Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1899-04-06

under which Cotter was indicted and
explaining them, and pointing out the
punishment which would follow con-
viction, as was set forth in District At
torney Vandegrift's address yesterday,
Judge Bradford took up the counts in
the indictment upon which Cotter was
tried and explained each, Some Of the
counts charged tho defendant with aid
ing and abetting Boggs to abstract
funds of the First National Bank of
Dover; others charged that he aided
BogS!s to misapply such funds, and the
remaining counts charged Cotter with
conspiring with Beggs to commit an
offence against the government. The
judge told the jurors that in order to
find the defendant guilty there must
be no doubt in their minds as to his
guilt. If they consider that the facts
adduced are as compatible with YER
dict of innocence as with verdict of
guilt, then the defendant should be
acquitted. There must BIO a reasonable
doubt--not a whimsical doubt--to war
rant acquittal, where there is any doubt
at all. Absolute certainty, however,
IS not necessary.
The judge reviewed the evidence at
some longth, together with the allega-
tions in the indictment, and said
criminality does not depend upon the
extent OF the loss or injury to the bank.
Some evidence was permitted that was
not directly bearing upon the counts in
the indictment, in order to allow the
government to show, il possible, tho
intent of the defendant in giving
checks set forth in the indictment. If
the Jury believes that tho defendant
thought Boggs was paying his checks
with Boggs' money or the defendants
money, and not the money of tho bank,
then verdict of guilty cannot be
found. William N. Boggs has pleaded
guilty to abstracting and misapplying
the funds Of the bank and testified in
this case in the capacity of an accom-
plice, and the weight given such testi-
mony is to be determined by the jury.
The Jurors are to determine whether
Boggs has been substantiated or con-
tradicted by other evidence.
The jury was cautioned not to be in
fiuenced by heated argument or state
ments of counsel and should take into
consideration the interest Cotter had
in the case In giving his testimony,
knowing the strong Temptation of a
witness vitality interested in the result
to pervert facts. The judge also
directed the jurors to take into con
sideration the documentary evidence as
well as the oral testimony, and, as the
oral testimony would not be before
the jurors after they had retired to
their room, the judge read portions Of
it to them; SO much, he said, as might
be desirable for their guidance. At
teution was called to the portion of
Boggs' testimony 10 which he said he
told Cotter early in 1894 that he was
defaulter, but did not specify the
amount; that the defendants checks
were paid out of the funds of the bank
that when the defendant sent Boggs
money to pay checks they were returned
| to him; that such checks were not
entered up In Cotter's account in the
bank; that some OF the checks were for
| the sole use of the defendant, while
others were for the joint use of the de-
PENDANT and Boggs; that Cashier Bate
man ordered Cotter's account closed in
1886; that the payment Of the checks
was in accordance with an arrangement
between Boggs and Cotter; that on
May Sth, 1887, Cotter and Boggs dis
| cnssed the defaloation at Boggs' house
and Boggs showed Cotter statement
of the account between them; that
Boggs refused to deliver the vouchers
as he was unable to get the account
between them satisfied.
Referring 10 the defendants testi-
mony, the judge pointed out that Cotter
| said his first transaction with Boges
| was in 1888, when he borrowed $50 TO
be used In u race track operation; that
he presumed Boggs had plenty of
money; that Boges had told him he
would always be glad to help him when
he could; that Boggs told Cotter to use
his own checks and that upon being
notified he would put the money to
Cotter's account; that he was to use
the checks in the regular channels, as
Boegs would have several days to make
provision for them; that Cotter was
Interested in bringing about legitimate
real estate transactions for Boggs; that
the defendant never suspected that
Boggs was to pay his checks out of the
funds of the bank; that the defalcation
was not mentioned to the defendant
except on May sth, 1897; that tho list
of choclEs testified to by Boggs was not
shown to the defendant on May Sth,
1897, or at any other time; that the
defendant advised Boggs to apply to his
| friends for assistance; that he did not
know that Boggs expected a visit from
the bank examiner.
| One of the main points is whether
the defendant, with intent to defraud
tho bank, wilfully aided or abetted
Boggs to abstract or misapply funds Of
the bank. The defendant cannot be
convicted unless he had an intent to
defraud the bank in drawing the
checks. Ii he had intended to return
any money SO taken that would not
absolve him from guilt. No man is
permitted to abstract or misapply funds
of national bank, even if he intends
to restore the money.
LII there was an agreement between
the defendant and Boggs whereby the
checks were to be paid out of the funds
of the bank, then he is guilty. II is
not necessary that person should
have malice against bank. 1t is
wholly immaterial whether the funds
alleged to have been taken from the
bank to pay the checks was for the sole
use of the defendant or for the use of
the defendant with others.
The judge explained the meaning of
the words ''misapply" and "abstract''
as used in the indictment, and said it
was immaterial whether there was an
understanding concerning the payment
of each check out of the funds Of the
bank or general understanding.
The jurors were Instructed that if
they should decide that any one Of the
checks had been proved as being paid
according to the indictment, and were
satisfied OF the criminality in the trans
action, as had been explained, they
should find verdict of guilty as to
that one check. Or they could arrive