Omaha daily bee., 1897-06-15

nolle pros. to the first and second counts
of the information, these relating to the
embeZZlement of the warrant and the state
would elect to stand on the six counts charg-
ing the embezzlement of tho money
Following this the attorneys for the de-
fendant withdrew for consultation returning
in about ten minutes.
NEW PLAN or DEFENSE
Mr.. Mahoney then announced that the de-
fense desired to file motion to direct
verdict for the defendant, but sal he would
require little time to prepare a formal
motion and to produce authorities in support
OF the motion. In reply to questions by the
court he stated that the motion would be
based on the insufliciency Of the evidence to
support verdict on counts two to eight
inclusive, or any of them, and he would pro-
duce authorities showing that the motion
should be granted.
lie was given time to send for his authori-
ties and in the meantime the proceedings
were at standstill.
When Mr.. Mahoney returned the Jury was
urected 10 repire and he outlined his argu-
ment, stating that the testimony showed that
If anything had been embezzed it had been
a credit In the bank anu not money in any
form This statement had reference to the
testimony of this bank officials showing that
IN all dealings III connection with the sale
OF the warrant, the increasing of Bartley's
personal account by the amount of the pro-
ceeds from the sale of the warrant and the
payment of the warraLt by check not a
cent had passed, the whole transaction be-
ing merely an interchange of credits nm the
banks books
Mr.. Mahoney read from the information to
show that 1t charges the defendant VITA EN-
bezZling money and nowhere describes the
article embezZled as anything eXcept money
He read from the section of the statute re-
lating to embezzlement, showing that il
mentions in detail every form of aSsets or
property which may be embezzled Tie aus
tion, he said was whe ther the credit of the
state as represented by entries on the books
Of state depository was correctly desc. ibeI
as money" In the Hill case he said Judge
Post defined certificates of deposit or drafts
which might be passed from hand to hand
as money, but Judge Norva said in the
same case that it was preposterous to call
anything hut legal tender money
DEFINITION OF MONEY.
Mr.. Mahoney then read from ire statute
the section directing the treasurer to turn
over to his successor all money" received
by him, and stated that in this section the
word was used in its generic sense to desir-
nate every form OF asset coming into the
hands OF the treasurer, but he Claimed the
word was not Used in this sense In the sec
ton defining embezzlement, other terms be-
ing used in this latter section to define tho
various forms of assets such as bonds
checks, etc. Mr.. Mahoney read from author. .
ties to show that where a generic term is
employed in connection with a term
which is ordinarily included in the
generic term the latter must be
construed in it's specific sense He oon-
tended that the word money" was never
intended to designate deposits in a bank sub
Jeet to check He argued at great length to
sustain his position that a man could NOT
be charged with the embezzlement Of money
and be convicted OF tie embezzlement Of
something else He challenged the prosecu-
DFDlnpp itv In III
language where a court of last resort had
found that credit in a bank, which could
only be transferred by the diawing of a
check, the making of another contract. was
money. He said II could not be claimed
that bank credit was money because il
was equivalent in value to money. because
that IS not always the case and even II II
was, then anyts Ing which represented the
Investment of money might be called money
In support OF his contention Mr. Mahoney
read trom a large number of authorities and
In conclusion be asked the court to construe
the law as 1t Is written and not to allow any
| considerations of public sentiment to have
influence on the decision.
At the conclusion of Mr.. Mahoney's argu-
ment the attorneys for the state stated that
they would prefer to wait until morning
II being then o o'clock, before commencing
their argument,
Judge Baker said he had given this ques-
tion great deal OF consideration since the
beginning of the ease and had reached the
conclusion that the matter was a most seri-
Gus one. He reflected somewhat on the prose-
cutors for not including in the information
a count covering the point raised.
The attorney general and the county at
torney said they would take issue directly
with the defense and would take the position
that there was a transfer OF money and that
the credit was simply an evidence of il.
Court was adjourned until o'clock this
morning.