Evening star. [volume] (Washington, D.C.) 1854-1972, 1907-06-01
BURNHAM CONVICTION UPSET
NEW YORK APPELLATE COURT
FINDS IT LIKE PERKINS CASE.
No Evidence of Misrepresentation Of
Mutual Reserve Moneys-No In
dication Of Criminal Intent.

NEW YORK, June 1.-The appellate d.
vision of the supreme court in an unani-
nous opinion handed down yesterday re-
Versed the conviction of George Durham,
Jr., former vice president and general
counsel of the Mutual Reserve Fund Life
Association, who was convicted of grand
larceny as a result of his management of
the company's funds. Durham is in Sing
Sing serving out his sentence of two years,
but will be brought down to the Tombs
now for a new trial.
Burnham's brother, Frederick A. Burn
ham, who was recently forced out of the
presidency of the Mutual Reserve, and
George d Eldridge, one of the vice presi-
dents. are also under indictment on charges
similar to those against George a general
charge of conspiring to loot the company's
treasury having been made against all
three. Frederick A. Burnham and Ed
George has been tried again.
Errors of Trial Judge.
Morgan ]. O'Brien, who until a year ago
was presiding justice of the appellate di-
vision, acted as counsel for George Burn
ham on the appeal, and Assistant District
Attorney Robert C. Taylor appeared for
the people. George Burnham has been dis
barred by the appellate division. a pro-
ceeding which always follows the convic
ton of lawyer on charge of felony. In
opposing the disbarment proceedings Burn
ham declared that his counsel. Judge
O'Brien, did not believe that the facts
stated against Burnham in the Indictment
constituted a crime Apparently the APPEL
late division holds the same opinion its
former presiding justice. for Justice 1ngra-
ham, vocng the unanimous opinion of the
court, says that the testimony at the trial
as whole did not justify Burnham's con-
viction, and that there were also errors
committed by the trial judge. Justice Green
baum in rulings upon questions of evidence
and in the method by which the case was
submitted to the jury, which require re-
VerSal and new trial.
There were nine counts in the Indictment
against Burnham, but the district attorney
elected to proceed On only two, one accusing
ury of the Mutual Reserve and the other of
having conspired with Frederick A Burn
ham and Eldridge to misappropriate the
moneys of the association. 1t was on the
second count, a feonious conspiracy, that
conviction was mainly sought.
Proof of Intention.
This charge comes under the second SUBJ
division of section 52S of the penal code,
and Justice Ingraham points out that this
section has been under discussion lately in
the case of George W.. Perkins Of the New
York Life. In the Perkins case the court
of appeals held that without proof of in
larceny. Hence, says Justice Ingraham, in
the consideration of the. case against Burn
ham, I'VE must start with the proposition
that. to sustain this conviction, we must
find that this defendant appropriated money
Of the Mutual Reserve Fund Life Associa-
tion in his possession, custody or control,
to his own use or to that Of another per-
son. with intent to deprive Or defraud the
true owner"
Justice Ingraham reviews the testimony
and history OF the against Burnham.
1t was shown that in September, 1900,
lawyer named George E. Joseph who held
several claims against the company, and
who was a witness against Burnham, had
brought about a settlement Of one of these
claims for $135oO, of which $1,000 was paid
in cash and the balance, $500. held in
escrow till releases were granted by the
claimants. About a year later the claim
was settled finally, and a check for $500
given to Joseph, who got also a retainer as
future counsel for the Mutual.
The Burnham Indictment.
The indictment charged that the Burn
hams in authorizing the expenditure of this
81, 500 had committed larceny, and to justify
a conviction, Justice Ingraham says, two
propositions must be proved: First, that
Burnham misappropriated the $500 and.
secondly that the appropriation was done
with intent to defraud the association, or,
as Justice Gray of the court of appeals said
in the Perkins case, 1.-The people must prove
the criminal mind and purpose going with
the act.''
Justice Ingraham points out that Burn
ham as general counsel of the association
had charge of all litigation against it, and in
pursuance of that employment he made a
settlement OF pending litigation in the Jo-
seph case and paid in settlement money
that he had received from the company for
that purpose. The crux of the situation in
the Joseph case was that part of the claim
was for money alleged to have been loaned
personally to the president of the associa-
ton, Frederick A. Burnham, which should
not have been included in settlement out
Of the company's funds.