Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1901-12-26

euere mas hcluhlly Deen no oheating or
defrauding of the county treasurer, or
the receiver OF taxes and county treas
uTer. Ff
Attorney General Ward argued that
the county treasurer and receiver of
taxes are one officer holding one office /;
that The title TO the money had been
properly laid In the officer: that he had
right to the amount Of muney hs de.
posted; that the cheating of New
CAST county had occurred, and that
1t was proper to allege the cheating OF
an official OF tho system.
Mr. Hayes replied and held that the
variance 10 the proof sustained his
contention.
The court ret'red to consider the
motion. In about 20 minutes the court
returned, announced that grave ques-
tons had been raised, and asked the
attorneys to prepare TO present as full
argument as possible on them the
fol owing murning.
1t was evident then that the
points iaised by Walter ii. Hayes
and Levi q. BIRD, th defendant q
attorneys, claim 'ng variance be
tween the proof and the indict-
ment, had made an impression on the
court, and friends of the State feared
that the Indications were unfavorable
TO the State. The legal minds interested
hnd the n ght 10 which to go over the
problem and authorities in the case,
and they were exercised in that work.
When the jurors were called, Win
field s. Lattomus and j. Cowgill
Alston, did not appear.
1t was supposed they had missed the
cary train, and would be a'ong later.
1t was agreed to go on with the argu-
ment without waiting for them. They
arrived later The court gave each side
cne hour and % minutes for argument,
VIII oh would JUST fill the morning ses-
sion.
The understanding was that the broad
questions involved would be agued at
this time, and that this Argument will
como ,ude the discussion of the points
raised.
MIR. Bird handsd briefs to the court
and to Attorney General Herbert H.
Ward, who with Deputy "A ttorney Gen
eral Robert Fl. Richards, is looking
after the interests OF the State, and
then went on with bis argument. His
colleague, Mr.. Hayes, had spoken oI
ha, ing pile of authorizes as high as
the Court House, and the defence did
produce numerous yo umes from which
the speaker made citations.
What might be termed an early shock
was administered by Judge Spruance.
MI. Bird had been reading from the
statute 10 sustain an argument that the
county treasurer and receiver OF taxes
are separate officials as to certain
duties, and held that the cunnty treas.
surer had not control over the money.
Judge Spruanoe suggested the reading
of few lines ahead Of what Mr.. Bird
had read, and the effect of the lines, as
further suggested by tho Judge, was
that the official is a disbursing officer.
This was a ray Of hope for the State.
In his brief, Mr.. Bird set forth thai
the proof was lacking in the following
points
Horace q. Rettew never knew OF tbs
payment of the variant,
He had no conversation with Lynn
about it.
He never was officially or otherwise
deceived.
He deposited the funds, which were
mixed with other depos ts.
The funds were deposited to the
credit Of the county treasurer.
Rettew had no power to draw money
out by check or otherwise; was moi
even able to draw out his own salary.
The account OF the county treasurer
was kept in the ledger of the bank,
the same as othe, accounts.
The cash hook of II. q. Rettew was
a lrivate book kept by him or hi'
agent, and not book of the bank
In the course Of his citations, Mr.,
Bird read authorities to show thai
when man deposits muney in banl
he loses tie to the money, and Mr.
Ward said he would admit that if {
bank robber had stolen money from thu
Farmers Bank he would not allege III,
possession OF the money in der ositor
But Mr.. Bird held that the admission
did not go far enough.
Another shock administered by th,
court may be sad to have been in
suggestion of Judge Giubb that Mr.
Birds contention was to a private de
positor' and not as to statutory deposi
tor. This is straw as to the position
which the State may assume.
Mr.. Birds brief in full, follows:
/. We desire especially to call the court
attention to the following allegations In th
Indictment.
ta) That the defendant designing and in
tending to cheat and defraud certail
Horace a. Rettew, the said Horace q
Re.tew being the receiver of taxes AM
county treasurer of New Cattle aforesaid,
(bl In fnrtherance of the said false pre-
tence and rretences of the said design an,
intention OF the said John Lynn to chea
and defraud the said Horace @. Rettew, th
receiver of taxes and county treasurer o
said county as Aforesaid,
(c) In furtherance of the said false pretenc
and pretenees and the said design and in
tention of the said John Lynn to so chea
and defraud the said Horace q. Rettew, re
ceiyer OF taxes and county treasurer as afore
said, i.e+ s
fd) And in further pursuance of and b.
color, force and means oil said ialsc. pretenc
and pretences, and other design and inten
tion of the said John Lynn to cheat and de
fraud the said Hornce H.. Rettew, receive
of taxes and county treasurer as aforesaid
(e) The said defendant did then and ther
unlawfully, knowingly and designedly obtail
from the said Horace q. Rettew, receiver o
taxes and county treasurer for said Ne,
Castle country, as aforesaid, sundry coins
the money and goOds, chattels and propert
OF the said Horace q. Rettew, receiver q
taxes and county treasurer, as aforesaid
with intent then and there, by means of tn
premises. to cheat and defraud the sal
Horace g. Rettew of the said county, to tn
great damage of the said Horace g. Rettew
said receiver of taxes and county treasurer
aforesaid of New Castle county.
(f) That the said defendant then and Their
did cause and procure the said certain war
rant then and there to be paid in cash ou
OF the fund, cash and moneys then and ther
the property of ana in the possession of him
the said Horace g. Rettew, receiver of take
and county treasurer, as aforesaid,
2. The following facts atfirnatively ap
pear from the evidence of the State in thi
case:
(a) That Horace @. Rettew never kne,
anything about the payment of the warran
in question:,