The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1893-06-24
FOR. A NEW TRIAL
Carroll Cook in Behalf of
j. w. Flood.
BARNES ON PERVERTED LAW
Judge SeawelI Is Accused of Making
Various Errors in His Charge
to the Jury.

Attorney Carroll Cook drank deep
draughts OF water, sucked many lines and
argued IN his usual persuasive manner
during the whole of yesterday aftern Don in
MS endeavor to show cause why new
trial should be granted to John w. Flood,
ex-cashier of the Donohoe-Kelly Bank.
When court assembled the same faces
we're there which were noticed during the
days of the famous trial. Foote, of course,
was absent, but Carroll Cook, Charles
Heggerty and William c. Chapman were
all there ready to do battle in Floods
behalf.
The prosecution was represented. as be-
fore, by General Barnes, Attorney Galpin
and Assistant District Attorney Hinkle.
Carroll Cook did not preface his argu-
ment with any sensational charges or de-
nunciations. He simply remarked that
the circumstances surrounding the case
distinguished it from the ordinary crim-
nal trial in many ways; first, by reason of
the large amount alleged to have been en-
bezzled; second. by reason of the standing
OF The parties connected with the institu-
ton, and thirdly, by reason of the spotless
reputation Of the defendant prior to this
trial.
Counsel also drew close attention to the
fact that Foote, with all his learning and
ability, and after careful preparation and
study of the legal questions involved. gave
II as his opinion tn at the evidence was not
sufficient in law to justify conviction.
and on that ground he advised his client to
offer no defense. but simply submit the
case on the evidence offered by the prose-
cution, aud that not anticipating the
Judges charge to be of such direct
nature as 1t proved to be, Mr.. Foote and
all his fir RDlc nft cd at
the unexpected verdict.
1T is easy for General Barnes 10 say. as
he will say" said Cook, that il there Is
anything wrong the Supreme Cour: Ia the
place to decide the question. But the re-
suits are too serious to be brushed away
like this. For we maintain thai the eyi-
dence offered by the prosecution in this
case does not fasten the crime of EN- 5eZzle-
meut on Mr.. Flood"
Then Cook went on to argue that there
was no evidence In the record that the old
firm of Donohoe. Kelly & Co. ever went
out of business, or that Floods position as
cashier and paying teller in that old firm
ever ceased on the Incorporation of the
banking company. Then again there was
TO evidence of the incorporation of this
bank other than the certificate of incor-
pOration. That was not considered suffi-
Gent evidence In law, as the proper proof
wonld be the production OF articles of in
CORPORATION, which in this case did not
exist.
Then Floods responsible position was
touched upon, and counsel rem ded the
court that Flood had a perfect right to pay
money over the counter and to allow over
drafts.
That being So" argued Cook. "what
evidence have they in proof of any EN-
bezzIement? Why, they offer book on
which. by the way, is printed, Don oboe,
Kelly & CO.. What does this book show
Why, it shows that as paying teller Of the
bank Flood had certain balance IN the
morningI But there is nc proof to show
this balance TO be correct.
MY client is charged with embeZZing
S164000 between February Is and April f.
1898. Very well, take this book. Look at
February 10. You will find by adding TO
The balance in hand the receipts of the
previous day and deducting the ezpendi-
iure that there Is shortage of 1900,
and so the shortage remains throughout
the entire period MP 10 April f. So there
is no proof that Flood had the money in
his possession on the III orninE OF February
Is, and that he had had this money at any
time in ten years before that
Cook went on TO show that the finance
committee confessed to never having
clunted the money, and said that no one
could prove when the S164, 900 came, If
ever, into Floods possession.
But when the attorney came to the con-
fessOn which Flood is said to have made
before the directors when first taxed with
the crime he weakened considerably. He
made a very poor attempt 10 pull TO pieces
the evidence on this point. Cook tried to
make out that none of the witnesses re-
membered the exact conversation as It
took place, but the only point he made was
when he reminded the court that Donohoe
senior asked the questions, that Flood
answers were directed to him. and that
Mr.. Donohoe was never called as wit
ness.
However, in few moments the real
points on which Cook bases his motion
came out, and with them came citations
from a formidable array of law-books
scattered on the ia BILE in front OF him. In
short. Cooks argument appeared TO rest
ON these grounds: First, that there was
no proof when the money was taken-that
is, whether during the existence of the old
firm or since its Incorporation; second.
that no confession that Flood made could
be taken as evidence without the corpus
deficit being sufficiently proven. and third,
that the Judge had erred in his charge to
the jury.
1t was while Cook was endeavoring 70
point ont the Judges first error, in that he
had spoken of possession or control and
not of ''care or custody" in charging the
jury, and while he was quoting from his
miniature law library. that General Barnes
interfere and suggested an adjournment.
81 desire to go TO Leland Stanford
funeral tomorrow" said Barnes, $50 les
adjourn till Monday"
''I'lI sit tonight if you WISH" said
Judge SeawelL
Not l." replied Barnes. 81 wouldn't
come here at night, unless / had to, for the
building; and besides, to listen 10 all this
peryersion of law at night would prevent
me sleeping. Let's sit Sunday. between
church hours"
Finally an adjournment until Tuesday
morning was agreed upon.