The times. [volume] (Richmond, Va.) 1890-1903, 1901-02-08
.BREESE MUST
SERVE HIS TERM
So Says Court in Ashevi|e Bank
Case.
TEN YEARS. IMPRISONMENT.
Judgment or the Trial Court Af1irnnc.
by the Higher TribHual-lhc
Biuctiell case Dis1n .sscd.
Other Decisions.
EN- YEARS. IMPRISONMENT,


case OF William L. Breese, convicted or
embezzlins, wronsfuliy apstracting anu
unlawfuly misappruprlatlnS the fun"s
OF the First National Bank, OF ASH
VILE, \. c., was affirmed in an opinion
named down by Judge .Simonton IN the
United States circuit Court Of Appeals
here yesterday. Judge Con diasented III
tne opinion. 1t is not known whether
5reese's attorneys VIII carry the case 10
the Tilted States Supreme Court, but UNI
less that tribunal reverses the lower
courts, Breese will be compelled to serve
MS ten years sentence.
The court convened with Judges Golf.
Simonton. Brawley and Waddll on the
bench and many opinions We're rendered.
The BreeSe case was the most important.
The case was brought on writ of err
ror to the United States District Court
of the Western District of North Carroll
ma, the plaintiff in error, William +.
Breese president Of the First National
Bank, OF ASheville was charged with
violation of section 5209, +. S. L. s., the
Indictment containing siNty-siX counts
charging him with embczzlng, wrongful
Iy abstra citing and unlawIully misapply
ing monies and funds from the bank
The defendant entered a plea of not
guilty, a special order, however, having
been entered that such plea shall not OPP
crate or have the effect to prevent hin.
taking advantage upon motion in arrest
of judgment or on q motion for Il new
trial of all matters and things which
could be taken advantage of by motion
to Quasll or demurrer Upon motion in
arrest OF judgment or for a new trial, ali
such matters and things shall be heard
and determined as if the same were be-
ing heard upon motions to Quash or on
demurrer
This order was filed November 9th. 1897
and on Marctl eth, 1899 the defendant file
n demurrer to certain counts of the in
dictment, but the court holds that, strict
ly speaking, this demurrer as q de!nurrei
came too late after plea OF the genera
issue. The demurrer was oVerru!ed.
The case was tried before a jury, and q
general verdict Of guilty was entered
Many exceptions We're taken during the
progress of the trial to the change of Tie
trial Judge and to matters ACQUIRING whe14
and after the verdict was rendered.
THE COURTS OPINION.
Judge S.montOn, i'll his opinion, how
ever, says:
connected with the evidence tending to
show that BreeSe steadily overd,sw his
account in bank, knowing its totally M
solvent condition. all the testimony is rel
eyant. and so also the testimony alluded
to in the specification just spoken OF, as
that showed the liability of the bank. SO
when Aldrich. one OF the witness. object
Ell 10. testified that he had taken charge O
The bank for the Comptroller, that ne
foIInd on hand in cash $3.50 and that al
that ne could rsaliZe from the assets was
s7S52 the Jury could have light given TO
them as 10 the intent with which the
defendant oveGdrew his account. Proof OF
these collateral facts We're clearly com
,}etent. in order to discover the intent.
standing alone, the mere overdratt OF q
hank account evsn by the president. may
NOT be n criminal act. and from 1t by 1t
self one need not infer an intent TO IN
lure the bank. But when 1t Is SHOWN 1tiii.
AT the date of the ovc-draft the BANK was
h,r.lesslv iusolvent-that it was made III
solvent by reason of the fact that It's
assets we're notes of wholly irresponsible
r,ersons-that these notes had been useo
nv tf,e president in connivance with nls
cashier who was a director, ana WITH
another director, in order to give MN a
fictitious credit, and that 1T was USED
freely. there is room Tor inference .Ha.
abstract or misapply the MONIES 1unas
and credits of the bank
..rbe appellant complains of the unlaw-
fitness of the mode of passing sentence
anon him. He is only entitled to relel
from this unlawful feature. ana TINS III
will obtain if the court below De slFef
an opportunity for correction in that par
t.cuiar. Let Tie case NC ~ sti>
District Court, with instructions to pass
sentence on the appellant. William f
Breese, taking care that he be present
and that it is so stated in the record.
The lsiuefield Case Dismissed
The appeals in the case of Walter NJ
Sanders. appellant. US. Bluefield Water
Works and Improvement Company, appel
lee. We're dismissed. The case comes from
the Circuit Court of West Virginia
Charleston The opinion was rendered
by Judge Brawley.
THE essence of the controversy was tbs
right to pump water from Beaver Pont
Spring and deliver it to the town Of Blue
field This was decided adversely to tbs
plaintiff The rule is we'll settled ant
OF long standing that Judgment or decree
to be final within the meaning of tina
term as used in the acts of Congress
giving jurisdiction to this court on appeals
and writs OF error must terminate tnt
litigation between the parties on the mer
its Of the case, SO that, If there should b
afilrmance here, the court below wouls
/, haey nothing to do butte execute tn
judgment or decree 1t had alread!
entered"
Want of Jurisf1 jctioni.
The appeal taken BY Daniel 3. Coltran,
a,d us IA 1ttmoore building and Loan AS