 in lawful money OF the
United States OF The value of 900 In lawful
money of the United States, the personal prop
eGty OF said George X Fitch and L0r-
said. and doing business as such surviving
partners under The name of The San Francisco
Call Company, which said money had been re-
ceiyed by said John White for aud on behalf OF
said George X. Fitch and LoriDg Pickering,
doing business as aforesaid and In the trans
action Of said business. And he the said John
White, after the said money. 10 wit, The SAID
sum OF Sos. 600 had come into his possession,
care, custody and control as such clerk. agent
and servant OF said George X. Fitch and Lorlng
Pickering, doing business AS Aforesaid, ana III
the transaction OF their said business as afore-
said, did at the said city and county OF San
Francisco on or about the 22d day of February,
1890, and before the hnding OF this Indictment,
wifuily, unlawfuy. feloniously and ffaudu-
lentIy. embeZZie, convert and appropriate the
said sum OF $4,000. and the whole thereof 20
his own use while he, said John White. had said
money IN his possession and under his control as
such clerk, agent and servant aforesaid. contrary
TO the due and lawful execution OF his employ
ment and trust rs such clerS, agent ana servant
Aforesaid.
To this charge the defendant on his arraign-
ment pleaded not guilty.
Our statute declares that ENLIGHTENMENT is the
fraudulent approximation OF money by person
10 whom 1t has been entrusted.
Every clerk, agent or servant OF any person
who ffauduiently appropriates 10 his own
WHICH
into his control or care by virtue OF his employ
ment as such clerk, agent or servant is guilty OF
ENLIGHTENMENT.
A distinct act OF taking Is not necessary TO con-
Stitute ENLIGHTENMENT.
Whenever. prior TO any Information laid before
any magistrate charging the commission OF en-
b6ZZiement, OF whenever prior 10 the nnding OF
all Indictment by grand jury charging Sucn
oflense, tie person accused voluntarily and
actually restored or rendered restoration of the
property alleged TO have been embeZZled, or any
part thereof such fact IS not ground OF defense.
When the violation OF right admits OF both
civil and criminal remedy, the right 10 prosecute
the Que is not merged in the other
In every crime or public oflense there must
exist nuion or Joint operation OF act ana In
tent. The intent is manifested by the circum-
stances connected with the offense and the sound
mind and discretion OF The accused.
The defendant III Criminal action Is presumed
10 be innocent until The contrary is proved, and
In case of reasonable doubt as 10 whether his
guilt Is satSfac Only shown lie Is entitled TO an
aequi tai. An approved definition of reasonable
doubt is as follows: II is that state of the case
which, after an entire comparison aud consldera-
ton OF all the eydeuc, leaves the minds oil the
jurors in that condition that they cannot say
they feel an abiding conviction 10 moral GER
tainty OF the truth OF The charge.
Evidence has been introduced In this case TO
show that the defendants general reputation for
honesty and Integrity was good. In such case
as this the law allows tho defendant 10
prove his general reputation for honesty and
integrity, and such proof you must take
into consideration In determining the ques-
ton Of defendants guilt or Innocence. When
proved IL is a Circumstance tending in greater
or lesser degree 10 establish his innocence.
However. II from all OF tie evidence adduced
you are convinced beyond all reasonable doubt
that The defendant is guilty OF Tie oflense
charged against him, notwithstanding Tile EVIL
dence concerning his general reputation for hon
esty aud integrity, then, OF course, II viii be
your duty 10 fluid The defendant guilty OF the Of
tense charged agalnst him.
II you are convinced by the evidence in this
case beyond 4 reasonable doubt that The dcfen-
dRnt rec ~. ana iTauduently converted TO his
own use moneys which came INTO his care aud
custody in tbe course OF his employment. belong
ing TO George X Fitch and Lorlhg Pickering
surviving partners OF The San Francisco Call
Company While the defendant was acting as
Their servant and emptoyr' amounting TO more
than s. o. II is your duiy 10 hnd him guilty as
cha ged, eyea though you may be convinced that
agIet uIenJ not 10 crimtually prosecute the
defendant was made or attempted TO be made.
Such an agreement could not lawfully be made
In case where the amount received aud con-
Verted TO his own use exc eded $50.
You, gentlemen of the jury. are the exclusive
judges OF tie cTediblliiy OF the witnesses.
duced in this case, you are convinced beyond all
reasonable doubt the defendant Is gully OF The
otfense charged against him. 10 VIII embeZzle
ment, then II Will be incumbent upon you TO de-
clare by your verdict whether The defendant Is
guilty Of the enlightenment OF sum or an
amount exceeding $50 lawful money OF the
United States, or less sum or amount.
But If from The evidence You are not convinced
beyond All reasonable doubt Ihaf the defendant
Is gull Y of the Onen>e charged against HIN,
you Viii acquit him Uy iudlng a verdict of not
guilty.
lake the case, gentlemen OF the jury aud rem
der such verdict as tile Jaw and the evidence
Mr. Clerk. swear an officer TO take charge OF
the jury.
Clerk McComb then administered the
legal oath for Deputy Sheriff Macrett to
properly lock up and guard the jury and
precisely at 2:4 o'clock in the afternoon
the jury retired to deliberate upon a YER
diet.
At 4o'clock the jurors were still deliber-
ating and Judge Trout ordered a recess
until o'clock in the evening.
Up to o'clock the jurors who had sworn
to thy the case i'll accordance with the law
and the evidence failed to agree upon a
verdict. They were then dined in a Market
street restaurant and returned to the jury
room.
At 1920 o'clock the bell communicating
between the lury-roOm and the courtroom
rang violently, and Judge Trout ordered
that the jurors be brought into court.
Clerk McCOmb asked:
Gentlemen of the jury. have you agreed
upon d verdict ~
Foreman Bowman arose and answered,
I'VE have not"
'.Do you disagree as to questions Of fact
or law ?" asked Judge Trout
Fact, said Bowman, and there is no
possibility OF an agreement. We stand just
as we did four hours ago"
Juror klduff arose and said there had
been no Change in the ballOtting since 4 80
IN the afternoon, and that there was no
possibility Of an agreement.
Judge Trout said as there seemed to be
no possibility OF an agreement he would
discharge the jury. Then he set the case
down on the calendar for to-day, to be reset
on that date.
1t was then learned from the jurors that
upon retiring from the courtroom they cast
ballot which resulted In the vote being 6
to o. A second ballot ended in seven being
Tor ncquittal and five for conviction. The
succeeding ballots, of which there were ten,
ended IN eight voting for acquttal and four
for conviction. Two ballots cast after din
ner were with the same result and that is
why the jury failed to agree.
During the discussion that followed the
discharge OF the jury Assistant District At
torney Hinkle told Jurors Bowman and
Schamansky in very plain language what he
thought OF men who would vote for ac-
qulttal from the evidence presented.
The other jurors disappeared. but while
tne discussion was in progress Juror c. III.
Streght interpOsed and said: Gentlemen
this Is the most barefaced case of robbery
have ever seen. and l have been in Cali
fornla great many years"
SERGEANT WITTMAN'S PRESENT.
Beautiful Diamond Star Given Him by