The sun., 1898-06-25

sendant's attorney TO produce all docu-
isentary evidence showing the character
Of the Indebtedness represented by the
bond for 5000 Such documentary evi.
dence, il any existed, was not produced.
| ! ou are not, however. to draw any in
| ference adverse 10 the defendant from
the non production nf such documentary
/ evidence, il any existed. pursuant torhe
( call made upon his attorney. But when
the defendant took the stand as a wit
ness he did not in any p,rtion Of his tes-
/ timony stale that such documentary eyi-
dence, il any existed, had been lost or
destrotel or was not within his power to
produce. William \. Boggs had testified
positively 10 the effect that on April 8,
1897, prior 10 the execution Of the 81 600
/ bond, ne had gone over with the defend
ant in the defendant office all the items
OF Indebtedness included in that bond:
that all Of the Indebtedness included in
the bond was made up Of alleged fraudu-
lent checks OF the defendant upon The
First National Bank Of Dover, not in
clnding the two checks Of the defendant
, each for $40 bearing date respectively on
May s, 1896, and May -, 1896; that the
aggregate amount Of the alleged. fraudu-
lent checks represented in the bond was
between g, 100 and g, 500 and that the
balance of the s. 900 was represented by
interest to that date agreed upon between
the defendant and William y. Boggs;
and that all OF the fraudulent checks
/ covered by that bond, together with let
tiers and kilograms relating thereto were
then and there delivered by William
\. Boggs to the defendant.
! Under these circumstances has or
has not William n. Boggs been success
fully contradicted in this particular?
There are other questions OF contradic-
tion in the evidence which YOU will
. doubtless clearly recall without any sug-
gestion from the court.
need hardly remind you, gentlemen,
that You are fully to understand that all
lntImations or expressions OF opinion by
the court upon the evidence in this case
or deductions to be drawn from it, while
intended to aid You in reaching proper
conclusions. do not in the least control
you in al irving at your verdict. You are
the sole judges OF the credibiitv OF wit.
nesses, the weight to be given to their
testimony and the weight and effect OF
the evidence, whether oral or docu-
mentary. While it is the exclusive
function OF the court to present to you
the principles OF law applicable to the
case. il is Your exclusive function to
pass upon the facts and apply the
evidence subject to the principles OF law
as presented by the court.
1t is proper that ! should add tina;
your verdict in this case should not be
controlled by contradictions in minor
points. should any such exist, provided,
the evidence taken as a whole, after
making all due allowance for any such
contradictions. leads YOU to fixed con-
clusipn Of the guilt of the defendant. Ii
the evidence SO taken shall not satisfy
you beyond a reasonable doubt, as al
ready defined, that the defendant is
guilty, he should be acquitted. If, how
ever the evidence does so satisfy you be-
yond reasonable doubt your verdict
should be guilty. 4 criminal case. in
volvlng much testimony and many facts,
should not be decided upon the proba-
bility or improbability OF any one point
singled out Of the evidence, but proper
decision requires due consideration to be
given to all the evidence. direct and Cir.
cumstantial, in the case. | DO not deem
it necessary further to refer to the sub.
iect Of cOrroboratOn. either Of William
n. Boggs or OF the defendant. There has
been much documentary evidence as
well as oral testimony upon that subject
which you will Doubtless recall. One OF
the two main questions in the case is
whether or not the defendant with intent
to injure or deiraud The First National
Bank of Dover, knowingly and iraudu-
emily aided or abctted William y. Boggs
unIawfully to abstract or wifully to mis-
apply the moneys Of that bank for the
use, benefit and advantage OF the defend
ant, as charged in the Indictment. The
other main question is whether or not
the defendant and William n. Boggs I'M
lawfully and fraudulently conspired to-
gether unlawfully t, abstract or wiIfully
to misapply the moneys of The First
National Bank Of Dover for the use,
benefit and advantage Of the defendant,
and with intent to injure or
dcfraud that bank; and further
whether or not the defendant or William
\. Boggs, or both OF them, did some act
to effect such unlawful abstraction or
willul misapplication as charged in the
Indictment. a man may overdraw his
account in bank and be innocent of
any evil or unlawful purpose. Over
drafts are not uncommon in bank trans.
actions. \ bank may desire to accom-
modate Temporarily depositor; and if
depositor knowingly makes an Overdraft
his relations with the bank or its officials
may be Of such character as to prevent
the taint of criminality from attaching
to the transaction. But no man, who is
without balance to his credit in bank
or who has only an insufficient balance,
has right to draw checks for considea.
BILE amounts on that bank without the
knowledge or consent of the proper Off
cials, (and William n. Boggs was not
such an official, and with the intent
that the moneys OF the bank in which
he has no funds or insufficient funds to
his credit shall be applied to the pay
meht of those checks. The defendant
cannot be convicted unless he had
wrongful and illegal intent to injure or
defraud the bank, in drawing the alleged
fraudulent checks or some one or more
of them set forth in the Indictment and
therein alleged to have been paid since
April %, 1898. Whether or not he had
that intent is to be determined by the
facts and circumstances ani the sur
Ir-undings at the time he drew those
checks. II he knew or had good reason
In believe when lp drew those fpur