The morning call., 1893-07-08
The Ex=Cashier Gains a
Legal Point.
HE WILL BE TRIED AGAIN
Judge SeaweIrs Long Decision, in
Which He Acknowledges Errors
in His Charge.

ana Attorney Cabin occupied seats IN the
jury-boX, and Carroll Cook. arrayed in a
most dazzling suit Of clothes, cOnyersed in
whispers with Attorney Chapman for the
defense. Flood sat among the crowd chat
ting TO his son.
1t was not known whether Judge Sea-
we'll would render decision on the motion
for new trial or not. and speculations
were rife as to which way it would go
But when the Judge emerged from his
aDteroom, holding voIuminous manu-
script in his hand. it was known that he
had made up his mind one way or the
other.
The first part Of Judge SeawelPs deci-
sion told so much against Flood that Car
roll Cook looked anxious and began 10 take
notes, but when a few pages had been read
and the Judge began acknowledging an
error in his charge to the jury the faces OF
the attorneys for the defense frightened
and they awaited the result with looks OF
quiet confidence
The decision was set forth at length.
Judge Seawel rehearsed the duties of
Flood as the banks cashier and paying
teller, and reviewed the evidence presented
against him at the trial. When. however,
he came to the points made by the defense
his dissertation became very Interesting.
He said:
The first point urged by defendants counsel
IS that defendant had neither the possession nor
control OF the moneys of the corporation. and.
for that rraSon. cannot be convicted of The
ENLIGHTENMENT with which he is charged.
1t Is alleged IN the indictment that ihr money
was IN the possession, care. custody and control
OF the defendant as The clerk, servant and agent
Of he corporation; and il is claimed by defend
ants counsel that lnasmuch as he indictment
charges that the defendant fraudulenIly appro-
prlaied The money 10 bis OWL use. the case is
governed by the provisions OF section sos of the
Penal Code rather than by those of section 504.
am Of the opinion that the latter section
Is applicable rather than the former.
as II In express terms defines what
acts of servants. clerks and agents of
corporations slrall constitute enlightenment.
The former section (506) mentions only natural
eFsonS. By sec ion 504 the fraudulent apurO-
priauOn, 10 ny use or nuruOse not in The due
ana lawful execution of the servants trust, of
any property Which lie has IN lis pos es>Ion or
under his control by virtue of his trust is de-
clae ed o be embezZlement. By section sos the
crime is committed when The servant fraudu-
leDtly -approprales o his own use the prop-rty
of another. which has come into his control or
care by virtue of his employment as such SER
want. In the former section 900 the words
"pOsSessIon' and "contrOI'' are used; in the
latter the words "cOntroP' and care" The
word CUSTODY is not used in etler. The
language OF The Indictment is sufficient 10 meet
the requirements of both sections. and they
may both be applicable. An appropriation by
defendant 10 any Use not in the due and lawful
execution OF his trust would IN the eye of the
law, be deemed all app opriatlon to his own
USE and cert dnly an appropriation 10 his OWE
use would not be in the due and lawful eXecu-
ton OF his trust.
Even if defendants counsel are correct in
their statement that The defendant did not have
possession OF the moneys of the banK within
the meaning OF the statute, The evidence, in my
opinion, Is Suf1cient 10 show that he had the
control OF it, The testimony of Mr.. Ravens is
explicit that defendant had control of the CASH
paid checks, aud had authority TO pay over
drafts. If he saw fl 10 pay them, without con-
sultlng any other officer OF the bank. He was
Ihe only person who opened the vault In tile
morning and closed it at night. AS paving
teller, he appears 10 have been the only person
who PAID out the money of the bank.
II the defendant did not have control of the
money of the bank, within the meaning of the
statute, il must indeed We very limited APP
pllcatiOn in cases OF msapproprialiou of funds
by employees of corporations.
1t is further claimed In support of this motion
that there Is no proof OF the corpus delicti, in
depend nIly of lie onfesSiOns of the defend
ant, and that The corpus deficit consists not
merely Of al objective crime, but of defendants
agency in the crime.
1t is tue hat confessions alone, unsupported
by corrobofaiing circumstances. are not suttl-
cent 10 convict There must be evidence
aliun6e OF the corpus delicti But. as was said
by NelsoH, CHI j., 10 People vs.. Badgley Q6
Wend. 81, '.full proof of The body Of the crime,
the corpus deetl independent OF The confes.,
sions, Is not required by any of the csses. and
IN many OF them slight corrOboIatIDg facts
were held sufficient" This language is cited
and approved by Mr.. Justice Sawyer In People
vs.. Jones (3l Cal. 56S) and by many other emf
nent authorities. AS to whether the cOrrObo-
rating facts IN this case. added TO The alleged
confessions, are sufficient 10 convict the de-
fendaHt here II is not necessary for me TO = X
press an opinion. l am satisfied that the court
erred III portion OF its charge 10 the jury aud
that for that reason the defendant Is entitled to
a new trial.
The court instructed the jury that while oral
confessions made by defendant OF his guilt were,
without other evidence, insufficient to convict,
yet That entries made by him In the paying
teller's daily report al the close of ach days
business of The amount Of money then on hand
were, without other evidence sufficient to
prove the facts therein stated. There is dis
tlnctton in law between an admission and A
confession. The term admission is applied in
criminal cases 10 those mat ers of facts which
90 not involve criminal intent; and it Is not
necessary to their admssibility that they
Should be MADE volun arily and not under the
lDluence Of nope or fear. The term confession
Is restricted TO acknowledgements of guilt
"hle, In civil cases, The admission alone of
party TO an action is, as against him, sufficient
toy rove the fact admitted, | am sa isfed mat
in criminal cases where the admission of party
defendants relied on to prove a fact, there musi
equally with the case where confessions are
relied on, be some corroboratng evidence in
addition 10 the admission. The written state
ment OF the def ndanI that a certain sum of
money was on hand at given date is of course
admissible and may. as against him, be evil
deuce that the money ought 10 be on hand: hut
in q criminal prosecution, where the actual
presence OF the money is material, 1t Is neces-
Sary 10 show that Ii was In fact on hand.
Ii may be said that in this case there are
cOrroborating facts; but they had reference
only TO one date-February 15-and 1t WIS
necessary for the jury 10 determine their SUI
fciency. BY the erroneous instruction the Jury
were authorized 10 find from defendants report
alone that the cash on hand on the morning of
f. bruary 10. 1893, amounted to the sum of
S752 382 81.
BY the paying teller's report Of April g. 1893,
the cash on hand at the close of business on
that day was the sum OF 81 1885, DIG 80. This
was The sum with which the Bank Commits
sioners on April compared the result OF heir
count. and IN reference 10 which they ascer-
tanned that there was a shortage in the cash
(usng round Dumbeis) of S163, 100 Deduct
ing his sum from 81 1856 ,01G 81 (the amount
appearing by the defendants book TO be on
hand) it appears that the amount of cash
actually on hand on TIL morning of April was
S1171,316 81. Now the cash Oh hand Feb
ruary 49, when the count was made by the
finance committee, Appeared 10 be only the sum
of S7523S2 81. There was, therefore. on
April about SAL 5000 more money actually IN
The bank than there was when Messrs. Grant,
Eastland and McKinnOn made their count.
There is no evidence liz The case other than tn
defendants reports as 10 the amounts OF money
received and paid out between February IA
and April 4 and 1t appears to me that the
prosecution should have sh0 n what those
amounts are by some evidence III addition
a. The defendants reports. The daIe at which
The prosecution begins lis Investigations as 10
The state of The cash is February IA and that