The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1901-02-12
CLEMENTS MUST Do TINE
SUPREME COURT AFFIRMS CONVIC-
TION FOR LoOTING FILLMORE
>GOUNTY BANK
ONLY ONE FINDING REVERSED
Justus Ohage's Judgment Against
Union Insurance Company of
Philadelphia Lis Affirmed
Two Other Decisions.

Four decisions were handed down by
Justice Lovely, of the supreme court, yes
terday, three of which are of considerable
interest. The first two were in the cases
of Joseph r. Clements, convicted of loot
ing the Fillmore County bank. In both
Clements is the appellant and the state
the respondent. The lower court Is sus-
tained in the first case, which is known
as the Mrs. Mack Indictment" and
Clements will therefore go to the peni-
tertiary. In the second known as the
Olsen case" the finding of the lower
court is reversed. syllabus of the first
decision follows:
Under the provisions of chapter PIG, G.
l.. 1884, which makes it a felony for any
one connected with banking concern,
either public or private to receive de-
posits while such institution is insolyent.
1t is not material in what capacity the
interested or guilty party is connected
with the bank, whether as an ostensible
partner, or as a secret conspirator with
the actual operator of the same; provided
any substantial aid is gwen by him tend
ing to violate the statute in its spirit or
substance.
A formal dissolution of bankrupt firm
cannot control the subsequent responsible
ity of either of the former partners If
1t is executed as a sham to relieve one
of them, nor eXonerate the retiring part
ner from full accountability for suisse
quent acts in an unlawful plan continued
to receive deposits, during the insolvency
of the bank. In such case the dissolution
should be treated as an illegal and fraud
uient device.
When books of accounts, which are
material to an issue on trial, are properly
received in evidence. and being in court
open TO inspection of all parties require
long examination of many details It
is proper to receive balances or summar-
les from an expert witness who has made
the same upon proper foundation being
laid
Evidence of continual depletion of the
resources of a bank partnership continu-
ed for several years, is competent upon
the question whether an unlawful scheme
existed between its partners to wreck the
concern in failure and as showing a mo-
tive fol a sham dissolution as under the
claims in this case, whereby one of the
partners could withdraw therefrom such
portion of the funds for the guilty ben
eflt Of the partners to such unlawful
scheme.
No person can be convicted upon the
uncorroborated testimony of an accom-
plice, but such confederation is not re-
CURED to be sufficient, independent of the
evidence of such accomplce, to e5tab~
fish all the elements Of the crime charg-
ed, but should tend, in some degree to
show the guilt of the accused.
Evidence in this case considered and
applied to the testimony of an accom-
plice showing that there was sufficient
corroboratlng testimony independent of
the evidence CT such accomplice, whose
confession as a witness at the trial if
believed, established the guilt of the de-
PENDANT TO warrant the submission Of
the case to the jury under the rule laid
down in State VS.. Lawler, IS MINI, A6,
which is approved and followed.
Alleged errors in the charge of the court
defining insolvency considered and held
to be without prejudice to the defendant
while the remaining assignments are not
of sufficient merit to require specific
mention. Order affirmed.
The second indictment under the COM
plant brought by Olsen, in which Glenn
ents is charged with larceny. is held to
be insufficient for the reason that 1t
fails to allege facts showing In what re-
| spect the bank was not legitimately. con-
Quoted. Following is the syllabus:
State of Minnesota, respondent, VS.. Jo-t
seph R. Clements, appellant
An indictment is not insufficient by
reason of any imperfection in mere mat
| ter of form, which does not tend to pref
udIce the substantial rights of the ac-
cused, but the specific facts essential
| to constitute the elements of the crime
charged must be set forth with reason.
| able certainty to inform the defendant
| of the nature of his offense, which is his
| constitutional right, of which he cannot
| be deprived.
! An allegation i'll an indictment for OBJ
| tanning property-as bank deposits-upon
| the representation that the accused
was engaged in conducting g; usual,
| lawful and legitimate private banking
! business, traversed by the allegation
| that he was not engaged in or con-
quoting bani usual usual or legitimate private
| charge the crime of larceny under sub
| division l, section 6709, G. S. 1894 since
! it fails to allege facts showing in what
| respect such bank was not legitimateiy
| conducted, and involves in the issue pre-
sented for trial an open question of
| opinion depending upon inference and
conjecture as to what the criminal acts
alleged are. Order reversed.
Lovely J.
Inc verdict IN the lower court, award
ing Justus Ohage $1,000 against the
| Union Insurance Company of PhiladeI
! phfa was affirmed. The syllabus fol-
| lows;
Justus Ohage, respondent, VS. The Union
appellant
When an insured building is DESTROYED
| except portion of the foundation, If
| the amount of insurance upon such
! building, exclusive of the foundation is
! less than the policies thereon, it Is not
| necessary for the insured in the adjust
ment OF his loss to submit TO arbitra-
| ton.
When the description of the property
insured includes the foundation but no
| particular or specific sum is apportioned
| TO Sucn 1oundatfon, and the loss besides
! the foundation is greater than the
amount Of insurance fixed by the policy.
the demand for arbitration is not a pre-
requisite to recovery on the policy
Evidence considered and held that
| upon the course pursued at the trial, il
was practically conceded THAI the loss by
IRE, Exclusive OIL the foundation incl I'd
ed in the policy in this case, was great
er than the amount for which the prop
erty was insured and the order OF the
trial court directing a verdict vas right
Order affirmed Lovely. 7.
Following is the last syllabus:
Board of County Commissioners of Car
yer County, respondent, VS.. Gerhard
BenSard ct al, appellants.
1t Is not a necessary prerequisite to
an action on county treasurcrs bond
against the sureties thai leave should
be obtained of court to commence suit
thereon. County of Waseca VS. Shehan
ct al, AZ Mimi, 81 approved and follow
! ed in this respect
Neither is it essential that it should
appear in complaint in an actiul bv
the board of county c9mmissioners
against the sureties on sucn treasurer's
bond, that resolution to commence the
same has been adopted by the board or
| that settlements have Deen inada by the
auditor of the county with the default
ing treasurer, or that the state auditor
has authorized the commencement of
| the suit. Board of County Commits
sioners of Mower County VS.. Smith. %
Mimi, 81, approved and followed
The allegation that a county treasurer
| has converted the funds of the county.
that he has abandoned his office aud an
seconded from the county and state, and
that he has been suspended by the gov
ernor and his successor appointed states
the essential ultimate facts to show
that such successor was authorized to
make demand for the funds charse Ell
| to have been so converted III an act1on
against the sureties Upon the offic.qI
bond of such defaulting treasurer Or
der affirmed. Lovely