Omaha daily bee., 1897-10-20

less remained on the bond Judge Powell
swept away this position
| This Is not proper rebuttal testimony 1t
| Is In my discretion, however to allow these
| waivers to be introduced as a part OF your
| case In chief" he said III took the matter
under advisement until this morning, ad-
| jOurnlng court in the meanwhile.
IL the state can put in the documents as
part OF the case In chief II will mean a re-
! opening OF the case. The boDdsmen must be
given an opportunity to defend. The case
along this line may last as long as it has al
| ready.
Yesterday morning when court convened
| Governor Holcomb recalled for cross
| examination. General GOWNS questions were
to show that Governor Holcomb had not fol-
lowed the statutes in allowing BARLEY to ac-
count for SA49 900 OF permanent school funds
with certificates OF deposit. Going on this
theory the counsel read from the statutes
and asked the witness what he considered
their meaning to be. The court ruled many
Of the questions out holding that in order to
answer the governor was placed in posi-
tion where he must do so with some legal
conclusion
The counsel for the bondsmen insisted that
the question was perfectly proper lie said
that the governor had testified that BARLEY
had made an accounting in part by means
Of the certificates OF deposit In view OF
this testimony he held he had a perfect right
to question the witness as to his duty in
this accounting. He said that II he was al
lowed to put his questions he would show by
the governor himself that he had no business
| to accept certificates OF deposit instead OF
cash for any state funds and by doing so
he had failed to bring to light a shortage of
1000 for which the bondsmen should not
be held liable
DISPOSITION OF STATE FUNDS
In answer to a series of questions Governor
! Holcomb testified that II was his construc-
| tion of the depository law that the educa-
tional funds could not be put into depository
banks. but were under control and keeping
OF the state treasurer until they were in
vested by the educational board.
Did you not know that it was Illegal for
| the treasurer to put the educational funds
in Unauthorized banks?" asked.
"T did not consider 1t unlawful, nor did
| think 1t was a misappropriation to do So"
you thought it right for him to farm out
! this money amongst blnks?'
| II did not consider it farming but | saw
| no other way that the money could be safely
kept"
"Did you not know that this money could
not be invested in anything but United
States and state securities and registered
county bends of this state?' then asked
| General Gown, quoting from the statutes.
An objection to this question was sustained
and then General Gown asked, reading again
from the statutes:
when the law of the state specifically
and emphaticay provided and made it
| felony for the state treasurer to take any Of
| the funds of the state out Of the state treas
ury except on legal warrants and to place
| them in legal depository banks and made 1t
a felony for him to make gain or profit for
! himself through them, did you not know that
| that applied TO the permanent school fund
| and that you could not take the evidences
| of that felony represented by what you call
| certificates of deposit to make up his ac-
| counts?"
This question brought out vigorous OBJ
fr,ti
asked for. The defending counsel asked to
be heard. The jury was therefore excused
from the court room.
General Gown said that these questions
were proper in view of the governors testi-
nony. The governor in the first place, had
said that the examination of the funds ana
the books with BARLEY resulted" in an ac-
counting; that he had testified that $4,000
of the funds alleged to be turned over con-
sisted cf alleged certificates of deposits which
we're not on record or q part of the records
but which BARLEY took out of a cigar box.
General Gown held it as decidedly loose
proceeding that BARLEY should be allowed
to account for nearly 100000 state money
with sCme papers taken out of a cigar box,
which not shown on the books and
which the governor did not know were gen.
uine. He wanted to show that the proceed
ing not only loose, but that it was in
direct violation of the statutes and that the
governor knew it.
QUESTION RULED OUT
Judge Powell refused to allow the line of
questioning, saying that 1t would require
the witness to draw legal conclusions. Then
General Gown insisted that the governor
drew a legal conclusion when he testified
that from his examination Of Bartley's books
and the cash, the bank deposits in depository
banks and the certificates of deposits handed
to him by BARLEY, he reached the result that
BARLEY had accounted for all funds charge
able to him. General Gown asked that this
testimony be stricken from the records
Tt,lr ID ~, ~,
that this testimony was not Of fact. but
Was a legal conclusion. He stated further
that he would not have allowed it If OBJ
| lection had been made at the time. He
refused to strike it out now. but intimated
! that 1t would not prejudice him in deciding
the point of law involved. For Judge Powell
insisted that he. and not Governor Hol-
comb. was the one that must decide whether
! Governor HolComb had perfectly performed
his duty under the statutes.
The decisions shut out the bondSmen
from furthr questioning in the way they
mad pursued all morning. Consequently
when the jury was called back the cross
examination was confined to the governors
testimony that the bond was filed before
1t was presented to him by BARLEY on the
evening Of January 3, 1895.
The governor would not swear positively
but said that to the best OF his recollection
the bond bore the filing mark of the secre-
tary OF states office with the date. January
3. 1895.
EX-Deputy Secretary of State Evans has
testified that the bond had not been filed
until January 8, 1895, and the defense CON
tended that the 80" had been erased and
the '3' substituted. Evans testified posi-
lively that he had not attached the name
OF ex-Secretary OF State Piper and his own
to this filing endorsement until January 8, |
1896 but Governor Holcomb testified that
the names were there when the bond was
handed TO him on January 3, 1895
Did YOU not know the bond could not be |
filed until after it had been approved?" de- |
manded General Gown.
The objection that the question called for
a legal conclusion was sustained. General
Gown announced that he had no further |
questions to ask Attorney General Smyth |
asked but two questions on redirect exami- |
nation.
Governor Holcomb was called on to saw
that after BARLEY handed him the bond |
on January g. 1895 he had kept the |
document until the next day having 1t with |
MN In his room at the hotel over night |
Ihis was to refute the intimation made by |
he defense that the governor had handed |
the bond back TO BARLEY with the suggestion |
mat he get more signatures.
Attorney General Smyth then gave Gov |
ernor Holcomb an opportunity to explain his !
reasons for speaking OF certain statutes as a |
NEa.