The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1913-12-09

main attorney in the case. and Niles
Il koffel Of Bismarck are attorneys of
record. they being actively in the case
When 1t was tried two years ago.
FoltoWlng is the dissenting opinion:j
Fisk's Minority Opinion. i.
FISK, j. (d%issenting). I am unable
to concur in the conclusion arrived at
In the majority opinion. While I do
not disagree with much that is therein
said by my brother Bruce, and am
willing to concede that defendant,
under the record facts, was guilty of
the grossest Irregularities. and per-
maps embellishments, in the exercise
Of the trust reposed in him by the
people of this state, I am compelled to
the view that the jury, by it's verdictJ
IN legal effect acquitted him of the
crime charged in the information, and
attempted to find him guilty of anoth-
er' n distinct offense not charged
therein.
In this dissenting opinion I deem ia
unnecessary to consider any other
point in the case and shall merely en-
deaVor to briefly make clear my view
upon the one point above mentioned.
The verdict finds the defendant
guilty of embezzling the sum of S54.-
%: This Is the exact amount of the
interest check, Eek. 100 SEN to defend
ant at his request by the t1axton
bank, and it is entirely clear that
this check constitutes the item, for
the embezzlement OF which the Jury
found defendant guilty. The record
Enthusiastically demonstrates this to be
a fact. To justify the verdict, there
fore. the cour must be able to a
thai such item is embraced within
the charge contained in the informa-
ton, for, Of course, it Is elementary
mar q nnrGnn Honnn{ 1~oalI.. r.
Vlcted OF an offense of which he has
not been formally accused. The in
curry, therefore, logically arises as
10 whether such draft is embraced
within either count Of the informal
tlon! And this suggests the thought
that 1nasmuch as conceded1y.. but one
offense may be charged in such in
formation each count thereof must
necessarily relates to the same offense
or criminal transaction. merely stat
ing or alleging the same to have been
committed in different forms or me-
thods. turning to the information
We find that defendant is charged in
each count with having embezzled it.
M aggregating the sum of $60,43S.-
IL, and turning to the evidence of he
state in chief we find proof Of five
specific items consisting Of drafts
and checks a~ggregating that amount
~ lily SThty auA lOT WHICH sum de-
fendant, on January 3, 1914, held GER
tifcates of deposit issued by the
Bowbells bank, and it is strikingly
apparent that the check for S54.65
is not included therein. Manifestly.
the Same could be included there
in for the obvious reason that there
is no pretension that such item was
embezzled by depositing or loaning
the same or the proceeds thereof to
the BoWbells bank, and the items as
charged in each count, as before stat
ed must be held to be the same. for
otherwise separate ~offenses are al
legged. Therefore it cannor be cor
rectly said that count one embraces
the $54.65 item. This item was not
mentioned nor heard of in the states
main case, nor until near the close OF
the trial, and on the cross-examina-
ton OF the defendant on rebuttal
when the same was accidentally dis
closed. 1t Is stated in the majority
opinion that there is no merit in the
appellants contention that the testi-
mony as to the fact that the $54.65
Item was not entered upon the books
was elected in rebuttal. 1t is said:
The order of proof is largely within
the control Of the trial court and his
discretion must largely control. The
defendant admitted that he had rel
ceiyed the amount, and If is quite
conclusively shown that he received
it In the course OF a series OF fraudu-
lent transactions. On oss-e9amina-
ton he stated that he did not know
whether lit had been accounted for
or not, al the end Of the trial ard
on rebuttal the witness, Mrs. Mitchell.