The Saint Paul globe., 1897-06-04
ON FIDUCIARY RELATIONS
THERE ARE THREE CLASSES AND
THESE CHARGED UNDER
THEM ALL.
JOINT ONE is MANIFEsTLY BAD.
County Attorney Anderson Claimed
the Bills Are Not Too Indefinite
or Vague.

Anderson were engaged before Judge
Lewis from until o'clock yesterday
afternoon arguing in support OF ana
against the demurrers to the indict-
ments against the Dawsons. William
Dawson and William Dawson Jr. were
both present.
The indictments to which the demur-
rers have been interposed are three in
number-a separate Indictment against
each defendant and a joint Indictment
against both, charging them with ap-
propriating certain money to the use
of the st. Paul Plow company.
At the outset Of his argument, Mr.
O'Brien pointed out that the same
questions were involved in the demur-
rers to all three indictments, except
that in the case of the joint indictment.
an additional question would be raised.
Mr.. OBrien then proceeded to state IN
detail the grounds Of the demurrers.
He contended that the indictments
were not certain and definite in form
as required by law. Under the penal
code, whereby embezZlement was in
cluded under the general head OF lar
ceny, it was necessary to set forth in
which the crime was committed. In
the case of embezzlement, these cir
cumstances were the fiduciary relations
existing between the party charged
with the embeZZlement and the party
from whom the property is alleged to
have been taken. Mr. O'Brien then
enumerated the three classes of fiduci-
ary relations mentioned in the penal
code.
First Class-Where the party charged
with embeZZlement is the servant at
torney, agent, clerk, trustee, or officer
Of the owner Of the property. Second
class-Where he is charged as public
officer. Third Class-Or as a person
authorized by agreement or competent
authority to take and hold such possess
sion of the property.
Mr.. O'Brien then read from the Daw-
son indictments, showing that they
charged the Dawsons with the lar
ceny of the moneys, under all three
classes named in the statute Mr.
Brien insisted that in consequence the
indictments were uncertain, and there
fore bad. He also maintained that an
indictment could not allege all the fidu-
ciary relations that can possibly eX-
ist and be held good. The prosecution
could not allege all and prove only one.
1t was impossible for one man to serve
in all the capacities named, such as
servant agent, bailee, employe, clerk,
officer and director. A servant Of the
Bank of Minnesota would include the
jaintOr. Employe was an equally broad
term. In what capacity did the defen-
dantS have this money in their possess
sion? The allegations. were uncertain.
The third class, that, including per-
sons authorized by agreement or by
ifxv ole
by the language of the Indictment,
What authority? What agreement. The
indictments did not state. The fiduciary
character, the actual relation of the
indicted parties to the bank should
have been fully and definitely alleged,
must be averred intelligibly. Such was
not the case, however. Mr.. O'Brien de-
clared that an acquittal under such in
dictments would never be bar to sub
sequent indictments based on the same
charges.
AS for the joint Indictment, Mr.. o.
Brien contended that it was manifestly
bad, inasmuch as after alleging that the
defendants had appropriated certain
money to the use of the st. Paul Plow
company the Indictment neglected to
state that the ST. Paul Plow company
was not a corporation legally entitled
to the use and benefit of such money.
The Bank of Minnesota might have
owed the plOW company that money for
all that appeared in the Indictment.
In conclusion, Mr.. OBrien remarked
on behalf of his clients that, it was
sometimes said that innocent defen-
dantS ought not to demur to an indict-
ment, even if it was improperly or ir-
regularly drawn.
But I say" proceeded Mr.. O'Brien,
that unless a man is lawfully ac-
cused he should not be punished even
by a trial, and the counsel for such a
man who would permit him to be tried
would be guilty Of gross negligence -
Mr. O'Brien suggested in conclusion
that if the court experienced grave
doubt in deciding the question, he
would respectfully request the court
to certify the matter to the supreme
court.
County Attorney Anderson, in oppo-
sition to the demurrers, began by
complimenting Mr. O'Brien upon the
ingenuity Of his argument, and his
citation of authorities. But these au-
thorities, Mr.. Anderson contended did
not support counsel's argument In
answer thereto, the county attorney
maintained that the indictments were
not indefinite or uncertain in setting
forth the relations of the DawSons to
the Bank Of Minnesota. Their rela-
tions to the bank were not averred in
distinctive form, but conjunctively.
Ii did not render an Indictment vague
or indefinite to allege that the de-
fendant is the servant, agent, employe,
officer and director Of &c. The allega-
tions were clear that the defendants
had this property in their possession
by virtue Of competent authority for
the use and benefit of the Bank of Min
nesota- Certainly nobody could be
misled by the indictments.
AS to the joint indictment, Mr.. An
derson contended that the allegation
that the money appropriated to the use
of the ST. Paul Plow company, was
held by the defendants for the use and
benefit Of the Bank Of Minnesota, was
sufhc1ent to state public offense. 1t
rendered 1t unnecessary to further al
Iege that the plow company was not
legally entitled to the use and benefit
Of the said money.
After some further argument counsel
finished and Judge Lewis announced
that he would take the matter under
advisement.