The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1893-06-28

new trial in the case of ex-CaslIier John
w. Flood of the Donohoe-Kell Bank.
Cook had argued long and persistently,
Dasing his argument mainly on the alleged
errors in the Judges charge TO the jury.
The non-production OF the paper prepared
by the prosecution, when PAPER was sup
posed to show the dates and manner of
the stealings charged. was made the most
OF by the defense, as was also the absence OF
the elder Donohoe from the wltness-stand.
But the prosecution had master card to
play in the fact of Flood being advised
not TO subject himself 10 examination.
The concern was an old cne," said Mr..
Barnes yesterday, land was conducted on
old-fashoned principles. About no mem
Der of that concern was there sample Of
reckless, go-ahead dashing banker of
which my Door old friend Ralston was
the type and forerunner. And that Flood
was man of rare gifts in his adopted oc-
cupaton there can be no doubt. Only
short while ago he received letter from
his superiors in The concern that ought to
have proved a pillar by night and cloud
by day to keep him in the path of recti-
tude. Unfortunately in his circumstances.
he has been ten thousand times more I'M
fortunate in his silence"
Then Mr.. Barnes went on to pick holes
in Carroll Cooks objection to Judge Sea-
wells charge to the jury, in that pos
session and control were mentioned with
the omission of the words. care and Gus
tody." He said that no matter what might
be urged on this subject there always re-
NAMED the fact that Flood, in bis posi-
tion as cashier, was supposed 10 count the
money every day. 1t had been urged that
no proof had been shown that the missing
S164, 600 had ever been in Floods posses
sion. and there had been some considerable
bubble about figures. Also ii had been
urged that under the law governing the
np6 ,tat OF, hp1d
tions, such as Flood held, if any crime
could be laid to his door 1t must be one of
larceny, not embeZZlement. Furthermore.
that there was no legal evidence of the in
corporation Of the concern.
All these matters counsel argued upon
at some length. Mr.. Barnes cited cases to
show that il was not necessary to bring
forward positive documents in proof Of
the alleged incOr Grafton OF the company,
but that circumStantial evidence was al
ways accepted in such matters. Sufficient
proof OF the incorporation OF firm,' said
Barnes. lilies in the showing that it does
business as such"
In such way Mr.. Barnes argued for
some three hours or so, the while Joseph
A. DOnOhoe Sr. sat an attentive listener
Once in a while Flood, who occupied
seat alongside his SOD. among the
audience, would attempt to force a
smile as if in ridicuie of counsel's
tAOrlS 10 cOnVlct Hlln Dub Wnen ne
listened to Mr.. Barnes telling of the his
tory of the foundation of the Donohoe-
Kelly Banking Company, and how Joseph
a. DonOhOe and Eugene Kelly had each
subscribed 100000 and had given both
Flood and Howard Ravens q large salary
and an interest in the profits by reason of
their long and faithful services, Flood
seemed 10 grasp the rail OF his chair and
hang his head while he thought of things
as thew might have been
At the conclusion of Mr. Barnes ad-
dress Carroll Cook asked for a continual
ton, as his colleague. Charles Heggertv,
was to introduce arguments in reply. TEe
further hearing OF the motion was con-
tinued until Friday morning next.