The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1896-09-01
HARVEY IS ACQU|TT TED.
Other Charges Still Pending
Against the Stock
broker.
A Stubborn Jury That Was Not
Inclined to Follow the Judi.
cial Advice.

Leroy G. Harvey, the stockbroker, on
trial for embezzlement OF seventy five
shares of Oakland Gas Light and Heat
Company stock, was yesterday acquitted
OF the charge, the jury bringing in
verdict of mot guilty." by instruction
of Judge Bahrs.
The case has been on trial in Depart
ment II of the Superior Court for several
days, and yesterday morning the prosecu-
ton closed its case. NJ. A. Dorm, attorney
for the defense, at once introduced mo-
ton to dismiss, on the ground that the
evidence was insufficient to convict. Dorm
claimed that Harvey was, by reason of the
transfer of the stock to him, its legal
owner, and could therefore not be con-
victed of EN- bezzling it. The jury was ex-
cused until P. NJ. to allow his Honor time
to consider the motion.
When court convened in the afternoon
Judge Bahrs read his decision. He said
in part:
The defendant cannot be convicted unless
the proof shows defendant TO have come into
the possession of the property alleged to have
been embezZed as a ballee. This could not
have been the case If the defendant was in
vested with the title to the said property al the
time he received 1t.
Maude A. smith testified: "I Endorsed the
certificate on the I'd day OF August, 1894, at
Mr.. Harvey's request, at my house. Mr.. Harvey
represented TO my mother and that he had
some large dealings with some Eastern syndi-
cate, and that it was necessary for him to rep
resent himself TO them as man of property,
and asked that this stock be Endorsed that he
might show them. An objection was made at
the time, but Mr.. Harvey said, sWhy, Mrs.
Smith, you know that l have plenty OF real
estate, but it is much more difficult to show
that as collateral, think you call it, than it
would be to show stock so we were willing,
and he said i ask this as personal favor; |
never asked one before, and on that account 1
am sure you won t refuse me-.
1.-THE question was asked Mr.. Harvey at the
time Is that quite fair Tor you to represent
yourself the possessor OF our propertyP and
the reply was, You know that have plenty OF
real es tate, and much more than the value of
that, but this was much easier and quicker :"
The outcome OF the transaction was that the
certificate of stock was Endorsed in blank and
delivered to defendant, which transaction con-
yeyed title to defendant, according TO section
3Z4 OF the Civil Code, which section has been
repeatedly construed by our Supreme Court to
mean that the title to certificates of stock are
transferred by Endorsement and delivery
Therefore, according 10 rule OF law furnished
by code, the title passed, ana defendant did
not receive the property as bailee.
Independently of this rule OF law, the testi-
mony clearly shows that the parties contem-
plated that the defendant should use the prop
erty as II 1t We're his own; at all events that
he was TO represent IL as his own; this he had
no right to DO unless he was clothed with tn
legal title, for otherwise to have done so would
not permit. In law Miss Maud A. Smith must be
presumed to have granted enough to make the
privilege she gave defendant effective
FOR the foregoing reasons | am satisfied that
a conviction under the Indictment upon which
the defendant is on trial cannot be sustained
ana Tor that reason advise the jury 10 ac-
quit.
Although instructed to acqui:, the Jury
could not for long time make up its
mind to do so. 1t was out for almost an
hour, and returned to report that Ii could
not agree, one juryman declaring that he
would never consent to declare Harvey
not guilty.
The twelve good men and true were sent
out again, however, and on their return a
short time later rendered q verdict in ac-
cordance with the instructions OF the
Judge.
The threatened disagreement of the jury
caused passage-at-arms between Judge
Bahrs and Assistant District Attorney
Hinkle. The attorney inquired what
course his Honor would pursue in case
the Jury disagreed. The Judge was angry
at the action of the jury in debating at all
over his instructions, and replied that he
was as much part of the court as was the
jury, and that he would himself discharge
the prisoner.
There Is still pending against Harvey
anoIner charge OF embeZZement, which
VIII In all probability be dismissed, and a
charge OF grand larceny substituted. The
latter charge will be harder to dispose of
than that OF enlightenment.