The San Francisco call., 1909-09-09
TOMALTY LOSES
IN ATTEMPT TO
EXCLUDE LEDGER
Damaging Evidence Against the
Former Chief Book Keeper
of City Treasurer
Deputy Attorney General Testi=
fies Regarding Confession OF
Alteration of Entries

TIE tolls began 10 tighten yester-
dav around James c. Tomalty, former
cbief book keeper for Treasurer Ban
tel. who is on trial in Judge Lawlor's
court on a charge of having falsified
public records. The prosecution dis
posed of mass of preliminary evil
dence. and yesterday afternoon the
testimony taken pointed straight TO the
guilt of the accused. David Davis,
former chief deputy and receiving
teller in the treasurer's of1ce, com
pleted his testimony and two other
witnesses were heard during the day
After two days of hard lighting
among the opposing attorneys over the
technicalities of preliminary and foun-
dation testimony. the general ledger
of.tle treasurer's office, in which book
are some of the entries on Wnlch the
charges against Tomalty are based,
was admitted in evidence. Raymond
BENJAMIN. the last witness to take the
stand. was the most important witness
the state has produced. AS chief dep
utv attorney general, it was Benjamin
who made the first Investigations
leading 10 Tomaltys arrest, and in his
testimony yesterday afternoon he be-
gan the recital of admissions made to
him by Tomalty concerning the max
ing OF false entries.
TESTIFIEs TO CONFESSION
Benjamin told of visit to the treas
urer's Office in October of last year.
when he examined number of the
books and records of the office, and
also testified TO 2 conversation at that
tine in which Tomalty told him that
he had written the alleged false entry
Of So sos in the ledger April Il, 1906.
the day before the fire. This is the
item which the prosecution claims was
raised from S605 by the prefiXing Of
the figure 5. 1t is also claimed that in
2 subsequent conversation with Benja
min Tomalty admitted that he had not
made this entry April l., he first
stated. but had written il in the ledger
subsequent TO the fire.
The motion Of the prosecution to ad-
NIT this ledger in evidence, with spe-
cial reference to several entries
contained in it, was met with deter
mined opposition from the defense. In
2 long argument which preceded Judge
Lawlors ruling the defendants attcr-
news called attention TO the fact that
the statute concerning the making OF
false entries in q public document re-
fers specifically to a document filed
or deposited" in the office of a public
official.
this phrase was that the document in
question must be one brought into such
Office depository. but the prosecU-
tion argued that any book or entry
containing such official records was
both filed" and deposited" in the
Office in which IL was used. A ruling
in favor Of the defense on this particu-
lar contention would have meant the
entire breaking down of the case
gainst Tomalty, and would have had
the same result as the sustaining OF a
demurrer. Judge Lawlor. however
held strongly with the prosecution
and the first turning point of the case
was passed.
DAMAGING EVIDENCE
Isaac Wertheimer. brother in law of
Postmaster Arthur G. Fisk, who is
Treasurer McDougald's principal bonds
man, was another strong witness for
the prosecution Wertheimer is now
cashier of the postof1ce, but was To-
malty's predecessor as book keeper in
the treasurer's office. He told of
spending some time in the treasurers S
Office instructing Tomalty in his duties
after his own term of Office there had
expired. Later, he made two visits to
the office and inspected some of the
books. including a number of accounts
in the general ledger. On the second
visit, in October, 1908, he testified that
he found several pages missing from
this ledger and called Tomalty's atten-
tion TO them. The latter explained he
So d, that he supposed the entries had
been transferred TO another account.
Wertheimer's reference was to the
eight pages which it is claimed were
removed from the ledger and destroyed
by TomaltY to prevent an inspection of
them from discriminating him. On cross
examination Attorney Herbert Choynski
sr.4-
tions with McDougald and Fisk Choyn-
ski tried in vain TO shake him in his
declaration that records covering A
period OF nine months were missing
from Tomaltv's accounts at the time he
examined them The gap occurred, he
said. in the account known as the
county clerks special account
TRANSFER OF FUNDS
Tnder cross examination David Da-
Wis told Choynski that at the time he
entered the treasurer's Office he found
it customary TO draw on one special
fund in case money was needed for i'm
mediate payments in another, and then
10 replace the money in the proper fund
on receipt of funds. as soon afterward
as possible. He said that he had con-
ssilted Mayor TAYLOR regarding this and
that the latter had told him that this
method was opposed to the technical
provisions of the charter, but that he
did not believe there was any wrong In
adopting il as method of handling
Office business. the transfer of funds
being only for a few days at a time.
just prior to the morning session
yesterday some hot words passed be-
tween Attorney Choynski and Theodore
KFtka. the handwriting expert who
IS TO be called as a witness by the
prosecution. Choynski charged Kytka
with smiling at witnesses on the stand
a nd Kytka told him just as vehemently
that he didnt know what he was talk
ing about The passage ended withou,
any further belligerence.
Adjournment was taken last night
until $3.50 o'clock Friday morning.