El Paso herald. (El Paso, Tex.) 1901-1931, 1916-04-22

~ Before DeBlhnAls 40 -
4 n morning. the defence, IN the
trial of r. r. H. Smith of Las Cruces,
charged with embezzlement OF inc
banks funds, filed motion Tor an an
atructed verdict I'm favor OF the ue-
PENDANT r,,1,---s.
'sThat the state has failed TO prove
there were any moneys OF the hll9S
State bank under the care, custouy go 80
control at any time, material 70 W
said Indictment, and particularly We
sum Of $3.50, or any part me- ~
which was then and there the suDJecl
OF embezzlemeut, and there is no slaI-
ute Of this state making the care, Gus
todv and control Of property an elS-
ment Of embezzlement. ana CUSTODY
and control OF property are not made
elements OF embezzlement
SAYS state Failed to show.
THAT the state has failed 10 snow
that the defendant at any time ma
terial TO the Indictment empel1leu
g4150 or any part thereof, Of the prop
ertv OF said bank, but at most mas
shown. If III has shown anything what
Boever I'm this regard. that the uele4u-
ant diverted from the account o. "a; "a
CODY, treasurer Of the scnool DullulAE
fund whether I'm good faith or Dau
faith. and whether in the honest or
feigned belief that said JacoDN n,iu
authorized the diversion Of $4l5V, the
money Of Jacoby, treasurer ana lleiS-
by not the money Of said bank
ssNot the Banks Money"
"That the money to the credit OF ia
CODY, as such treasurer. was JacoDy
money. and i'm no sense the bank 5,
That the moneys of the bank were NOT
under the care OF defendant by virtue
OF his employment. but as a matter OF
law were under the care Of the cashier
OF the bank at all times material 70
the indictment. That inasmuch as the
Indictment AYERS the pretended moneys
OF the bank were under control OF the
defendant having such control II VS.
in the province, permission ana prlNl-
lege Of the defendant TO take and use
the same within the aVermenL
That the state has failed TO prove
the nature of the alleged banking cor
poration as a bank Of discount, saw
ings bank, trust company or bank OF
loan and discount
THAT the state has mailed to prove
that the money alleged TO have peen
embeZzled was coin or notes. or how
much coin or how much notes. nor has
81 proved any money amount o. com
or any amount Of notes, to have been
embezZled."
Renehnn cites authorities.
Renehan spoke on the motion, cltlnB
authorities.
Holt said the state did not care to
answer the argument deemlng the law
so plain as TO require no arg umenL-
Motion Is OverruIed.
The court overrulcd the motion Tot
an instructed verdict the defence eN-
cepting TO the ruling.
The state Their asked permission 20
reopen the case for the ole purpose OK
Introducing the bylaws Of the bank
The bylaws are intended TO prove the
powers and duties OF the president
After the bylaws had been intro
duced. Rcueh1u moved again 70 IN
struct for the defendant The state
did not answer the motion and the
court ruled against the motion.
Rcnehan then moved that the state
be required TO say upon Whlch one or
the two counts of the Indictment; II
would elect to stand. Eenehan then
announced the defence would stand
upon the case as made 10y the state.
and go TO the jury without introduction
o. any testimony.
Argument BegIns. ia
Argument will he commenced TINS
afternoon and will be without time
limit. only Hamilton and Dale wiH
wife surrenders Jewels.
That Mrs. Blake G. Smith. wife OF
the defendant, Turner r. u. smith.
turned her diamonds and household
furniture over TO the First state pank
of Las Cruces, after its failure on Dec
8. 1914. was testified yesterday by La
faYette Clapp. receiver of the defunct
bank The witness said that after the
failure Of the bank, the defendant
turned over his automobile, his house
hold furniture and his wife's Jewels
10 the bank, to be applied i'm satisfy
ing the banks claims for his notes
and overdrafts.
in answer TO question bI COUNSEL ApA
defence, witness said he did not know
that the Jewels were worth $1,000; that
he was not an expert on the value OF
Jewels and that the Jewels never were
in his possession. He said the value
Of the household furniture was not
great What actually became Of Mrs
Smiths Jewels never was brought out
IN the evidence. Counsel for the state
asked the witness whether Mrs. Smith
had secured the return of the jewels,
or had petitioned the court 10 have
them returned. on the ground that they
were her own private property. The
court sustained the objection. TO these
questions. and the witness was not
allowed to answer.
As to smith Family Notes.
In further explanation Of the value
of the notes and Overdrafts Of the
members of Smiths family i'm the bank
AT the time Of the failure, witness said
he had been unable to find any prop
erty belonging to c. H. Hardin Smith,
upon which he could levy. He said,
however. that one Of the notes for $500
had been paid in full and that pay
ments Of interest and a small amount
on the principal had been paid on three
other notes for $500 each. He said
his investigation revealed that L. B.
Smith and w. A. Thompson are exc
cution proof The sum Of $4,000 had
been realized on the notes Of L. B.
Smith and W. A. Thompson, he de-
clared. The note that l. 3. Smith gave