Charge of Judge Westbrook.
Gentlemen of the jury: As I do not intend to occupy very much of your time with the charge which I propose to make to you, you can remain seated and I will deliver it in rather an informal manner.
I am not aware, gentlemen, that this court has any feeling in this case, except the feeling to do ample and complete justice to both the prisoner and the people. I am unaware that any wave of popular clamor has reached our ears so as to vary [446]*446our conduct one hair’s breadth; and I trust that the jury can, at this moment, conscientiously answer such a charge in the same way. It is all important that each case should be determined in the court room, that justice should be administered here in accordance with the evidence given, and the law as laid down by the court. And if ever a different condition of society arises, it will be fearful for the country and for the people. In the administration of justice, however, the court has a responsibility and a duty as well as the jury. And that responsibility should always be discharged unshrinkingly, according to the dictates of conscience; and no court should ever hesitate to pronounce its judgment according as it deems the law to be, without regard to the consequences which may flow from such a decision.
In. the administration of justice, the decision of questions of law belong to the court; the decision of disputed questions of fact belong to the jury. The questions of law which this ease involves have been disposed of by the court.
They have been disposed of according to its best judgment, and, if the court is wrong, a higher court will rectify the error, but if you should undertake to acquit this prisoner because you think the court is wrong in the law it has laid down, a great public injustice will be done to the people, the consequence of which will be serious here and serious hereafter. The facts of this case are, in brief, these: On the 7th of August, 1873, Mr. S. Curtis Lewis, treasurer of the county of Miagara, undertook to pay to the state $7,500 of the taxes due from that county. He sent it on in the shape of a draft for that amount, purporting to be drawn by the Farmers and Mechanics’ Savings Bank of Lockport, upon the Central Mational Bank of Mew York. It was payable to his order as treasurer’, and by him indorsed to Melson K. Hopkins, comptroller, or order. This draft thus sent by him was received by the comptroller, and from the comptroller’s office it was undertaken, at least, to be transferred to the treasurer by an indorsement, which is substantially in these words: [447]*447“ Pay to Thomas Raines, treasurer, or order. Henry Gallien, second deputy comptroller.” When thus indorsed, it was either handed to' Hr. Phelps, who was a clerk in the office of the treasurer, by Hr. Gallien personally, or by a messenger from the office of the comptroller. Hr. Phelps having received it, as he unquestionably had a right to do, entered this- draft among the daily cash receipts of the treasurer’s office, upon a book kept in the office for that purpose. He also made a second entry upon another book, for the purpose of giving the county of Niagara a credit for the payment of that sum on account of its taxes due the state. Thus the state acquired the possession of this property. It was entered upon its books as the property of the state by the prisoner himself. His duty, then, was plain and clear, and that was to deposit that draft in one of the state banks of this city, which had been designated as depositories of the public funds. In place of doing this, as the undisputed evidence in the case shows, he made an indorsement of this character on the draft: “ Pay to Charles Hudson, cashier, or order. State treasurer, per C. H. Phelps, cashier,” and then remitted that draft to Frank R. Sherwin, whose cashier Hudson was; it was then deposited in the Bank of North America to the credit of Sherwin, so that the funds which this draft represents have been drawn and paid out, not into the treasury of the state, but where he has directed and ordered it to be paid. Now, the question which these facts presents is this: Is this or can it be a larceny ? The court charges this as the legal proposition which will control and govern your conduct. If you are satisfied from the evidence, that Charles H. Phelps sent this draft to New York for the purpose of converting it to his own use, he is guilty of the crime charged in the indictment; and I may add here that not only is there this evidence of its having been sent to New York and paid to the credit of F. R. Sherwin in the Bank of North America, but the admission of the counsel for the prisoner is that it was not deposited in either of the banks designated as the [448]*448depositories of the state money. It is further shown in the case that, when Mr. Phelps was in New Jersey, he stated he was unable to make up his deficiency. When he was asked what amount of money would cover this deficiency, whether $200,000 would cover it, he said he was unable to answer that question until he could refer to certain memoranda that were in the office of the state treasurer. He also said that, if he could be guaranteed his freedom for the space of thirty days he could return the most of the money, and if he could be guaranteed freedom for a longer period of time, some two months, he thought he would be able to restore all. He then professed to have part of the money under his control, but refused to tell where it was, or to restore it to the officer of the state who was then there for the purpose of making inquiries about it.
Hpon the evidence you are to find, first, whether or not these facts are true, or rather, more correctly speaking, you are to find, from the evidence in the case, whether the facts I have just stated be true, and, in the next place, you are to find what he intended by this. I concede that the question of intent is a question of fact for the jury, but, gentlemen, we judge of intent always, as has been well said, from what a person does. If a person puts his hand into your pocket and takes your pocketbook, and uses the money that is in it, refusing to restore it, what conclusion can you draw from it ? If a clerk in the office of an employer takes from the till or money drawer, money, and uses it, and refuses to restore it, what inference can you draw ? It cannot be any defense if the person takes the money intending at some future day to restore it. Such a discretion as that can never be committed to the unlawful taker of money. And it would be dangerous in the extreme to hold that, because the person who actually takes money says “ I mean to return it,” he did not mean to steal it.
It is necessary for you to understand that this draft could not be returned, and the money, or a part of it, he could not [449]*449restore when called upon, and the remainder he declined to tell where it was. Now, as a matter of fact, in the administration of justice, I must leave to you to find this question of intent, and I leave it to you; but I further say to you that, upon this evidence, there seems to be no material dispute, and you have no right willfully to disregard plain, sworn, uncontradicted evidence.
I further, charge you, gentlemen, that the prisoner had no legal possession of the draft, but simply the custody thereof, and whenever he took it for the purpose of appropriating it to his own use, he is guilty of the crime of larceny. It is a matter of no consequence whether Hr. Baines did or did not do irregular acts in his office. It is a matter of no consequence whether it was improper for Hr.
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Charge of Judge Westbrook.
Gentlemen of the jury: As I do not intend to occupy very much of your time with the charge which I propose to make to you, you can remain seated and I will deliver it in rather an informal manner.
I am not aware, gentlemen, that this court has any feeling in this case, except the feeling to do ample and complete justice to both the prisoner and the people. I am unaware that any wave of popular clamor has reached our ears so as to vary [446]*446our conduct one hair’s breadth; and I trust that the jury can, at this moment, conscientiously answer such a charge in the same way. It is all important that each case should be determined in the court room, that justice should be administered here in accordance with the evidence given, and the law as laid down by the court. And if ever a different condition of society arises, it will be fearful for the country and for the people. In the administration of justice, however, the court has a responsibility and a duty as well as the jury. And that responsibility should always be discharged unshrinkingly, according to the dictates of conscience; and no court should ever hesitate to pronounce its judgment according as it deems the law to be, without regard to the consequences which may flow from such a decision.
In. the administration of justice, the decision of questions of law belong to the court; the decision of disputed questions of fact belong to the jury. The questions of law which this ease involves have been disposed of by the court.
They have been disposed of according to its best judgment, and, if the court is wrong, a higher court will rectify the error, but if you should undertake to acquit this prisoner because you think the court is wrong in the law it has laid down, a great public injustice will be done to the people, the consequence of which will be serious here and serious hereafter. The facts of this case are, in brief, these: On the 7th of August, 1873, Mr. S. Curtis Lewis, treasurer of the county of Miagara, undertook to pay to the state $7,500 of the taxes due from that county. He sent it on in the shape of a draft for that amount, purporting to be drawn by the Farmers and Mechanics’ Savings Bank of Lockport, upon the Central Mational Bank of Mew York. It was payable to his order as treasurer’, and by him indorsed to Melson K. Hopkins, comptroller, or order. This draft thus sent by him was received by the comptroller, and from the comptroller’s office it was undertaken, at least, to be transferred to the treasurer by an indorsement, which is substantially in these words: [447]*447“ Pay to Thomas Raines, treasurer, or order. Henry Gallien, second deputy comptroller.” When thus indorsed, it was either handed to' Hr. Phelps, who was a clerk in the office of the treasurer, by Hr. Gallien personally, or by a messenger from the office of the comptroller. Hr. Phelps having received it, as he unquestionably had a right to do, entered this- draft among the daily cash receipts of the treasurer’s office, upon a book kept in the office for that purpose. He also made a second entry upon another book, for the purpose of giving the county of Niagara a credit for the payment of that sum on account of its taxes due the state. Thus the state acquired the possession of this property. It was entered upon its books as the property of the state by the prisoner himself. His duty, then, was plain and clear, and that was to deposit that draft in one of the state banks of this city, which had been designated as depositories of the public funds. In place of doing this, as the undisputed evidence in the case shows, he made an indorsement of this character on the draft: “ Pay to Charles Hudson, cashier, or order. State treasurer, per C. H. Phelps, cashier,” and then remitted that draft to Frank R. Sherwin, whose cashier Hudson was; it was then deposited in the Bank of North America to the credit of Sherwin, so that the funds which this draft represents have been drawn and paid out, not into the treasury of the state, but where he has directed and ordered it to be paid. Now, the question which these facts presents is this: Is this or can it be a larceny ? The court charges this as the legal proposition which will control and govern your conduct. If you are satisfied from the evidence, that Charles H. Phelps sent this draft to New York for the purpose of converting it to his own use, he is guilty of the crime charged in the indictment; and I may add here that not only is there this evidence of its having been sent to New York and paid to the credit of F. R. Sherwin in the Bank of North America, but the admission of the counsel for the prisoner is that it was not deposited in either of the banks designated as the [448]*448depositories of the state money. It is further shown in the case that, when Mr. Phelps was in New Jersey, he stated he was unable to make up his deficiency. When he was asked what amount of money would cover this deficiency, whether $200,000 would cover it, he said he was unable to answer that question until he could refer to certain memoranda that were in the office of the state treasurer. He also said that, if he could be guaranteed his freedom for the space of thirty days he could return the most of the money, and if he could be guaranteed freedom for a longer period of time, some two months, he thought he would be able to restore all. He then professed to have part of the money under his control, but refused to tell where it was, or to restore it to the officer of the state who was then there for the purpose of making inquiries about it.
Hpon the evidence you are to find, first, whether or not these facts are true, or rather, more correctly speaking, you are to find, from the evidence in the case, whether the facts I have just stated be true, and, in the next place, you are to find what he intended by this. I concede that the question of intent is a question of fact for the jury, but, gentlemen, we judge of intent always, as has been well said, from what a person does. If a person puts his hand into your pocket and takes your pocketbook, and uses the money that is in it, refusing to restore it, what conclusion can you draw from it ? If a clerk in the office of an employer takes from the till or money drawer, money, and uses it, and refuses to restore it, what inference can you draw ? It cannot be any defense if the person takes the money intending at some future day to restore it. Such a discretion as that can never be committed to the unlawful taker of money. And it would be dangerous in the extreme to hold that, because the person who actually takes money says “ I mean to return it,” he did not mean to steal it.
It is necessary for you to understand that this draft could not be returned, and the money, or a part of it, he could not [449]*449restore when called upon, and the remainder he declined to tell where it was. Now, as a matter of fact, in the administration of justice, I must leave to you to find this question of intent, and I leave it to you; but I further say to you that, upon this evidence, there seems to be no material dispute, and you have no right willfully to disregard plain, sworn, uncontradicted evidence.
I further, charge you, gentlemen, that the prisoner had no legal possession of the draft, but simply the custody thereof, and whenever he took it for the purpose of appropriating it to his own use, he is guilty of the crime of larceny. It is a matter of no consequence whether Hr. Baines did or did not do irregular acts in his office. It is a matter of no consequence whether it was improper for Hr. Baines to take his salary in advance, if he did so. It is a matter of no consequence whether he properly or improperly ordered funds to be sent to him at Bochester, while he sent drafts here to pay for them.
It would make no difference in the disposition of this case if Hr. Baines (of which there is no proof) had himself stolen money. An irregularity by one man cannot justify, extenuate or excuse a felony committed by another. Each transaction must stand or fall by itself. The court has not held that,’ if Hr. Baines had taken the money of the state and spent it, that he could not be tried for larceny.
That question is not before the court here now, and, whenever that question does come, -if it ever does, it will be met, and will probably be held contrary to the opinion of the district attorney, if the court is organized as now. Suppose it was true that Hr. Baines had been guilty of any irregularities in the office, it did not justify or extenuate the acts of the prisoner, if he has done that with which he stands charged, and which uncontradicted evidence proves. Neither is it necessary that the prisoner should have formed the intent to steal and appropriate this draft when it first came into his hands. It is enough that he formed the intent to convert it to his own use at any time, and actually did so..
[450]*450From all the evidence in the case, the character of his custody did not make him a possessor of the money in such a sense that the taking would not be larceny. Upon this proposition the court is clear, and so charge the law to be.
It has also been argued to you that, because this draft was unindorsed, it is an important question as bearing upon the question of intent to steal. 1 do not so consider or regard it. If there be any question of fact in that connection I leave it to you. As matter of law, I charge you, that an unindorsed draft or note is capable of being stolen. As, for example, I give yon my note and make it payable to your order, and you put it away in your house without writing your name upon the back. That note is your property, and if a man should go into your dwelling and take it therefrom and appropriate it to his own use, he would be guilty of the crime of larceny. Whether it would be grand or petit larceny, would depend upon the amount due upon the note. If it was more than twenty-five dollars, he would be guilty of grand larceny; if less, petit larceny.
Whether or not this man could legally part with this note is not an important question, and whether he thought he could legally part with it is not important. The question is : Did he intend to take it and convert it to his own use, and did he take it and convert it to his own use ? If he did, then he is guilty of the crime wherewith he stands charged.
'this is all I expect to say to you about this case. The court can have no more feeling than you in regard to it. The court does not blame counsel for the prisoner for the zeal with which he has addressed you ; it is natural and pardonable, but his feelings should not be shared by you or by the court. We are not partisans, but the administrators of the law, charged with solemn and grave duties, which we should see honestly and fearlessly discharged. The question for you to pass upon is : Did the prisoner take this draft with the intent to convert it to his own use ? Does the evidence satisfy you that he did ? [451]*451If he did, you are to pronounce him guilty of the offense wherewith he stands charged.
Of course, it is unfortunate that when a person commits crime, others may be affected. The axe of justice some times falls with crushing force upon those who are near and who are not involved in the relative’s guilt, but that must not prevent its fall. Public order, more or less, and the welfare of other families can only be maintained by a rigid, strict and impartial administration and execution of the law.
Gentlemen, I give the case into your hands, not doubting that you will render such a verdict as the facts of the case require.