Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1898-12-22

funus or was oyerdrawn IN his account,
and that such checks were not to be
charged in tho defendants account,
but We're to be fraudulently concealed
from the proper bank officials until he,
the defendant, should make deposits to
meet them, the defendant had the
guilty intent to iniure or defraud the
bank. For such scheme, understand
ing or agreement, if it existed and was
carried out, as testified to, involved o
fraudulent and wilful misapplication
iof. the moneys Of the bank to Che
amount of such checks, and wrongfully
deprived the bank of the use and con
trolof such moneys until deposits sub
sequently made by the defendant, as
testified TO, covered the shortage thus,
created.
There is uncontraverted evidence In
this case that while the First National
Bank Of Dover received a small per-
centage on the balance in the hands Of
the reserve agents of the bank, not to
speak Of loans and discounts yielding
the bank o higher rate of interest, the
uncontraverted evidence in this case
is to the effect that no interest was
paid on the checks mentioned in the
consolidated indictment, as 1t now
stands, from the time of their payment
out of the funds of the bank until the
principal sums mentioned in the checks
were restored to the bank. So far as
the existence Of loss is concerned, 1t
is unimportant whether, on the one
hand, all the funds of the bank, or, on
the other, only portion of such funds,
are wrongfully withheld for any period,
groat or small, without recolupense by
WY of Interest or otherwise, for its
deprivation of the use and control of its
moneys during such period. In
other case the principle is thesanie,
although the loss may vary in degree.
Criminality under section 5, 200 Of the
revised statutes of the United States
does not depend upon the extent'of the
loss or injury to national bank. ''
ut is wholly immaterial in this case
whether the money alleged to have been
taken from the funds. of the First Ma
tienal Bank of Dover, and applied to
the payment of the alleged fraudulent
checks, Or any Of them, set forth in the
consolidated indictments, as it now
stands was so taken for tho sole use,
benefit and advantage OF the defendant,
or for the use, benefit and advantage
Of the defendant with others; and
it is also wholly immaterial whether
the money alleged to have been
taken from the funds of that bank
and applied to the payment Of the
alleged fraudulent checks for the
use, benefit and advantage of William
N. Boggs, was SO taken for the sole use,
benefit and advantage Of William N.
Boggs with others. Ii is also wholly
immaterial SO far as the guilt or inno-
<<f So, IL, na1
whether the alleged fraudulent checks
of the defendant set forth in the con-
solidated Indictment as il now stands,
were intended for the use, benefit and
advantage of himself, on the one hand,
of William N. Boggs, on the other, pro-
vided the evidence in the case supports
the allegations in the different counts
of the consolidated Indictment, as it
now stands, or some one or more of
them. In fact it is admitted, and not
open to controversy, that all Of the
alleged fraudulent checks remaining
for your consideration were drawn by
the defendant either for his own use
and benefit or for the use and benefit
of William N. Boggs, as heretofore
stated.
with respect to the question whether
William N. Boggs has been cofroborated
it is proper to call your attention to
the fnct that he has been supported in
statements made by him on the witness
stand not only by documentary evil
dence but by the testimony of witnesses
on mattersimaterial to this case. In
deciding upon the weight which should
be given to the defendant, on the one
hand, and to William N. Boggs on the
other, it is important that you should
consider tho inherent probabilities or
improbabilities OF the testimony given
by them respectively.
WBefore taking up the testimony of
William N. Boggs is the testimony of
The defendant credible or incredible?
the defendant has been member of
the bar OF Kent county since 1881, and
has been actively engaged in the prac-
tiee of his profession. The defendant
states that the interview between him
self and Boggs did not last longer than
from 10 to 10 minutes, while Boggs
states that ways and means by which
he might extricate himself from his
financial difficulty were fully discussed,
and that the interview lasted at least
three hours. Which of these two state
ments is the more probable?"
The Judge pointed out the difference
| between the testimony of Kenney and
that of Boggs on material, points, and
said:
while the defendant availed him
self Of hisiright to testify, he has not
stated thatshe did at any time prior to
| the flight of William N, Boggs maks
| any inquirypf the officials of that banl
as to The fidelity and regularity of Will
| liam N. Bnggs rs teller. 1t is admitted
| that. during this period the alleged
fraudulent checks set forth in the con
| solidated indictment, all of which were
signed by the defendant, were given
and paid out of the funds of the First
National Bank Of Dover, but the de-
PENDANT denies that there was any cor
rupt understanding with William N.
Boggs with respect to these checks.
William N! Boggs, on the contrary,
testified that these checks were paid
| out Of the funds of that bank pursuant
to an improper and illegal arrangement
OF understanding between himself and
the defendant. Why did not the de-
PENDANT with the knowledge of the evil
habits of William N. Boggs, and Of
tho fact, if he remembered it-and that
Of course, you will determine that he
had committed defalcation at, the
First National Bank Of Dover, deal
with Boggs without making suitable
inquiry as to his fidelity? In view OF
these circumstances which is the more
credible, the statement of William N.
Boggs or that of the defendant? II
the defendant believed that Boggs pos
sessed sufficient means to meet the
checks drawn blythe. defendant for the
use and advantage Of Boggs, why die
he draw those checks, instead of leaving
| Dn,,r,e, ~, ax,,Ix, Il io pu,n tnaanl FOR his