The Wilmington daily Republican., 1901-12-19
MOTION TO
N0u-SUIT.
Bird and Hayes contend
that Lynn did not de"
fraud RetteW.

cs testified in the afternoon and
their evidence was listened to with
marked attention.
Whi,eman himself proved the stal
witness of the day and he gave test.
m0ny that caused the immense crowd
in the court room to buzz with ex.
element. lie denied empha liCally
thai he had ever done the work item
lied in the bill for S56, presented 10
his name, and declared he did not
submit the bill TO the Levy Court,
and had not seen the bill until it
was exhibited to him by Attorney
General Ward. lie also asserted that
he had never seen the warrant for
! $50, made payabl0to Whitcman or TO
bearer, and had never received anyof
thai amount for the work he was al
legged to have performed.
Furthermore, Whiteman declared
that on the night previous to the
day set for the preliminary hearing,
Mr.. Lynn had approached him in an
office at No. $50 Market street, aud
asker him "if he could fix this thing
up, land at the same time remarked
'if you have not got the $50, you
can get it. Whiteman testified that
Mr.. Lynn accompanied him in all
electric car to French street station
and while on the way Lynn offered
to pay him 5000 to fix this thing up
and also offered to pay ria car fare,
to all Of which Whteman declares
he made no answer and never men-
toned the propositions until he mar
rated them to Attorney General
Ward.
Such was the progress made during
the first day of the trial. that the
state got in all its evidence, tracing
the progress of the bill, presented by
Mr.. Lynn, In Whlteman's name,
through the Levy Court, the draw
ing Of a warrant for *56, aud the re.
ceipl OF that money by Mr.. Lynn on
presenting the warrant at the Cen
tral National Bank. The testimony
of Whiteman concluded the states
presentation, and Attorney General
Ward rested for the prosecution.
Immediately Levi Z. Bird and
Walter II. Hayes, who are counsel
for Mr.. Lynn; moved for a non-suit.
on the ground that the money alleg-
ed to have been received by Lynn
was not the property Of County
Treasurer Horace G. Rettew, as
ayerred in the indictment and theie-,
fore there WAS no cheating or de.
fraudlng of Mr.. Ret'ew. Mr.. Hayes
who urged the contentious for a non
suit raised the point that when tie
coul ty treasurer presented the coun-
tvs money in bank, he lost all con
trol, title and posses sion of the mon.
ey. Acknowledgement Ward argued
that lhe county treasurer had been
cheated, and that the money was in
his control and title, but the court
considered the questions at issue so
grave that they requested the oppos-
ing counsel 10 make full and co mplete
argument this morning, before the
motion for non-SuIt is decided.
Should the contentious Of Mr.
HAYES be sustained by the court. !be
states prosecuting officer would find
il difficult to frame an Indictment |
that would stand In law, and ON
which any person charged whimsical
ing the county funds could be brought |
to trial. The county cannot be made |
a party TO suit, and II the county |
treasurer las no title to, or control
of the county moneys, the only per.
sons remaining who could he alleged
TO have detrauded or cheated would
be The President of the Levy Court,
and the county comptroller who are
required to sign al warranisto draw
money from the county treasury.
In making the motion Mr.. Hayes
submitted his reasons to support his
motion for non.suit He contend.
ed that when the money was depOs-
tied by County Treasurer Rettew in
the Farmers Bank, The money lost
its identity and Mr.. Rettew had
neither title or ownership TO it. The
state does not a!lege that the money
was in the contrc! and custody OF Mr.
Rettcw. When lit was deposited in
the bank by Mr. Rcttew, ii was In
the custody Of the bank, and Mr.
Rettew thereby lost title and posses.
J ion to it, and the bank became
debtor to him. IT the. bank fails.
he argued Mr.. Rct,ew would lose
The money.
The intent alleged is to defraud
Horace G. kettew and IL the money
was not in the custody of Mr. Ret
,ew the intent cannot exist The
moment the county money went into
he bank, no act OF Mr.. l;e,tew's
,oud Affect that money. 1t could
'nly be drawn on 4 warran, CT the
president OF the Levy Court and
ounty comptroller.
What cheating or defraudiug Of
ir. Rettow is there ia this case!'
skcd Mr.. Hayes.
"Absolutely none at all. Tie teS-
Itied that he never saw that war
ant until it was handed to him on i
he witness stand {
Attorney General Ward in replyar-
ucd briefly the Poi,ts raised by Mr.. ,
laycs had often been settled. and
AitoN LuS W IlNN'S ! Z
he county treasurer and receiver OF /
axes, Mr.. Ward held. is custodian +
f the county money, and when he j
eposito it in a bank, IL is still in his i,
ontroi and virtually in hispusScSsion /
/ is true that when money IS placed I
, 2 bank. the dcpositor may not re. \
eiyc the Identical dollar or coin back l.
ut he receives The equivalent, and I,
Ierrforc retains control over his
honey.
After the judges had discussed the
JintS raised, Chief Justice Lore an.
oInced:
"The questions y'u have presented 6
nd argued are grave questions, aud :
ic court feels that ii would like to
ave theu fully argued. The court \
i'll give counsel over night to think |
yer The questions and to prepare to =
i.o g..ll l.