El Paso herald. (El Paso, Tex.) 1901-1931, 1916-04-26
JUDGE s CHARGE
A CAREFUL ONE
Covers ALI Points in Smith
Case in Giving Jury Its
Instructions.

want Of private person, or OF any CO.
partnership, except apprentices. and
other persons under the age Of Is
years, shall embezzle or frauduIentIv
convert to his own use any money or
property Of another, which shall have
come TO ms possession or shall be I'M
der his care, by virtue Of such en-
ployment. he shall be deemed nv so
doing, TO have committed the crime OF
larceny
state Must Prove ID,
AS to the charge contained i'm the
first count of the Indictment. the court
instructs you that before the state
can rightfully claim n conviction i'm
this case, II must prove to your sat
isfactiOn and beyond a reasonable
doubt that on the 18th day of July.
A. D., 1914, or at some time within
three years next preceding the 18th
day of September, 1915, tint being the
date upon which this Indictment was
returned into court the defendant
did then and there embezzle or fraud
ulently convert to his own use the sum
Of $3.50. the same being the property
Of the said First State bank OF Las
Cruces, which property came under
the care Of Smith, by virtue OF his
employment as president OF said bank
ing corporation.
As To Reasonable Doubt"
IF you do not believe from the evil
dence that, or II you entertain rea-
sonable doubt as to whether the de-
PENDANT is guilty as charged in the
first count Of the Indictment. then
you may consider whether or not the
defendant is guilty in the manner and
form as charged in the second count
Of the indictment.
1.-THE statute of New Mexico under
which the charge contained in the sec
Ond count Of the indictment is drawn.
reads as follows: If any person who
shall be entrusted with any property
which may he fhp guhfnrf % larcauU
shall embezzle or fraudulently convert
to his own use, or shall secrete with
intent to embezZle or fraudulently con-
vert to his own use any such property,
he shall be deemed guilty Of larceny
II Guilt is Adjudged.
IF you believe from the evidence
beyond reasonable doubt that the
defendant did then and there
feloniously embezzle and feloniously
and fraudulently convert to his own
use the sum Of $3.50, or any part
thereof. then you viii find the defen-
dant guilty as charged in the second
count Of the indictment
''Embezzlement is a species OF lar
ceny. Larceny is defined to be the
taking and removal by trespass or
personal property which the trespasser
knows to belong to another, with the
fcloniOus intent TO deprive him per-
manently Of his ownership therein for
the sake Of some advantage TO the
trespasser; while embeZZzlement means
the taking and fraudulent conversion
to ones own use, or the secretion with
intent to embezzle and fraudulently
convert to ones own use. of property,
which includes money, with which
party has been trusted. or which he
has under his care by virtue Of some
employment or service.
" 'Fraudulently' means the doing or |
an act with intent TO cheat and de-
fraud.
Counsel objects.
AN apprentice Is a person bound by !
contract to serve another person in !
some trade. business Or profession, the !
latter person being also bound by con-
tract to instruct him i'm the mysteries !
of such trade. business or profession" |
Counsel for the defence filed an exc |
ception TO this paragraph Of the in |
structions.
you are further instructed that in !
this case there has been admitted for |
the state evidence concerning other /
transactions pretendedly by the detend- !
ant affecting or concerning the funds /
and condition Of the said bank, from !
time to time. and at different times. /
such as the Monahan transaction. the /
dealings Of alleged members Of tbs /
family of the defendant with the said 4
bank, the question of overdrafts, notes /
given by the defendant to the bank /
from time to time. and other matters
more or less similar.
Warned as to Evidence.
You are warned, however. that the l
defendant is on trial only with refer /
ence 20 the alleged embezzlement of the I
sum Of $3.50, or some part thereof and I
is not on trial for the alleged Monahan 4
transa ctiOns. or for the other matters I
herein mentioned; wherefore, you can
not convict him on account Of these /
other matters They were admitted in I
evidence solely for the purpose OF aid I
ing the jury TO make up its mind as to /
what was the intent with which the I
said sum Of money was charged against I
the account Of Mr.. Jacoby. For any 9TH
er purpose the evidence as to these
other transactions is wholly immateriaL !
and Il can not be used by you except /
within the limits herein set down.
Law of Fraudulent Convention.
THE statutes under which the two |