Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1902-03-12
MESERVEPROSECUTiON FAILS
Judge Baxter sustains Motion to Direct
Verdict Of Acquittal.
DEFENDANT WINS ON TEcHNlcALTnES
Court Holds that state Has No valid
Claim ON Interest Paid 60
Former Treasurer by south
Omaha bank.

Former Treasurer by south
Omaha BANK.
While confesslng from the bench that he
deprecatss the law that compels him TO do
It, Judge Baxter decided that tho prosecu-
tion in Douglas county Of John D. Meserve.
former state treasurer. on charge Of en-
bezzling $4,000 interest on $4,000 Of the
permanent school fund which he deposited
In the Union Stock Yards National bank OF
South Omaha, must stop. and the
Jury was instructed to return
verdict Of aoQuittal, because, ac-
cording TO the law Of the state, the interest
did not belong to the state Of Nebraska.
The judge ruled. also, that the crime
charged, II committed at ALL was committed
In Red Willow county. not IN Douglas
county. This practically sustaIns the two
| contentious raised by Meserve's attorneys.
In delivering his opinion the Judge said
II regret that such is the law, but II 10
not for the courts to make the law. but to
declare It, and IL the people Of the state
are dissatisfied with the principles enunci-
ated by our supreme court and that courts
construction Of our laws their remedy Is
by amendment to the constitution and 10
the law.
''The principles announced by Judge Post
in his dissenting opinion In the case Of
State against Hill to the effect that the
treasurer ought to be held liable as
trustee Of funds In his possession ought
to be the law and to the judges views in
such opinion l give my hearty concur
renee. But the supreme court has held
that 1t cannot, under our constitution
adopt such views insofar as our perma-
nent school fund is conoerned7"
Court Dodses No Point.
The Judge occupied nearly an hour and
half, or from 11:20 to 12:40. in delivering
his opinion. explaining that he wished to
dodge none Of the points raised in the
two and a half days OF argument.
AS to the question OF venue. raised by
Attorney W. s. Morlan Of McCook, the court
said that, assuming that the crime had been
committed, 1t must have been In Red will
low county, where Meserve first obtained
the use and control OF the interest on the
fund "our supreme court" he said, has
held that to prove embeszlement II must
be shown that the embezzler came into alb
solute ownership and control of the money
and in this case that could not have been
until It WAS credited to him in the First
National bank of McCook (the town 10 In
Red Willow county. because prior to that
time the transaction was not complete, for
had the bank been disposed to hold it
from him the fact that the South Omaha
bank had intended II for him would not
make him liable as having appropriated II
to his own use. To support this contention
the defendant cites a case IN the nineteenth
Nebraska ana after reading this am forced
lliteS held thst. t'ves crime charged. u COM
al, - a. -.
low county"
| Interest Not the states.
In approaching the other principal con-
tention, raised by Attorney c. J. Smyth,
| to the effect that the interest accrued did
not belong 10 the state. Judge Baxter took
up nearly all the various citations of both
sides, discussing the application Of each at
some length. AS to the feature Of en-
bezzlement the Judge said in part:
"At the outset in discussing this ques-
tion three propositions must be borne In
mind. First, that the defendant Is charged
with embezzling interest to the amount Of
5000 upon public funds In his hands. He
is not charged with embezEling the princi-
pal fund from which the interest was de-
rived. Second. that the fund upon which
the said interest is claimed to have been
collected by the defendant belonged to the
permanent school fund. Third, that ~ to
said fund our state constitution prescribes
| how It should be preserved, loaned and in
vested, and has thereby limited the power
| Of the state officials and even the state leg
| islature over said fund, thus distinguishing
! the permanent school fund from all other
state funds in the hands Of the treasurer,
and which constitutional limitations do not
apply to the other state funds In his
| hands"
state Cannot Ratify Loan.
The courts closing was as follows:
"The state cannot ratify the act Of the
treasurer In making q bank deposit be-
cause Of the limitation placed upon it's
power by the constitution and therefore IL
could not ratify this contract made by Me-
serve with the South Omaha bank whereby
the bank was to pay Meserve interest on
| the $4,000 Under the law OF the state
that would be an investment or loan of the
permanent school fund which would be
unconstitutional. Consequently, since the
state could not ratify the contract with the
South Omaha bank whereby the said bank
agreed to pay interest upon the said fund,
then the interest paid by the bank could
not in any event become or be the property
Of the state, because the state could not
recover 1t in civil action. Therefore the
$1,000 not being In legal effect under our
constitution money belonging to the state,
this prosecution must fall"
The jury returned a verdict OF acquittal
as instructed by the Judge. and the trial
came TO an end abruptly. Within two
hours an expressman was hauling away the
last evidence OF the hearing in the form
Of the state treasurer's books which Mr.
stuefer had brought with him from LIN
coin. Court Reporter Dickinson is prepar-
/ ing q record OF the ruling for Attorney