Evening star. [volume] (Washington, D.C.) 1854-1972, 1911-04-05
Regarded as Fair Inference.

out OF thirty counts, 1t Is not imprOba biz
to infer that they might have been per
suaded by the courts statement that th<
law did not require that the defendan,
be sent to the penitentiary to write guilty
as their verdict In the belief that the de-
fendant would be leniently regarded in
the matter Of sentence.
Province Of Trial Judge.
while 1t is permissible for the tria
court" says Justice Robb. Ito caution the
jury not to be influenced by the probable
consequence of their verdict, as all re-
sponsibility after verdict is with the court
1t is error 10 Put before the jury any con-
siderations outside the evidence that may
influence them and lead to a verdict not
otherwise possible of attainment. The
deliberations Of the jury should revolve
around the evidence before them and
should be uninfuenced by other consid-
erations or suggestions, otherwise the
verdict is a cOlored and false one.
THAT the learned trial justice in the
case was apparently endeavoring to over.
come the effect upon the jury Of remarks
of counsel cannot affect our decision
Justice Stafford's Remarks.
The language Of Justice Stafford which
caused the reversal included these state
ments: 'The statute does not require q
defendant convicted of embezzlement to
be sent to the penitentiary at ALL He
may be sent there. or he may be fined
or he may be fined and sent there show
ing, as said moment ago, the great
scope Of the punishment; depending on
the circumstances as they may be shown
to the court in addition to what has ap-
peared before the jury
Dissent Of Chief Justice.
In his dissenting opinion Chief Justice
Shepard cites the Rohde case which, he
says, decided the question Of liability of
Miller for the embezzlement of funds in
trusted to him as an officer of the as
sociation, adversely to his claim, and
declares he cannot agree with his as
sociates that the language Of the court
influenced the verdict. He expresses the
opinion that the conviction should stand.
THE charge objected to- says the
chief justice. Uniformed the jury, as il
was proper to do under the circumstances
that the matter Of awarding the punish
ment was the province of the court alone.
Grant that 1t would have been better to
make this simple statement without say
ing anything more, yet 1t seems clear
to my mind that the additional remarks
did not amount to an error for which
the judgment should be reversed.
THE language used was not intended
or calculated to- and, in my judgment,
could not reasonably have exercised
any improper influence upon the jury"
New Trial on Two Counts.
In addition to the error upon which
the reversal was based numerous other
errors were assigned. respecting which
the majority opinion Of the court says:
LAS q retrial of this case may be
had without the determination of the
other questions hero presented, we are
constrained, without move, to reverse
the judgment and award a new trial" "
The indictment against Miller contained
thirty-four counts. of which four were
Withdrawn from the jury. and of the re-
manning twenty-eight Miller was con-
victed on only the twenty sixth and twen-
ty-eighth. Accordingly the new trial or
dered will be had upon the last two men,
toned counts only. which charge en-
bezzlement In the aggregate 81, ,73S So The
total charge in the indictment amounted
to $4,000.
Attorneys Henry e. Davis and John
E. L.askey represented Miller and United
States Attorney Wilson and Assistant
United States Attorney Proctor conducted
the prosecution.