Los Angeles herald., 1892-06-27
SOME NOVEL Law POINTS.
They are Brought out in the Trial Of
Gibbs.

They are Brought out in the Trial OF
Gibbs.
In the trial of the Gibbs case, which
was decided yesterday by the acquittal
of the defendant. some rather novel
points of law were presented. The in
dictment upon which Gibbs was tried
charged him with receiving from Her
man Zuber "the sum of $1,000, lawful
money Of the United States of America,
of the value of $1,000, and of the proper
ty and moneys OF him, the said Herman
Zuber (the description of said $1,000 be-
ing to the grand jurors aforesaid IN
known"
To substantiate the charge, 4 check
drawn by Zuber on the First National
bank was offered in evidence, to which
the defendant objected on the ground Of
variance between the allegation in the
indictment and the evidence proposed.
The court overruled the objection on
the ground that the check was mere
medium for the procurement of money,
the defendant reserving an exception TO
the courts ruling. One of the tellers
of the bank was called to the witness
stand, and testified that he knew from
the stamp upon the check it was paid,
though he could not tell to whom, and
had no personal recollection Whatever
in regard to the matter. The state hav-
ing alleged that the defendant received
"lawful money of the United States,"
itwas necessarythat the allegation should
be proven, though It may not have
been requisite that the allegation should
have been made 90 specific. Proof that
the defendant received bank notes
would not sustain the allegation that
he received "lawful money" This doc
trine is plainly laid down in Hamilton
vs. The State, go Ind, in which the
court says: The notes of the national
banks furnish large portion of the cir
culating medium; and, for aught that
appears, the money in question may
have been the. money OF such banks.
The notes of the national banks are in
no sense money of the United States.
The state, having alleged that the mon
ey stolen was the money of the United
States, was bound to prove the allega-
ton as made" As the teller had no
recollection Of the transaction, it was
impossible to tell whether the check
was paid in gold, silver or bank notes.
Furthermore. even if it could be shown
that the check was paid in lawful money
of the United States, there still remains
the difficulty of showing that the lawful
money SO received was "of the property
and moneys of him the said Herman
Zuber," as charged. Zuber being q
creditor Of the bank, and it not appear
ing that he had any special deposit
therein, the money used in the payment
of the check could not have been the
property Of Zuber, for it evidently was
the property of the bank. In the case
Of Lancaster We. The State, 8 Tex. App,
the court say: I'VE are Of the opinion
that proof of having obtained cheeks or
orders on bank for money will not
support an allegation charging theft Of
lawful money of the United States."
There is no authority in this state upon
this particular point, though in COM
mon with other states, the authorities
here are quite uniform to the effect that
where parties are charged with the lar
ceny of property, the proof must strictly
conform to the particular class Of prop
erty mentioned in the indictment or in
formation.