Richmond Palladium (Daily), Volume 40, Number 282, 8 November 1915 — Page 9

PAGE NINE

ledge's lestraetioos" to

Bent

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JI03E SPABu

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Gentlemen of the Jury: This Is an action, by way of a claim, ld by the plaintiff. H. C. Hasemeier Company, agaiast the defendant, the estate of Louisa F. Bentlage, deceased, for the sum of Sft.S74.30. Said claim allege that said turn rapreseats money had and received by said Louise P. Bentlage front said H. C. Hasemeter company on the various dates set forth therein, covering- the period of time from August 11th. 1908. to August 11th. 1914. inclusive. Said claim further alleges that said entire amount of money was had and received by said Louise F. Bentlage, during her lifetime, for the use and : benefit of said H. C. Hssemeier Com- . pany and that said Louise F. Bentlage unlawfully appropriated the same to herself while she was In the employ of said plaintiff company, as its cashier and book-keeper ' That payment of said amount was demanded of the administrator by said claimant, before the filing of this claim, and payment by said adminis- . trat r was refased. The burden of proving all the material allegations of this complaint is upon the plaintiff at all times. The nature of this action is such that it charges the commission of the crime of embezzlement on the part of the deceased Louise F. Bentlage, and this is one of the material allegations of the complaint. Therefore, before the plaintiff can recover, all the material allegations of the complaint, with respect to a part or all of the money . referred to in the complaint must have been proven by a preponderance of all the evidence; and as the complaint charges the commission of a crime on the part of the decedent, such evidence as a whole must preponderate in such a degree, as that it overthrows and outweighs the presumption of innocence; for the law presumes that the

safd Louise F. Bentfage is innocent of

such orlegsd crime until said presuniptlohjs overthrown by a preponderance of nil tho evidence. By a preponderance cT the evidence is meant the greater-weight thereof. You will have the conip'alnt with you in the jury icmii to read tor yourselves. TM defer dant denies that said Lnn":;e K. T' Mace received the money referred to in tho complaint, or any tart t!ieieof. and that the same ever came into her exclusive possession, end defendant further denies that said decedent misappropriated the same, or anv pa: t thereof. ' The preponderance of the. evidence must show, therefore, that the. money or some rart thereof, actually came into the? possession of said decedent, and

that she failed to account for and pay I

ovf-r the samo. If it is not shown, by a prercndsr.r.nec of the evidence, that paid merry or some part thereof bo traHy came into her possession, then there wrn'd bo no burden resting upon defendant to account for the same, but if a preponderance of all the evidence shows that said Louise F. Bentlage, as th cashier and bookkeeper Of plaintiff during the time referred to in the compTalnt, actually came into possession of the money of plaintiff or some part thereof, as referred to in the complaint, and that she failed to account for or pay over the same, then it wou'ri be the duty of thi& defendant to accciint for the same, and in the absence of such accounting the plaintiff would be entitled to a verdict at your hands for such sum so unaccounted for. Whether or not said decedent actually received the money referred to in the complaint, or any part thereof, or whether she misappropriated the same, are facts which are to be determined by the jury from a consideration of all the evidence. In determining such facts it is proper for you to consider the manner in which said funds were kept, and whether or not persons, other than Louisa F. Bentlage, had access to or control of said eums of money. Also the financial condition of said decedent at the time of her death, her manner of living and her financial condition, as shown by the evidence during the time referred to in the ccmplalnt. In this regard you may also consider the fact, if it be a fact, that decedent took her own life; the fact, if it be a fact, that she purposely made false or double entries in the account books of plaintiff, as a part of her duties as such cashier and bookkeeper; whether or not she made any willful misrepresentations or failed to properly represent to any officer or stockholder of the plaintiff as to the contents of such books, or as to any matter within the scope of her duties as such cashier and bookkeeper; you may also consider any letter or written statement she may have written to any officer or stockholder of said plaintiff company concerning matters within the scope of her said duties, and whether such statements are truthful or untruthful. And if, from a consideration of these things, together vith all the other evidence in the cause, you find that said decedent as such cashier and bookkeeper did receive the money referred to in the complaint, or any part thereof, and failed to account therefor, and failed to turn the same over to plaintiff but appropriated the same to her own use, your verdict should be for the plaintiff for such sum so appropriated, even though the evidence may not show what she did with this money, after said money was so appropriated by her, if you find it was so appropriated by her. But unless you find that she did actually receive said money or some part thereof and failed to account for or turn the same over to the proper owner, your verdict should be for the defendant. Evidence of mere irregularities, or discrepancies, or shortages in entries, , or the fact that decedent took her own ' life, are hot sufficient, in and of themselves, to make the defendant liable, or to require an accounting from her representative. Tfc evidence must go

further and show that said decedent actually received this money or some part thereof, and failed to account for or to turn the same over. But in

determining these facts It la proper

for you to consider such Irregularities, and discrepancies and book shortages, If such appear, and also the fact, If it

be a fact, that decedent took her own

life and If from a consideration of all the evidence you find that decedent was during the time complained of the cashier and bookkeeper of plaintiff, and that as such she had exclusive control of plaintiffs' account books; that she received and disbursed moneys for plaintiff in its business during said time; and if It appears from the entries made by decedent In said, books in the course of her said employment that there was an excess of receipts of plaintiffs money which came to her hands, if you, find it did actually come to her hands, over the disbursements made by her in' its business, which was not accounted for upon the said books, and which was not turned over by her to the plaintiff, the law calls on her, or her representative, to explain what became of such money.

Evidence may be either direct or circumstantial and while it is . true

that to entitle plaintiff to recover, a preponderance of all the evidence must show that the money referred to in the complaint, or some part thereof, has been lost to the plaintiff, and that decedent took and appropriated the same, yet these facts need not be proven by direct evidence, but they may be proven by circumstantial evidence. It is not . necessary that it be shown that decedent was actually seen to take and appropriate the money in question, or that she confessed to having done so. Direct evidence of a particular. fact or circumstance which forms a subject of judicial investigation. Circumstantial evidence is evidence cf other or collateral facts and circumstances from which the particular fact, which forms the subject of judicial investigation, is, or may be, inferred. Circumstantial evidence alone is suficient to support a verdict for plaintiff, providing such circumstances sufficiently strong, when taken into consideration with all the other evidence in the cause, including the presumption of decedents innocence, to constitute a preponderance of all the evidence. No greater-degree of. certainty? however, is required where the evidence is circumstantial than where it Is direct, for in each case, to warrant ; a verdict for plaintiff, the jury must find that all the material allegations of the

complaint have been proven by a preponderance of all the evidence. If you find that the decedent, Louisa F. Bentlage, wrongfully took and appropriated to her own use any of the

money of the plaintiff corporation of

H. C. Hasemeier Company which came into her hands as its bookkeeper and cashier, during the time referred to in the complaint, the fact that any officer and stockholder of the corporation overdrew either his dividend or his salary account; if in truth such withdrawal occurred, would in law be no justification to the said Louise F. Bentlage for such wrongful taking and appropriation upon her part. Likewise whether the plaintiff corporation was solvent or insolvent or whether it made or lost money in its business, would be no lawful justifiction for the wrongful taking and appropriation by Louise F. Bentlage of the money of the corporation which came into her hands as its bookkeeper and cashier, if as a matter of fact, the said Louise F. Bentlage did wrongfully take and appropriate such money to her own use and purpose. The defense has introduced evidence for the purpose of proving that prior to the 12th day of August, 1914, the reputation of the decedent Louisa F. Bentlage for honesty was good, and this fact is admitted by plaintiff. The law presumes that one whose character for honesty is good is less likely to do and commit the acts alleged in the complaint than one whose character in those respects is bad. ' It is therefore proper that you should consider thiB evidence In connection with all the other evidence in

the cause in determining whether

or not the said Louisa F. Bentlage did

and committed the acts as alleged in

the complaint, and you should give this evidence such weight for that purpose, as you think it is entitled to

receive; and if after considering all

the evidence in the cause, including!

that of good character, together with the presumption of innocence which the law presumes 'on the part of Louise P. Bentlage, you find that all the material allegations of the complaint have not been proven by a preponderance of all the evidence,1 you should find for the defendant. But good character does not license the commission of crime, and if after considering all the evidence in this cause including that of good character, together with the presumtions of innocence, you find that, all the material allegations of said complaint have been proven by a preponderance of the evidence, then your verdict should be for the plaintiff. If you find for the plaintiff you will award it such damages as in your judgment, a preponderance-of the ev-i dence shows it to have sustained by reason of the acts complained of. If you find Xor the defendant, so say by your verdict. You are the exclusive judges of the weight of the evidence, and the credibility of the witnesses. It is your duty to consider all the evidence and determine what facts have been proven, or not proven. If you meet with conflicts in the evidence, you should, if you can reasonably and fairly do so, so reconcile them as to believe all the testimony of all the witnesses. If you cannot so reconcile the evidence.' then you have the . right to believe that

which you think most worthy of credit, and disregard that which cannot be reasonably and fairly reconciled therewith. - !-vv- -

"In , determining the -? credibility of any witness and weighing..' his testimony, it is proper for you to consider his appearance, conduct and maimer of testifying, while on- the witness stand; whether his statements are reasonable or unreasonable.-: consistent or inconsistent, and whether they are corroborated or contradicted by. other evidence which you deem, worthy of credit; the extent of his-intelligence, his knowledge and. means of knowing of the matters stated; the attention he

gave- to such matters, and', his recollection thereof whether good or bad; his interest in .the result of this' cause, if any, and the' nature and extent of It; whether or not he has any feeling, bias or prejudice for or against the plaintiff or the defendant And any other- fact' or circumstance, shown by the evidence which front' your experience and observation, you believe will aid you fa arriving at the truth In this cause, may be considered, and given such weight as you think it 'is justly entitled to. When you retire to your Jury room to deliberate on. your verdict, appoint one of your members as foreman. It

will be his duty to sign your verdict, when agreed upon. When your ver

dict shall have been signed, return tt

into open court.

WILL M. SPARKS, " Judge.

LUTHERAN EDITOR 5, CALLED BY DEATH The Rev. ' Sylyanus Stall., editor , of the Lutheran Observer, which has an extensive circulation in Richmond, died Sunday at ' Atlantic ' City from heart trouble. His home was In Philadelphia. He had gone to the seashore-to-recuperate.'"'- - - -

PENNSY BEMOVESDEPOT FOUNTAINS

The Pennsylvania railroad ban removed the drinking fountains at- the depot and has installed Ice water faucets with sanitary drinking caps at penny apiece instead. There is a state law In Ohio which forbids drinking fountains and as the

company had to take them out there!

the same plan is being used over the system to gain uniformity.

Chinese exports of firecrackers to the United States are yearly diminishing. '.

YEG3:.:HI GT S5.C3

Mt artnt

work. The

at the

CHICAGO. Not.

Mew two safe-In the Camel FUm company I

obtained tS for their

room where It did ILMO damage to several motion picture machines.

. Thieves who robbed the ante m H. H. Karson Bro.'s wholesale, dfiar

store obtained $301. but left 1199 m negotiable checks.

New Jersey has twenty-three cities: under commission rule.

MUTT AND JEFF

By EUD FISHER

( GEE! THIS SJATVR-KU

HlSTOCti? SANS HT COWS MNfT. &OT

Coot cm J x OUNNOY f Because eElTH1- ,k

i i m m Ban v . i ' a m

,. 1 .IT MT I I A I . i, I II VO I V I I

Guess this one: Why is "Tux" the one non-bite tobacco? Sure! you got it because no imitator has ever yet solved the riddle of the "Tuxedo Prbcesr " of course.

it

for Pip and Ctgmttm

That "Tuxedo Process,"

time.

long

bud fisher ; v:"i famous CertoMttt. $ys -.'' . ' "Tuxedo has made a pipe mu .favorite form of smoking. Its coolness ana mildness make piptmoktog a real pleasure. "

YOU CAN BUY TUXEDO EVERYWHERE Convenient, glassine wrapped, Famous green tin with gold moisture-proof poach . . . uC lettering, curved to fit pocket In Tin Humidors, 40c and 80c In Class Humidor. 50c and 90c THE AMERICAN TOBACCO COMPANY

10c

i 2

by the way, has had 'erri all guessing for a It was invented by a physician years ago,

and it remains today the original and best process for making tobacco mild, wholesome and healthful, and for removing every; trace of bite. Join the thousands of happy pipe-smokers who have learned that Tuxedo, brings comfort, contentment and satisfaction. Try Tuxedo for a week.

Will You Get Your . Share of That cp

s

AT

RATLIPS

Out of The V.

High Rent District , No: 12 North 9th Str '

,3UY HERE AND

FOR LESS

Second Hand Clothes for Working men Sold at Crawford's 313 North D Street.

PaUadium Want Adit M

1

Jim stuinrs Fifty Suits selected from this season's line, will be placed on sale Wednesday morning, Nov. 10th, at

ilLSoOO'Efflielhi.

These are $20 and $25 values and will be on sale Wednesday only We will also offer some alluring values in WAISTS AND HOUSE DRESSES

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