The herald., 1893-02-01

house stood had formerly belonged to
Mrs. Syme, and the lady had given to an
officer OF the bank deed OF trust for the
same, which the official in turn, at least
so it lie alleged by the institution, trans
ferred the property to them. It was
after this that Mr.. Syme removed the
house referred to from the ground
The matter was brought to trial before
Justice Lawrence and a jury. Here the
counsel for he defendant offered de-
murrer to the complaint on the ground
that the facts did not constitute public
offense. The justice overruled the de-
murrer, when a motion to dismiss was
made with like result. The charge to
the jury was very unique, the justice
outlining to the II jurors what, in his
mind, had been proven on both sides
A verdict of guilty as charged was then
rendered.
When the matter came under the con-
sideration of Judge Smith yesterday, on
appeal, it did not take the court long to
reverse the verdict given, and present
brief epitome in the following words:
1.-THE complaint does not state private
offense, and the demurrer should have
been sustained. The offense, l presume,
was prosecuted as malicious mischief.
II go, the complain, must allege the act
or acts that were done maliciously. If
the defendant bad been en-
ployed by the bank to take
down or remove the building in
question, the allegation in the COM
plant would comport with such fact.
The gist of the offense OF malicious mis-
chief is ill-will or resentment toward the
owner or proprietor of the injured or de.
stroyed property, and therefore there
shall be wilful destruction OF property.
The court erred in its instructions to
the jury. 1t told the jury what facts
the evidence established, and what it
did not prove. This process is usurping
the province of the jury. The jury
must be the exclusive judges of what
the evidence proves or what it fails to
prove. Judgment is therefore reversed
and the case dismissed"
THE JURY DISAGREED.
At 10 O'Clock yesterday afternoon the
felony case against R. Frank Warner in
department one was resumed. Argu-
ment being all in, the Judge presented
instructions and charge to the jury and
they retired to deliberate upon verdict.
They were out during the greater part
of the day, and at the time for closing
of court last evening announced that
they could not agree upon verdict, and
were therefore discharged.
Court Notes.
In civil suit before Judge Jmith yes
terday w. d. Vawter obtained judy
ment against E. A. Haws for $53S, with
$50 for attorneys fees.
The appeal case of the people We. AL
burtus came up in department one yes
firmed the judgment of Justice Owens.
The defendant was found guilty of COM
mitting battery on the person of A. G.
Stevens last November in the police
court.
Judge Mckinley yesterday set March
14th for the trial of George Miles, the
alleged murderer, the case having been
transferred the day previous from de-
partment one.
Findings and decree in the case of the
East Side bank against E. A. Vjckery,
to effect foreclosure on promiesory
notes, were signed yesterday by Judge
Van Dyke, according to his judgment
previously rendered.
Today, at 10 o'clock, in Judge McKn-
ley's court, John Glinn will present his
plea for divorce from his wife Lizzie
on the usual statutory grounds. 1t was
Only about year ago that this connla
were before divorced, but they have re-
married during the interim, and again
seek to be separated, owing to domestic
infelicity.