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-
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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. Lane County Pioneer Dies.
SPRINOFTRLD, Or.. Feb. 8. (Spe-
of the Road
ivho owns one
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f
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k Mi --3
if
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MORRISON STREET AT SEVENTH
clal.) Benjamin O. McPherson. a pio
neer of Lane County In 1853. died at his
home here today, afred 6T. He crossed
the plains with his grandfather and
settled first In Marlon County. but
ThePRIDEof theBoulevard
CAsh the man
jilt iif
FRANK C. RIGGS
Packard Service Bldg., Cornell Road
Twenty-Third and Washington Sts.
mm
iv v jt v.. z I
later came to Lane County. In August,
1866, he married Mary Louise Simmons.
Eleven children were born to them, 10
of whom survive, together with their
mother.
ivho owns one