49 How. Pr. 462 | Court Of Oyer And Terminer New York | 1874
Gentlemen of the jury: The questions of law which this case involves have been passed upon by the court, and if the court is wrong in its position upon these various propositions the courts above will correct it. With our decision upon these' questions you have nothing to do. Your duty is entirely separate and distinct from'that which the court has performed, and you will pass only upon such questions as the court shall leave to you to decide. The questions of fact in this case will be left to you, and you will find your verdict according to your convictions upon these facts; or, rather, you will find your verdict according as the evidence satisfies your judgment these facts are. The prisoner at the bar, Charles H. Phelps, is indicted under the following provisions of the statute : “ Every person who, with intent to defraud, shall make any false entry, or shall falsely alter any entry made in any book of accounts kept in the office of the comptroller of the state,
“Hon. Thomas Raines, Treasurer:
“ Deab Sib. — The most painful part of the calamity that has overtaken me, and that I now write to announce to you, is the consideration of the extent to which yourself and Hr. Hopkins, or yourself and others may be included. I cannot recover from serious losses incurred in heavy grain speculations in the west nearly six months ago. I have carried the burden for so long from the simple fact that my figures as to the amount on deposit were never questioned. But the complaints by the banks of last week, and the consequent investi- . gations, necessitate my now avowing to you that I cannot make my account good. Exactly how much the deficiency amounts to, I do not know. I feel confident, if unmolested I can soon reduce the amount, and gradually and before long make it all up. And the better to enable me to do this, I*467 deem it wisest to leave Albany for a time, so that I can direct those efforts, which shall be ceaseless until restitution is made. A gentleman of New York city, whose advice I have had occasion to take, will, at my request, call upon you to confer as to any course you may suggest or wish pursued, or as to any possible way of saving yourself from ill consequences.
“ Respectfully yours,
“CHARLES H. PHELPS.”
I leave it to you to say from this letter whether the prisoner does not admit here the intent with which the alteration of the books was made, or rather whether he does not admit the intent for which the false figures were made. You are to say, first, whether he intended to include this $200,000; and if so whether he does not admit he made the false figures for the purpose of covering up the illegal appropriation of the moneys. If he did, he made the false entries with the intent to defraud. And let me here say in passing to you, is it not apparent, from the letter written to Mr. Raines, that very many imputations east upon that officer by insinuation are groundless and false ? If Mr. Raines had given any consent either directly or indirectly to the prisoner to use the money, would he have written to him in the strain he does ? Would he then say to him as he does, “ I have carriéd the burden for so long from the simple fact that my figures as to the amount on deposit were never questioned; but the complaints by the banks of last week, and the consequent investigations necessitate my now avowing to you that I cannot make my account good ? ” If Mr. Raines had given his consent to the prisoner to use the money, would he have made the avowal in that form ? However, that is not an important question for you to consider. I merely make that suggestion in passing in justice to a witness. You are to find with what intent was it made, if it was made. If to cover up any defalcation and enable him to abstract moneys, or to have the Mechanics and Farmers’ Bank pay it, or for any other fraudulent purpose, you will find him guilty.