New-York tribune., 1907-06-01
DECISION FOR BURNHAM
ANOTHER TRIAL ORDERED
Appellate DiUision Says Criminal
Intent Vas Not ShO1cn.

TIE Appellate Division of the Supreme Court
versed the conviction OF George A. Burnhan, jr.
Of the Mutual Reserve, yesterday, ordering a new
tial Of the case. The criminal branch of the su-
preme Court convicted Burnham who was a vice
president as well counsel for the company OF
grand larceny. sentencing him TO two years i'm
prisournent. Burnham has already served four
and one-half months Of this term in Sing Sing.
Justice Ingraham writes the opinion. all the
pther justices concurTing. Following the announce
rnent Of the decision Burnhan's counsel took steps
10 obtain his transfer 70 the Tonbs pending his re-
lease on bail probably. he said. Monday In
view Of the fact that George Burnham was the
first 'posu-Armstrong' Insurance official whom
District Attorney Jerome convicted, because too,
Frederick A Burnhana. his brother, and George D.
Eldrldge are under indictment similar charges.
the decision caused great interest N insurance cir
cles last night. The decision may also have
bearing on other cases now pending Of the people
against divers insurance officials
When a Tribune reporter called up the District
Attorney az his country home last night Mr Je-
rome said that that the first he had heard Of
the decision. He declined make any comment
or il
In closing his opinion Justice Ingraham says:
Ny conclusion IS. that the testimony as a whole
and that there were errors committed both in ru-
BY which the case was submitted the Jury that
require US 10 order new trial.
Elsewhere Justice Ingraham says that the case
= n
fair 70 the defendant
In q word, the concurrent opinion holds hat
criminal intent was not proven in Burnham's ap-
prcpriaticn OF certain funds meet outstanding
claims which the state held were personal obIiga-
tions OF Frederick A Burnharn his brother JUS
tice Ingraham says that there plenty Of evil
dence 10 show that the company would be benefited
by the wipng out of the claims. and that while
there was plenty Of evidence TO show that Burnhan
had been authorized by the executive committee
to pay them, there was none TO show that he was
not directed TO DO so, and the charge of criminal
intent seemed TO fall
Reference is made to the decision OF Judge Gray
In the Court OF Appeals in the case of George W
Perkins
Judge Gray held. says the opinion. that what
constitutes taking the property of another
Is the intention with which the act IS committed.
Cncer the statute, the crime of larceny needs as
an essential clement the intent deprive or de-
maud The charge Of stealing property is only sub
stantiated by establishing the felonious intent.
without II there is crime"
Justice Ingraham says that the case was without
he slightest evidence Of intention 10 defraud save
thst the action settled against the president
Individually He adds that by a ruling the case
was Jeff barren evidence 10 show that the claim
against Burnham not a company obligation
ss aaos that there were many errors also in the
oaer aeaSsIon 2i eklaenoe and that certain checks
el Insurance, would tend 10 create a prejudice
against the defendant in the minds Of the jurymen
ihT itafileu ulat 1udee must have TnlsconceiYed
ne statute, he says
sewsll T Tying. counsel for the Mutual Reserve
a. saa hurnhams personal attorney, said he hoped
" nae Nj Burnham out on bail on Monday
IA Inc Appellate Division sustains unanimously
q g. our contentious that the facts showed no crime
I snsL would justify jury IN finding a verdict of
auIty. ne said We regret that Judge O'Gor-
,MsA 70 whom we made the application for
nhcate Of reasonable doubt before Mr. Burnham
~ committed 70 prison, denied that application.
-. 80 would have acted a stay of execution
ssaoing the present decision and would have saved
state prison" "
MT Tyng added that Mr Jerome might carry
bs Gass 70 the Court Of Appeals, but that, should
SuO 50 ana the higher court affirm yesterdays
tsseAlon. there could be retrial. Burnham. who
t-S acquired a practical knowledge of the print,
saS saS business since his Imprisonment. over
;;sitLWhen 49, When told Of the decision unof1cially by