Arizona republican., 1904-11-02

created which could have no standing in law. Judge ThCmas quoted from a variety of authorities in which it was mainly shown that a civil action for damages could not be maintained for the recovery of money from one with whom it had been left for an improper or unlawful purpose. Judge Thomas spoke briefly in this matter and Dis trtet Attorney Baker replying admitted the proposition with reference to a civil action but he tool; the ground that one wrong could not be shielded behind another and that for the good of society the government could not be barred from punishing d thief from stealing from thie-
 He quoted two cases from EIassachU~ setts reports which seemed to be on all fours with this one and in them the supreme court Of the. commonwealth held that the crime was embezzlemenu.
 Walter Bennett for the defense de voted himself to the grounds Of the motion for a new trial and especially t0 the particular one relating to the question Of Intent.
 Among the grounds for a motion for new trial was a statement that since the trial new and material evidence had been discovered. It had been tes- tified at the trial by H. w. McDonn6Id that he had written the defendant de- neoading that ne turn the money over to the First National Bank of Arizona. TelegEar ms on this subject had passed between him and the defendant but he said that Ee had never received a re- ply to this letter. The defenGant had testified that he had never received such letter Since the trial the let ter had been found in his desk where it had been thrown with a lot of papers and had been overlooked and unopened by him. In that intact shape it was brought into court yesterday. The ob- Ject of the introduction of this new evidence was to show that the defen- dant had told the truth when he said he had not seen the letter.
 In the afternoon this letter was taken up by Judge Baker who said that it could not afford an excuse for a ne-v trial The contents Of the letter were already in evidence and the letter it- self could serve no other purpose than to show that the defendant had told the truth in at least one instance
 NIr. Bennett further argued the oues~ ton of intent at considerable length and when he concluded Judge Thomas resumed his remarks on the subject Of the unlawful contract. He preceded them, however, by another observa- ton, that if the defendant was an agent of H. " McDonnoId and he must have been such agent in order 10 have been able to commit en bezzIe- rlent. he was entitled to remuneration for his services. That proposition he said was amply supported by the books.
 Concerning the Massachusetts eases which had been quoted by Judg1 Baker. Judge Thomas said that they were not ap-Cpcz. The defendants in those cases had been indicted under the statutes oc Massachusetts in which the element Of trust is not necessary to the crime Of erabezziemect. It is not necessary in indictments for embezZlsment in Massachusetts to alleSe the chaIacte- of the fund or the relations between the defendant and the person fror whom he receives money. The mere conversion Of it Is embezzIz zment He PCinted out that in this case the defen- dant had been Indicted as aa agent and the mo-ey in hia possession had been desclibed in the indictment as a trcs. fund
 Continuing, Judge Thomas said that if there were law iu Arizona on en- bezZlement similar to the Maszachu- setts statute, still the defendant could not be held under this indictment for. according to the original proposition, an agency for the performance of a criminal act could not be created.
 When he had finished Judge Ken,
 said that he would take the moliCu under advisemeut. He dil not think he would be able to reach decision before Thursday morning. and he or dered a postDonement of the sen fencing Of Thomas to that time. BIr. ! Bennett said he desired to offer a mo- ton for an arrest of judgment. He was asked if it would be formal motIon.
 Mir. Bennett replied that it would not
 be, but would be fn the nature of a re- iteration of the demurrer and would
 require argument. Thereupon the cCur,
 recalled the order for postponeuent
 and set a hearing for this morning
 But it is not likely that the motion fer
 a new trial will be passed upon u-ti 7 tomorrow.