TITE SUNDAY OltEGOXIAN. PORTLAND, FEBRUARY 4, 1912. 10 WILDE ACQUITTED BY JUDGE'S ORDER Judge Kavanaugh Holds Crime of Embezzlement Isn't Shown by State. MORRIS STATUS UNIQUE Dosea Men Trjinf; Promoter In Favor of Freeing Defendant When State Rested End of llard Fougbt Trial Dramatic. (Continued From First Page.) Jurors, who had been tn the constant custody of a bailiff since January 2X entered the courtroom and took their seats In the Improvised Jury box. This was significant from the fact that In other than a favorable disposition of the motion, the members of the Jury mould not have been permitted to be present. First Pwlata Deelde Aa;nlnet, There was nothing; In the voice or manner of Judge Kavanaugh as he began his delivery that gave the slightest suggestion of Its effect. Taking up the three grounds on which the defense based its application for an Instructed verdict, he discussed each separately. First of the points raised by the defense was that the statute of limitations had run against the felony alleged. This was disposed of by the court adversely. . Th'e same dis position was made of the second reason assigned by the defense. It complained CRO.XOLOGT Or WILDE CASK. May T. 1907- Date of alleged em bezzlement. Jaae 0. First Indictment, alleging S90.0OO embezzlement, re turned July M-August 1. Inclusive. Pro ceedings for estradltlon of 'Wilde pending before OoT.mor Johnson, of California. August a. 1811. Wilde returns te Portland. August 22. 1B11. Corrected Indict ment substituted for original. August 25, 111. Demurrer to ta dlctmeot everruled. August 23. 1811. Wilde entered plea of not guilty. December 22. 1911- State furnished defense with bill of particulars. December 22. 111. Indictment re turned charting Wilde and Morris with embezzlement of 212.900 on an other deal. January 1. 112. Offices of District Attorney Cameron and Special Prose cutor Clark robbed. January s. 1012. Special Proeeca tor Clark mvaterlooaly shot at Salem. January 12. 1913. Case called for trtal before Judge Karanaugh. January 22. 112. Jury completed. February 2. 1811. state resta February 1-2. 112. Motion for In structed verdict argued and sub mitted. February S. 1212. Motion granted and Wilde acquitted. of a material variance between the al legations contained la the Indictment and the proof offered by the state. It was when Judge Kavanaugh reached the third and last ground urged by the defense In support of Its motion that the effect of the decision was learned. With breathless attention was the remaining and deciding part of the decision received. Jury Mr at be re Assise. At Its concluaion there was a pause for an Instant and then the audience end at least four members of the Jury. Messrs. Kalus. Mac Donald, Randolph and Tanner, applauded earnestly. The demonstration continued for a few sec onds, neither Jude Kavanaugh nor Bailiff Scott attempting to restore order. Mrs. Wilde and her constant com panion and intimate friend. Mrs. Bum mers, of San Diego, wife of associate counsel for Mr. Wilde, neither of whom had missed a session of the court since the trial .bearan. no longer were able to repress their feelings and wept for Joy. "Mr. Thomas, yon will please prepare a verdict In accordance with the court's decision. said Judge Kavanaugh. ad dressing Warren K. Thomas, associate counsel for the defense. The 'not guilty" verdict was pre pared by Mr. Thomas who banded it to Judge Kavanaugh who Immediately designated J. R. Tanner as foreman of the Jury. He . signed the document which was then read by Court Clerk Fields. Mr. Malarkey He Preeewt. Judge Kavanaugh foHowed the read ing of the verdict by formally dlscharg. Ing Wilde. The court also dismissed the Jurymen, after thanking them' for their patience and faithful service nn der the circumstances, which required that they be kept together during ths progress of the trial. Dan J. Malarkey. chief of counsel f the defense, was the only lawyer JURORS SIGN TESTIMONIAL PRAISING WILDE AND PLEAD WITH HIM TC MAKE PORTLAND HIS HOME. ' Immediately after returning their verdict of not runty under Instructions from Judge Kavanaugh. each of the 12 Jurors la the Wilde ease affixed his sig nature te a strong testimonial expressing his confidence la the Integrity of Mr. WUde. The same testimonial embraced a hearty Invitation to Mr. WUde to locate permanently In Portland, with the assurance that at all times he would have the "hearty Interest sad co-operation" of the signers. In affixing their signatures the Jurors Inclosed their names within a braee and added thla notation on the margin: "Jury. Our own verdict." The testi monial, which was submitted te the members af the Jury by H. K. Gilbert, a close personal friend of Mr. WUde. was prepared axd circulated among Port land business men prior to the commencement of the Wilde trial. The text of the testimonial follows: "As citizens who are proud of the growth of Portland and glory tn Its fair same and fame, we emphatically pretest against any and all attempts to prejudice or potsoa the minds of eur people sgalnst Louis J'. Wilde, who Is ene of California's most highly respected and representative business men. We believe he has bees wrongfully taken from his boms, family, friends and busi ness affairs and brought here for political and mercenary purposes. We be lieve the charges brought against him were unjust and malicious and should not be tolerated by any reputable and self-respecting community. We understand that Mr. Wilde was never at any time an officer or director of the Oregoa Trust at Savings Bank and bad so thing te do with Ita management la any way. All his transactions with It appear to be open and above board and he was commended by eur best citizens for his untiring efforts and his financial skill which enabled the depositors te realise the money they have received and we believe that had the Liquidation bee a conducted as outlined by Mr. WUde not a depositor would have lost a dollar. We Invite new blood And capital to come te eur city te build hemes sad establish business and we know that Mr. WUde would be an Invaluable asset to any community. Deploring the attacks that have been made, we sow. In order to. show eur perfect confidence In his Integrity, request him te make his home la oar midst, with the assurance at all times of ear hearty Interest aad co-operation.' SAN DIEGO PROMOTER ACQUITTED OF EMBEZZLEMENT ON INSTRUCTION OF JUDGE KAVANAUGH. 7 ! jZ ; . 1 J LOIIS J. WILDE. I : actively Interested In the case who was not present when the decision was giv en. The Instant the result was learned. E. Plowden 8tott. .partner of Mr. Ma larkey. who was 111 at his home, tele phoned the news to his associate. As the Jury filed out of the court room. Mr. Wilde met each Juror with a warm handshake and a hearty "thank you." Mrs. Wilde also shook hands with most -11 the Jurors. The fsct that some of the Jurors Joined In the applause following the announcement of the court's decision was not entirely a demonstration on their part that they were elated over the conclusion of the esse, as was learned from the IS men themselves. Bat Oae Against Wilde. The fact Is that when the opening statements to the Jury had been made, setting forth the line of prosecution and the contentions of the defense, the Jury stood 11 to 1 for the defendant. Before the state had concluded Its case, the Jury was a unit for the ac quittal ,of Wilde and would hare re ported such a verdict If the case had been submitted to them at the conclu sion of the state's case without any testimony being offered by the defense. It was a singular coincidence that Judre Kavanaugh selected Mr. Tanner as foreman of the Jury, for It was Tan ner who was the twelfth man to Join his associates in the belief that Wilde was not guilty of the crime charged. Just whai Influenced the Jurors In reaching the conclusion they did prob ably will never be known except among themselves, for, other than to admit "we were virtually a unit for acquittal from the start," none would say any thing of his deliberations with the other 11 men. Sperlal Preaersttoa Disliked. " After the Jury had been dismissed, however, part of a conversation be tween two Jurors was overheard. In which one remarked that he did not like the Idea of a "special prosecutor" appearing In the case and virtually conducting the prosecution. even though he was ably assisted by a dep uty from the District Attorney's office. Throughout the examination of venire men In selecting the Jury and In the subsequent cross-examination of the state's witnesses. Mr. Malarkey. of counsel for the defense, overlooked no opportunity repeatedly to remind the Jury of the presence of a "special prose cutor." and the fact evidently had something to do In developing the opin ions of the Jurors respecting the case and Its merits. The action of Judge Kavanaugh In directing the Jury to return a verdict acquitting Mr. WUde finally disposes of that particular Indictment against WUde. The original Indictment In the case, however. Is sUll on file, but Its dismissal Is merely a matter of form. Aaether Charge Pending. The Indictment on which Mr. Wild Was tried was an amended and cor rected copy of the original, the only difference In the two being that the first charged WUde and Morris with being officers of the Oregon Trust & Savings Bank, while the one on which WUde was tried charged that Morris was an officer of the bank and that Wilde aided and abetted him In com mitting the embesalement. There Is pending against Mr. WUde another Indictment in which he and Morris are Jointly charged with era brxxllng $12,500 of the funds of the Ore gon Trust A Savings Bank In connec tion with another telephone bond deal. This Indictment was returned by the grand Jury last December. District At torney Cameron would not indicate last night what disposition would be made of this case. In view of tha fact that this indictment Involves the same ques tions as tha one disposed of by Judge Kavanaugh yesterday. It Is not re garded probable that tha accused will be forced to trial on It. The position of W. Cooper Morris. In consideration of the acquittal of WUde. Is unique and lawyers hesitate to ex press themselves regarding It. So far as the records are concerned, Morris stands before the court a self-confessed embezzler. He pleaded guilty to the In dictment tn which he and WUde were ACQUITTED PROMOTER THANKFUL, ATTORNEY BOWERMAN EXPRESSES VIEWS, PROSECUTOR IS SILENT. Louis J. Wilde Knowing my complete Innocence and having confidence In the Oregon courts and Juries. I never at any time expected any result except a verdict of acquittal and a complete vindication. Naturally I am deeply grate ful that this unpleasant ordeal Is over with. I have nothing to say now con cerning thoae who brought about this prosecution. The victory achieved In this decision by Judge Kavanaugh and the further assurance on the part of the Jury that their verdict would have been the same, is as complete a vindication as any Innocent man could hope to receive. I am truly grateful to' my friends who have stood loyally by me throughout this trial which naturally has been trying and burdensome. To the disinterested publle I wish also to say I am conscious of and appreciate the fair and Impartial Judgment which it has passed on this case. Jay Bowerman, of counsel for the defense Before the commencement of this prosecution no court had ever held that transactions similar to those for which Mr. WUde was indicted constituted any crime whatever. Like transactions are matters of everyday occurrence and yet the most sealous prosecutors in the Eng-llsh-spesing countries have never so far ss recorded decisions as evidence that they see fit to brand as a felon any man who has done all the things with which Mr. WUde was charged. A moat careful search through the reports of the decisions of all the courts of the United States and all the British reports and all the standard text writers falls to reveal even one Beclslon or text book which even indicates that the facts relied upon by the prosecution were ever considered a crime. As attorneys we are conscious that Judge Kava naugh fairly and fearlessly discharged his plain duty. As one of Mr. Wilde's representatives. I also appreciate the oordtal assuranoe given by the members of the Jury that they Indorsed the decision by Judge Kavanaugh and that they would have returned a verdict of not guilty at the conclusion of the state's evi dence had the case been submitted then. The Jury wase made up of good, sub stantial and average citizens of this county. I regard the fact that the Jury as business men unanimously concurred with Judge Kavanaugh's legal opinion In the finding that Mr. WUde committed no crime Is conclusive evidence of the complete Justness of the legal principles Involved and the correct Interpretation of those principles by tha presiding Judge. District Attorney Cameron. repreaenUng tha prosecution, declined to discuss the decision of Judge Kavanaugh. Neither would he Intimate anything regard ing the plans of the prosecution as to the remaining Indictment against Mr. WUde. In this indictment Wilde Is charged Jointly with Morris with the al leged embezzlement of 12.00 of the lunds of the Oregon Trust - Savings Bank, growing out of a settlement between WUde and the National Securities Company for whom hs was acting as agent. Jointly charged with embexzlement of the (30.000 and became a witness for the state against WUde. It was ad mitted at the outset of the case that before WUde could be convicted. Mor ris would have to be proved guilty of the embezzlement Independent of his con fesalon. It la admitted by some law- Kyers that while Morris could be proved guilty of embezzlement wunoui mvuiv Ing WUde, the fact that the court held the evidence produced by the state In the WUde trial did not prove that the crime of embexzlement had been com mitted by him at all, leaves a serious doubt as to the status of Morris. It Is true he pleaded guilty to the embezzle ment. At the same time the state, according- tp the decision of the court, failed to prove that an embezzlement had been committed so far as WUde was concerned. The situation as to Morris raises what Is believed to be a condition that was never before pre sented In the courts of this state. CoasrrwtnJatloaa atonal Wilde. Within a few hours after Judge Kav anaugh had announced his decision yes. terday afternoon. Mr. WUde was In re ceipt of approximately 100 telegrams of congratulation from friends In San Diego and other Southern California cities. Of the large number received, he places an especial valuation on one forwarded to him by the newsboys of San Diego, whom be considers his chums. Annually on Thanksgiving day and Christmas, during his residence In Ban Diego. Mr. WUde has given these lads a turkey dinner, and at no other time In the year has a deserving news boy's wants not received Immediate and substantial response from tha banker promoter. The telegram prized so high ly by Mr. Wilde and forwarded from San Diego at 2:46 o'clock yesterday af ternoon, a little morohan an hour fol- PLASTERS Rheumatism in Shoulder can be relieved and cored by them. Also invaluable for Pains, Stiffness or Soreness of joints or muscles. Apply Wherever There It Pain. Constipation, BiHomtntti, Jndtftstum, ttc Brandreths Pills Enxinh Vtwtabim. lowing his acquittal, and signed by the secretary of the Newsboys' Association, follows: "We, the newsboys of San Diego, send our congratulations." Having business affairs to attend to, Mr. Wilde and his lawyer, Mr. Sumner, will remain In Portland for several days before returning to 8an Diego. gevea Lawyers la Case. For the state, the prosecution of Mr. WUde was conducted by District At torney Cameron, Deputy District Attor ney Fltzegrald and A. E. Clark, who was. employed as special prosecutor. Dan J. Malarkey was chief counsel for the defense. His associates were Jay Bowerman and Warren E. Thomas, of this city, and Charles E. Sumner, of San Diego. The Jurors selected In the case, and who, according to their own admissions, would have returned a verdict of ac-' qulttal had the case been submitted to them, consisted of: XI. M. Callwell. bill clerk Wells Fargo Co., SOW Ban Rafael. J. H. MecDonald, contractor and builder, 1070 East Fortieth South, O. F. Rampe. lineman. East Eighty-sixth and Bin Line road. Martin Settler, contracting painter, 422 Going. . . J. A. McArthur. merchant 10 Sixtieth avenue Southeast. W. o. Eaton, real estate broker, 78 East Sixteenth. K. e. Jackson, commercial traveler, 12(2 Belmont. L, A. LaJole, wholesale Jeweler, 1251 East Morrison. Charles A. Kalus, retired, 140 East Forty seven tli. J. W. Tanner, accountant, MO Weldler. c. Batchelder. assistant foreman Amer ican Car Company, M(S Bortawtclt. R. H. Randolph, contractor and builder, 4903 Thirty-second avenue Southeast. The text of Judge Kavanaugh's de cision follows: Limitation Period Not Run. At the conclusion of the state's case the defendant Interposed a motion for a direct ed verdict and based that motion upon three separate grounds: First, that the statute of limitations had run before this Indictment was returned and consequently that this criminal action Is barred by the statute of limitations; Second, that there Is a material variance between the allegations of the indictment and the proof offered and that the Indict ment falls to state the value of each par ticular article of the property which it is alleged was embezzled: and. Third, that the facts proved, or tended to be proved by the evidence, do not constitute the crime of embezzlement. Upon the argument much stress was laid on the first ground, upon the fact that al most five yeare had elapsed since the crime was alleged to have been committed, and that this placed the defendant at a great disadvantage, and that the statute, sec tion 177S. did not extend the time within which this Indictment might be returned. This provision of the statute was enacted In 1864, ss well as the preceding section, which prefixes the statute of limitation. There la a recent case In the State of Montana which directly supports the con tention of the defense that the statute of limitations hss run in this case. But be fore the statute of Oregon was enacted a similar statute was in force practically the Identical statute In the State of California, which had been Interpreted by a decision of the Supremo Court or that state as early as 1861. three yesre before the enactment of tbe statute In Oregon; and It Is a familiar rule, and one that has been frequently an nounced by our own Supreme Court, that where a statute has received an interpreta tion by the court of a state in which it Is In force before it becomes the law in this state, the court of thla state should adopt the Interpretation thus placed upon It. So I feel upon that ground we are bound by the decision of the Supreme Court of the Bute of California. There are other decisions, one In Iowa, one in Oklahoma and, I believe, one other decision, supporting that theory. So I think the first ground of this mo tion must fail. On the second ground, that is of variance and tbe failure to state the particular value of the different articles alleged to have been The BOSS QAsk the man ' m TTs W v FRANK IV7 y syi Packard Service Bids:., Cornell Road Twenty-Third and Washington Sts. embezzled, there are a great number of au- I thorltles that support the contention or me defense and perhaps a less nuraotr port the contention of the prosecution. There la a very instructive Ohio decision upon tnis subject which supports directly the conten tion of the state. Embezzlement Not Shown. In this case the defense demanded and ...... I .-.. - kill nt particulars Which I must assume, since there was nc complaint to the contrary. Identified the particular transac tion which was the subject of dispute, we have provisions In our statute that no In accuracy In the Indictment should be deemed material unless It nas actually iv.r.. nanv to his Injury: and in view of this bill of particulars and these statu tory provisions I think the second ground of the motion should also fslL The third ground, that tne zacia pr' or attempted to be established, conceding them for the purpose of this motion to be true, with such reasonable deductions as could be drawn from them, do not constitute the crime of embeszlement under our statute, has proved to be a much more serious ques- t ,t, jnt eomDlete and thor ough Investigation of this subject of which I was capable and able In the short time at my disposal, assistea materially uj li able counsel on both sides of this case. Case Tried Stands Alone. .i rnnniL Is frail, and In examining these authorities that have been presented, and-in an iiraejunoti" '""" tlon which I made for myself. I have not nv authority which holds that a case Involving the facts presented here comes properly within an emoeaiwnci.. such as ours. It Is remarkable that In all the reported decisions and in the various textbooks trestlng this subject, we could not And some pronouncement more pertinent to the real question- In dispute than we have. This applies to both the contentions or the state and the defense. There are general expressions In several Judicial opinions which at first view would seem to Illustrate and elucidate this question, but when the decisions themselves are ezamlned and the facts upon which they are based, you find almost Invariably that the facts are en tirely different, and very often these observa tions of courts ana iczi wruoi. concerning the plainest sort of a case of em bezzlement. . . At the common law there was no sucn crime as embezzlement, but In the course ol time It was found that larceny, the old common-law crime, did not meet the exigencies of more modern business methods. Origin of Law Cited. It occurred once that a bank clerk ab stracted some of the money which csme Into his possession, and upon trial In the English Courts he was acquitted for the reason that the -old common-law crime of larceny In volved the principle of-trespass or unlawful gaining of possession, and he could not be convicted because the money or other property came lawfully Into his possession. Following thst decision, an act was passed, the first act of embezzlement In England, and that, from time to time, has been enlarged In the course of the English practice. In this country, our crime of embezzle ment is purely statutory, and the different statutes are almost as various as the differ ent states. Oregon Laws Not Broad. . The Federal statutes upon this subject and i tntiita nf manv state which I have ex amined, are much broader in their terms than the statute of the State of Oregon. In our time and quite recently we have found that the statute of this state was not suffic iently broad to cover many questions that arose So It has been amended to Include the concrete case, and related cases, of an Insur ance agent who collected premiums In which he had a commission Interest, for the reason that he could not be convicted under the old statute because the Insurance com pany was not the sole owner of the prop erty. Another question arose about the ming ling of the property of the accused with the property of the owner, and this baa been provided for by amendment. There are some general expressions in the authorities where they attempt to define em bezzlement, that it Includes 'all wrongful appropriation by a servant of tha property of tha master, and theee expressions would seem at first to be sufficiently broad to cover the facts of almost any case where a serv ant directly or Indirectly had betrayed his trust relation. Offense Not Indictable. . But ss I indicated before, when we come to consider the facts upon which the decis ions are based and the decisions upon which the tests are predicated. It will usually appear that these decisions were based upon simple, ordinary cases of embezzle ment and that the language was used In distinguishing 'the crime of embexzlement from the old common-law crime of larceny. It Is unusual that facta Identical, or at least similar, to these presented here should not have gotten Into the courts and a con struction given by the courts as to whether or not they constitute the crime of embezzle ment. Tbe defense has claimed here that this failure Is significant, that It has prob ably been a matter of common Judgment of men that this kind of a case which, in our day. Is quite prevalent has never been Indict able under embezzlement statutes. I realize that my decision upon this mo tion is exceedingly Important, both to the state and to this defendant. On the one hand. If this case Is submitted to the Jury It must be my Judgment that a man who does the acts as they appear in evidence here Is an embezzler and a felon and Is guilty of a crime for which the only punishment Is imprisonment In the penitentiary. Upon the other hand, the aetata Is interested In honest testing and proper relations between master and aervant and those who go be tween them that there be no violation of trust or breach of confidence. But it la my view, and I must assume the responsibility for it, that before the court by its decision should say that a man under the particular circumstances of a given case Is a felon, the state should present some law or some reason based upon the law by which the court can be reasonably certain that, considering the facts to be true as a legal proposition they constitute the par ticular crime charged In the indictment. I am not satisfied upon that question from the record that has been presented here. I have found no authority that would satisfy me that the acta related In the evidence here constitute the crime of embezzlement, and I believe It Is my duty, a duty which I seldom exercise and which I am reluctant to exercise, to instruct this Jury, under all the circumstances, to return a verdict of not guilty. (Applause.) Gentlemen of the Jury, you are Instructed now, tn view of these considerations, to re turn a verdict of not guilty as to this de fendant. 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