Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1902-03-07
is INTEREST MONEY HIS OWN
claim Of Meserve in Motion to Direct
Verdict of AOquittal.
RAISES TEcHNlcALIn TO AVOID TRIAL
Lawyer Argues that state is Not DAM
aged when Interest on It's
Money Goes IRtO Pri-
vate Pocket. ,A

l.eaa = s-iG
A jury was secured for the trial Of John
B. Meserve at o'clock yesterday afternoon,
but there was no immediate use for it,
as the attorneys commenced arguing
point OF law, shortly thereafter, and have
so much to say that 1t will require until
at least noon today. The Jury was ex-
cused until D. m, and there is no certainty
that the court will be ready for 1t even
then, as c. j. smyth, who talked from 4
o'clock until o'clock yesterday. states
that he will want at least an hours more
time this morning and after that the others
will have a chance.
who the Jurors Are.
The jury that was excused had been Sc
cured after about four hours work result
ing in eleven peremptory challenges and
two dismissals for cause. AS finally made
up 1t includes Samuel Green, 2959 Poppleton
avenue; II. c. Straight, 3S0s North Twen-
ty-second, street car conductor; Paul G.
Stein, sos South Twenty-third, street car
conductor; Aberham Singer. 1249 South
Fourteenth, peddler; j. H. Cue. SIS North
Seventeenth, real estate; Thomas Lavless,
1912 Cunning, laborer; II. p. Hansen, 1923
Howard, saloonkeeper; H. A. Marsh, 2613
Davenport laborer; r. B. Rhodes lcolored),
2912 Seward, secondhand dealer; John Pet
erson, 3704 South Seventeenth. feed store;
S. c. Burlingim, SIC South Twenty-second,
clerk; Joseph Krsmlich, iii P, South
Omaha, cigar maker.
After the Jury was secured Attorney Gen.
eral Prout stated what the state proposed
to show. going over the ground as reported
In The Bee when the trial was first COM
menced February 20. Attorney Ed P. Smith,
for the defense, said that he proposed to
show that Meserve had accounted to the
state for every penny which belonged to
the state.
First Question is the Signal.
The first witness was then called in the
person Of John c. French. assistant cash
Ter Of the Union Stock Yards National
Bank Of South Omaha. but Immediately upon
his being asked the first question by the
county attorney, Attorney Smyth objected
to 1t as immaterial and this precipitated
the argument Of the point of law. The at
torneys for both sides said that the point
would have to be settled sooner or later
anyhow and that 1t might be we'll to have
1t out Of the way at once. for IL the court
should sustain Smyth, he himself cSntended,
il would bring the trial to an immediate
end and save the county the expense of a
prolonged hearing. The court accordingly
dismissed the Jury and the battle OF the
attorneys began.
! Alleges mo- oRense.
d GossssS ,faf Meserye seek to have Judge
I aass scs sYSis criminal court direct the
( Jury to acquit the defendant on the
ground that he has committed NO Of
tense against the laws of the state OF Ne
braska, declaring in explanation OF this
contention that the s., 900 interest on $4,000
of permanent school funds. which interest
he is alleged to have embeZzled, was mis-
own money and not the states. They prac-
tically affirm that Meserve deposited the
funds in the bank because there was at
that time no authorized place to invest IL
and no secure safe to keep 1t in, and that
Il is none of the states business if the
bank did pay interest to Meserve while it
was on deposit.
The argument of Attorney smyth is in
part as follows:
We, of course, deny, and always shall,
money belonging TO the state. either as
interest or otherwise, for which he has not
fully accounted to the state.
Treasurer Trustee.
Popularly it is believed that the state
treasurer is at trTstes ss and az SS is
trustees. But this is very erroneous no.
ton. While It is true that the treasurer
| is in his character more analogous to that
| of a debtor. The rules of equity which
i soin tely nothing to do With the % powers r and and
creature OF. the constitution and the stat
| utes. Equity not only permits, but COM
| mands a trustee to deposit his funds, and
/ IL he uses reasonable care in the selection
OF the depository or in the handling OF the
| funda and thew notwithstanding lnaf
ne How sS nGi 6iffeTent Il Is with treasurer. He
school fund, and though he use In the con-
| servation Of IL the greatest care, yet IL he
lose Il he is resPonIssi6ls Is , to the stste-he is
! from him. ''The fact" said the supreme
court of this state. in the case OF State
| funds have been stolen from the treasury
! is no legal justification for the failure OF
1he tSsS tTeS 10 Sesrs ISs bss been
/ law of the state, and Is the law today as
is shown by the very recent case of Hall
county against former Treasurer Thorn
sen.
Meserve Technically Guilty.
/ Mr.. Meserye's liability. therefore. is to
be measured ed by, by ne constitution con and the
supreme court. forbid him 10 deposit per-
manent school funds In any bank depos-
aepSsited @ the $4,000 Of % permanent st0s School ss
funds referred TO in the Indictment, he
! was technically guilty OF embezzlement
but the state suffered nothing thereby, for
I he at the proper time. accounted for every
| cent OF that sum.
/ Could Meserve have avoided this tech
| nical offense? No; empha ticalIy, no. He
was given $4,000 TO care for. None OF the
| securities which the constitution permitted
| the money 10 be invested In was available:
| the state placed at his disposal a little
/ 2x4 safe In which to place the money, but
\ a madman would not have left 10000, or a
/ tenth thereof, in such safe over night.
i urer even dreamed of such a fool act no
] Individual or bond company would touch
4 his bond; he could not qualify and the
| state would be left without a treasurer.
| There was, therefore, but one rational
! thing for him to do and that was TO place
4 the money in a hrst-class bank. where II
i would be subject 10 call al any moment
\ This he did. but IL was nevertheless a
/ technical embezzlement.
what Might he Done.
In case Of embezzlement, or conversion,
/ which in this case Is but another name
| for the same thing. the supreme court has
| said that the owner of money may pursue
| one of two remedies, but cannot pursue
| both-he may sue for damages and recover
/ as damages, a sum equal TO the amount
| converted with interest at per cent, or he
1 may pursue the money taken and recover
i II with Interest at per cent Neither
/ remedy was available 70 the state in this
/ case. for the money was at all times sub
/ ject 10 the states demand; was returned
| the moment the state needed 10 and the
/ --.e. Traf rofhfuo Nv de- Ian.sTs -