New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1895-03-16
THE CHECK FOR $500.


The making OF the check for 5000 to f.. w Bi'i-
niger by the cashier under the direction OF NJ
Wiman. s referred to. and Mr.. Wimans indorse-
of the firm name of r. q. Dun & CO.. WHICH
the Court saws. he had right TO do. and also the
M OF the na%s Of Mr. Mr. RHset Wma 70 sign
the back OF that or any other commerciai
paper
Then follows a long review OF the evidence pre-
sented at the trial. relative the relations whch
the several partners In the firm bore TO one an
other: ard attention is called to the repeated vio-
lations OF the articles f association previous to
the time Of the alleged forgery. bearing upon
Mr. Wimans alleged intent to defraud. The
charge Of Justice Ingraham is then dealt with:
During the charge the Court charged the jury
In respect TO the meaning OF the word de1raln
TO deprive Of right. either by obtaining something
by deception or artihce. or taking somethlng
wrongfuily. without the knowledge OF or consent
definition Of 'defraud' as know OF
DEFECTIVE DEFINITION
II Will be at once seen that this definition i
fatally defective. far as relates to criminal
proceedings. the las, branch Of the proposition
takes no cognlzance Whatever OF the question "i
intent The Jury were BY this definition in effect
charged that II Wiman wvoEgfully took without tn"
knowledge or consent OF Dun the loney IN d'its,
ZION, although he may have believed thst ne nsa @
the right to take the money, he was guilty o. the
intent 10 delraud required by the statute mus,
clement when it has been repeatedly held must be
5reSGn namc y the oT5 ormna ,o cnnsttute sme
the doing OF the act prohibited with the intent TO
do the act is sufficient ,hougn he party may not
be aware OF the fact that he * transgressing me
law But there is no possibility o. an act Of fraud
being committed without fraudulent intent Inc
word fraud imports guilty knowledSe ,.,.
the only que ston of intent submitted being an in.
tent to do an aci which was not by, any means Of
recessy criminal Even Wman believed ID ne nad
Of previous dealinEs the jury were instructed thai
o. he took il Intending 10 take 1t ne was Gullty
Of an intent to defraud An intent t. Gefraui & wogl
seem 70 involve some moral turpltude. bui uhder
this instruction mistake as to proPeity tights Is
Of itself sufficient to Justify hndng 2t 'saui, i
This = carrying the definition ot fraun much
further than has We: been done We think that IN
this instruction to IN" Jury me question 81 cr.,i, &
raj intent entirely e.iminated and under these
circumstances the refusal Of the request 10 chaTse
rhe cour, also holds that there was error either
says: And II seems to rs certainly that II 1t was
Competent upon the part o: the prosecution - pr9ye
tne Indebtedness of Wiman on the question OF ms
t had - NEE, such Indebtedness in order that
he 'I, Might rrbft any 7fercnce which might be
drawn from such indebtedness. II IS not intended
me h-ry that il wimaH was s1ilty Of forgery
in the Obtaining Of this money. the fact that he in.
Kramer qualified the nature Of his act
CONCURRING IN THE OPINION.
Judge OBrcn writes an opinion concurrng in
the result reached by the Presiding Justice. that
the Judgment of conviction should be reversed
and q new trial ordered. He SAYS:
The intent with which the act vas done was an
essential ingredient OF the crime and beinS a
question Of fact. and not Of law. IL vas necessary
that under proper Instructions Il should b" sub
lnitted To the Jury 20 whom the solution of the
question of fact belonged II was important TO the
ri nj, of tho defendant that this question should
be- rearly presented to the jury. and where. as In
IN. case AZ bar this done. II cannot be re-
garied harmless error
Judge Folett took a different view ~ the case
ami handed down a dissenting opinion. in which.
after A long review Of some ~ the features of
the testimony, he writes
n Vas urged on the trial and II IL urged ~ this
court that the defendant partner % X. -.
Dun n Co and being such. that his secret with
draNal OF partnership fund for hts ndiv dual use
was neither n fraud nor crime. We think the
Issues whether under the contract the defendant
WAS "A partner or believed himself 10 br one. were
nor material The evidence given by the defendant
conc usiyrly shows that he had right 10 use the
partnership funds for hls own purposes. and that
hr knew il He had been called to account for
using the funds and forbidden 10 DO so. and ne had
promised I'm writing never 50 10 offend again. That
the defendant did apply the 5000 received By means
~ this check his own individual use and at
tempted 90 conceal the fact II not denied TO DO
this was fraud. and. II accomplished by means
u forgery II crime AS before stated, II
was a crime In and of Itself. and IL also
,rlne within tho issues submitted 10 the jury, the
.ssue heing found in favor of the people.