El Paso herald. (El Paso, Tex.) 1901-1931, 1916-04-26
DEFENCE RAISES
MANY POINTS
Several Points in Charge
Fail to Meet With At
torneys' Approval.

Of the Indictment In this case
c gu ,ira vvn use the language shall en-
be1zIe or fraudulently convert
I pe ~, Indictment in this case in both
cbarRes that the defendant did
S.cooia,iousIv embezzle and feloniously
nd fraudulently convert to his own
USE W., have been instructed as to the
law of embezzlement applicable to this
case and it now devolves upon the court
S,,.tber to instruct you as to the law
If fraudulent conversion.
A. to Defendants Guilt.
..Conversion means the wrongful TAX
inc Of the property OF another for ones
lir5 use and benefit. To fraudulently
49," L ,,ronertv means that such taxi
iIII,it+iner fraud upon the owner OF such
IIlroT,erfv You are therefore instructed
M If Won find from the evidence, be-
end n reasonable doubt, that the said
SSoofendant did wrongfully
tei,e Tor his own use and bene-
a. the aforesaid sum of S415O,
~ sorne norton thereof. the prop
or+,, of said First State bank Of
Tos Cruces or that such taking was
lone with intent TO defrauG said bank,
then the court instructs you that the
said defendant did fraudulently convert
such property to his own use. and it is
vour duty to find him guilty.
Another Objection Raised.
or Won believe from the evidence
bevopd a reasonable doubt that the
defendant. Turner r. II. Smith, was on
tbe 18th day Of July, 1914 the presi-
dent of the First State bank of Las
Cruces. and was acting as such on that
date then you are instructed that as
a matter Of law he was then an officer
and agent OF said First State bank OF
Las Cruces. and il you further believe
from the evidence, beyond a reasonable
doubt. that he was then and there
actively in charge Of the conduct and
management of the affairs OF said bank,
then YOU are instructed that by virtue
Of such employment he then had under
his care the monies and property Of
said First state bank Of Las Cruces"
Counsel for the defence filed an ex-
ception to this paragraph OF the In
structions.
Return OF Money Not Essential.
you are instructed that II you find
from the evidence beyond a reasonable
doubt that the defendant committed the
crime Of embezzlement as charged in
the indictment, the said offense was
complete as soon as the money mem
toned in the indictment was embez-
zled: and the subsequent return or pre-
tended or attempted return OF such
money so embezzled does not excuse or
extenuate the offense.
you are instructed that If you be-
Iieve from the evidence, beyond a rea-
sonable doubt that the money mem
toned in the indictment was at the
time OF the alleged embezzlement
thereof upon deposit in the First State
bank of Las Cruces to the credit OF the
aforesaid school building fund account
OF W. r. Jacoby. treasurer. upon open
account. that as a matter OF law, the
said money was the property OF said
First State bank Of Las Cruces"
To this paragraph the defence ex-
cepted.
The Intent of Defendant.
1.-THE term. open account as used
in the foregoing Instructions. means
funds upon deposit subject to check.
as distinguished from funds deposited
for a specific length Of time.
The court instructs the jury that
every sane person old enough to be
accountable for his acts is presumed
to have intended to do that which he
did do and to have intended the natural
and probable consequences OF his act;
and where his act is voluntary and
necessarily operates TO defraud another
he must be presumed to have intended
a fraud. and such presumption becomes
conclusive in the absence OF evidence
to the contrary"
This paragraph also brought forth an
exception.
Proving Intent.
The intent with which an act IS
done may be proved by direct and posi-
tive testimony, or may be inferred from
facts and circumstances surrounding
and attending the act as shown by the
evidence, and the intent with which the
alleged act Of embezzlement in this
case was done must be determined
from the evidence i'm the case.
Intent May BE Presumed.
The rule Of law with regard 20 intent is.
that intent TO defraud may be inferred
from wilfully and knowingly doing that
which Is illegal and which in its necessary
consequences and results may niure an
ether. The intent may be presumed from
the doing Of a wrongful. fraudulent or H.
legal act: and in this case. II you believe
from the evidence beyond reasonable doubt
that the defendant took money from the as
sets Of the First State bank OF Las Cruces.
giving nothing I'm return. and that such TAX
ing was without authority from said bank
and in violation Of law. and that the de
PENDANT attempted to conceal and cover up