New-York tribune., 1906-05-26
VICTORY FOR PERKINS.
NO FELONIOUS INTENT. ,'
attitude of Jerome on "YelLose
DOG" Funds Question TndOrsed.

4ho NcOmnanW
,ts $4,000 contribution he made to the Repub-
r,an national campaign committee in 1904, on
s.salY of the company, at the request OF Presi-
,.,t Mccall, did not commit a crime for which
:. should be held for the grand jury. was the
-,.n,1ous opinion of the Appellate Division OF
=, Suprene Court. in a decision handed down
serday. The decision was on an appeal from
=. decision Of Justice Greenbaum dismissing
a. writ OF habeas corpus sued out by Lewis L.
o,a6eld. counsel for Mr.. Perkins, after the
,.,ter had been arrested on warrant charging
ND larceny Il was made clear, however that
=. .pstices believed the officers of the company
.7 no right 10 order such a contribution and
s,s, 2 civil suit might lie.
EIo,sing that there was no criminal intent in
.bo action Of Mr.. Perkins. even though he was
,soA-nresident and chairman Of the executive
.,nmlttee at the time Of the transaction, is
vsn6cation Of the original position taken by
yl..-iot Attorney Jerome when he defined grand
l,yoeny 10 the grand jury before Justice O'Sul-
rran. On account Of the controversy precipi-
ts,ea by ths attitude OF the District Attorney
che l2ter prepared the case against Mr.. Perkins.
usv5ll now appeal To the Court of Appeals from
,1s decision Of the Appellate Division TO have
.ba question finally determined. If the Court OF
annsals aairms the decision of yesterday, the
nsrrfct Attorney viii make attempt to get
snv indictments on account OF campaign con-
fHbutions made by other insurance companies
Ee would not discuss the question yesterday.
The main opinion was written by Justice
Chester B. Mclaughlin and concurred in by Jus
does Patterson Ingraham, Clarke and Laughlin.
Fach of the latter four also wrote separate opin-
ions Presiding Justice O'Brien did not sit in
the case on account Of his interest in insurance
affairs as a trustee Of the Equitable.
Justice Clarke said that contributions to
national campaign fund by insurance companies
are not wrong unless criminal intent can be
shown. On this point he said:
The federal government having no control over
,,Sr-sroe matters the contribution to a national
roitical PARTY for such purposes in national cam
Taen bv an Insurance company would not only not
te political crime, or crime in itself but would
Ing crminality. without alleging and proving a
corrupt or wicked motive ana q ieionlous or eva
intent There is no allegation in these papers OF
felonous criminal or Ni,hta mem nor u - el
any proof tending 70 establish such intent row an
al Believed be for the of the corporation Tor
ssneTai GOOD Of The country by the success of
rational party-an act not prohibited by the COM
eei na % s55-Ie s5 afr he eo@sE9rr INGREDIENT Of
uine. 10 wit criminal intent, do not see
Justice Mclaughlin. in the principal opinion.
after defining grand larceny, said:
Hthe facts set out in the dispositions upon which
@ @ 1ii Tbei v c@Tssint ~ with iI5icfal 81 deter
raaton am Of the opinion that such facts do not
establish that the crime Of grand larceny has
tsen committed. as the same is defined by the
Penal Code The defendant had a right to give
ul National Committee. The relator made the
c1-ibutlon al the request Of the president Of the
issuance company WIN ue express uhoeIslaLd-
tT hat i would repay him. The money belonging
s Le insurance company was approprlaIed open
hae been stated 70 the finance committee. TO re-
iTnevrse him for the money which he had previous
L was not stealthily taken The fact that the
Shelh vas drawn payable : the order Of J. P.
Morgan CO. and entered the insurance
eoLlpanys books is Of no importance, because It
knowledge II The entry in the comnanyss books
There Is not single fact stated IN the
fight 10 dnd-and If they did it would be the dStv
q lie court 30 set aside the fnding-that the re-
tt,er IN receiving the money in satisfaction Of his
CAIN fel7niously intended TO deprive the insur-
80 company Of II; on the contrary, the only in
ference which be drawn fairly is that he had
aHehI 10 take II 10 satisfy his claim
Justice Mclaughlin says that the contention
mat The money was received in trust and con-
rerlea by the relator TO his own use would not
hold. even though he was chairman OF the
finance committee. it was his duty TO see tha,
The prope.ty OF the company was preserved, bu,
his did not prevent him from receiving money
rom the corporation ia satisfaction Of a tust
claim, nor did it make him guilty Of larceny
i ne received money from the corporation in
tausfaction Of an illegal claim. if he believed
he had a right 70 receive II. He added:
4 nay be that the. payment to the defendant was
az ultra wires act ftfaJ Is beyond The powers 81
6e maintained By the corporation 10 reai ii Gou o
recover slcl money. "
On the question Of felonious intent upon which
he case had largely hinged hitherto. Justice Nc
Laughiiu said:
cca,. general IToposiHon, me intent Of person
- ing an alleged criminal is for the Jury
act gy-rf d. /
te criminal there are other facts and circlJm
t-.--ses which negative the existence Of C,iIn
ai intent. o- are consistent with inroeance tb6n
to-lt-tton cannot bc had, and II Is the dl1tSt ~
49, ., 80 told - matter OF Ian, whether the
~ II ne c-ese Of INC Peoples case
Justice Ingraaam said that if the contribution
l&d been made ~ an acr Of the corporation it.
sell 10 officer Of the corporation would have
'eeA la5ie for king the contribution He
added.
IAere was 70 eyldence before the magistrate that
- .,lIoralon mad not authorized the contribu-
80 ~ would seem that without some proof that
seon mat lie PRESIDENT had no authoriS "a
fir- ] 49,. q contribution on behalf Of the corpora
@olia.t,ed Ssol At no time did this reiator ap-
E'lI-ale any money of the corporation which was
- - as possession custody control as its officer
IL N-s.ee y was Mccall who appropriated
i1.3i.ey ~ the corporation and the officers OF
ts19.oyes OF l.e company who obeyed his direction
= ,ahiLg that payment. without intent 10 do more
@ ss eoroorat5n. we're not. ! view it, responsible
Ihe opinion Of Justice Laughlin is similar in
"Ae He concluded:
~. u eli of The policyholders did not authorize. OF
1S-l4, fl-s contribution. or reimbursement. the:
-s ie-atog wogld be liable 20 the company either
aA acton for money had and received Of for con
-cs.a1- although The Telator be liable clVily 10
---l lie money the corporation, II does not fol
tAaf ae is guilt. Cf grand larceny Or that there Is
R4lEant taking hin! into custody and deprivirg
-I u IS liberty.
10 The separate opinion Of Justice Patterson
Which is concurred in by Justices Mclaughlin
sho Clarke, he said. in part.