Page images
PDF
EPUB

136

137

Objected to as immaterial and irrelevant.
Objection overruled. Exception.

C. You are not sure, are you, for certain whether you called his attention to the fire loss or not? A. I think I did.

Q. Will you swear that you did? A. I cannot absolutely swear that I called his attention to that fire loss. I remember appearing in the police court as a witness also.

Q. And do you remember this question and this answer: "Q. Did you call his, Ogden's attention, to any particular item of the account and state that Mr. Butler would not stand for it? A. I do not exactly remember whether I called his attention to the fire loss or not, but I called his attention to the matter of salary"? A. Yes, sir, I remember that, that is substantially my testimony today.

RE-DIRECT EXAMINATION by Mr. Freed

man:

Q. You told Mr. Ogden some time prior to his discharge about disallowing this claim for fire loss, hadn't you? A. I do not recollect exactly about that. There was some other men that lost clothing in the fire, and these men made claims for these losses, a man named Johnson particularly, and these men were distinctly told that we did not collect the money and they could 138 get no money from us for that.

RE-CROSS EXAMINATION by Mr. Campbell:

I did not tell that to Mr. Ogden, I did not come in personal contact with Mr. Ogden; I did not put in the claim to the insurance company, because the adjuster would not consider it as covered by our policy at all.

Q. But at the time when the adjuster called you attempted to put it in and had a conversation with the adjuster about it? A. Yes, sir. I showed him the

list.

LEON H. BOYD, recalled:

By Mr. Freedman:

I act as the general manager of Butler Brothers, I think it was Friday or Saturday noon when I first heard of this charge against Ogden; it was either in the afternoon or right at noon. I think it was April 12th. That was the day of his discharge. I could not say for sure as to that; it was either Saturday or Monday.

I went over the account as carefully as possible with Mr. Robertson.

I reported the account to Mr. Butler after I had examined it, and I told him what I thought.

Objected to.

The Court: I will let him answer the question. It is a question whether this gentleman had probable cause for instituting this prosecution so anything that influenced their minds is competent.

The Witness: So I stated the account-the whole affair to Mr. Butler, and he says, "I want you to go back and look it over and make sure before you do anything." I told him I thought that a crime had been committed, and he says, "Don't do anything before you make sure." So I examined the account again, and he told me to take it up with the attorneys, Mr. Larkin and Rathbone, and to make absolutely sure. So I took the matter down to the attorneys, and stated the facts. I stated the facts to the attorneys as clearly as I could, and the attorneys practically agreed with me.

You

They may

The Court: No. That is a conclusion. may say exactly what was said.

prove the advice of counsel.

The Witness: Mr. Poor, who represents Joline Larkin & Rathbone, it was he that I consulted, I said to

139

140

141

142 Mr. Poor that the account of Ogden had been ex

143

amined, and it was found that he had included in his statement the account of four days wages, in other words, from Monday until Thursday, and also a statement of a fire loss which he had made. Mr. Poor says that he thought that the facts as stated would constitute a crime, and so he would leave it over until morning and would look into the matter.

By the Court:

Q. Did you tell him you had given him a receipt subject to Mr. Butler's approval? A. I don't remember whether I said that to him or not, although I knew that such a receipt had been given.

Q. You gave it, didn't you? A. No. Mr. Robertson gave the receipt; but he stated-Mr. Robertson stated to me that he made it out conditioned on the approval of Mr. Butler; and so Mr. Poor made out a complaint and says, "If I find that the facts constitute a crime I will meet you at the court house tomorrow with the paper;" and so I met him at the court house, and he had the complaint ready, and I signed it. That was practically all there was to it.

By Mr. Freedman:

At the time I made this affidavit, which was offered in evidence, I in good faith believed everything that I stated in that affidavit to be true. At the time that I laid the information for the warrant before the Police 144 Magistrate, I believed that I had probable cause for the institution and prosecution of the proceeding. At the time I made the complaint I believed the plaintiff here, Mr. Ogden, to be guilty of the charge of grand larceny.

Q. At the time that you swore out this warrant upon what did you rely? A. Well, I had a case in which it stated that money which was given to a particular person for a particular purpose and was appropriated for another purpose was a crime.

By the Court:

I had read that case in the State of Minnesota. I was admitted to the Bar in the State of Minnesota. It was on that case that I based my conclusion.

By Mr. Freedman:

145

Q. Was there anything else in addition to that upon which you relied at the time you swore out this warrant? A. Well, I thought that Mr. Ogden must have known that he was not entitled to these four extra days of work, inasmuch as he had not been paid a full week for a week in which he had not worked the full time; and I knew it as matter of fact that he had been deducted six dollars for a particular day in a particular week that he had not worked. For that 146

reason

A Juror: May I ask this question?

The Court: Let me know what the question is, and I will see if it is a proper question.

A Juror: At the time the six dollars was deducted from the plaintiff's salary was he working in New York or was he working in Yonkers?

The Court: You may answer that question. The Witness: He was working in Yonkers at that time.

The Court: At what time?

The Witness: At the time the six dollars was deducted for one day's work. And I also knew of another instance where he was only paid for about two or three days work when he first started the job.

That was also at Yonkers. So I concluded that he was working by the day.

By the Court:

He was working for the same firm all the time; practically the same position. He was foreman of

147

148 carpenters up at Yonkers, and he was kind of a general superintendent on the job at Fiftieth Street.

149

150

By Mr. Freedman:

Q. Have you stated all? Was there anything else upon which you relied? A. Well, in reference to that fire loss, I knew that the other men had been informed that there was no liability on the part of the Company for their losses; and I also knew-whenever I went around to the job on several occasions this matter of the fire had been called to my attention, and several men had spoken to me about their losses and asked whether their losses would be paid. I said to each and every one of them that the Company was not liable and did not intend to pay for any of their losses. It was generally known through the job that there was to be no liability on the part of the Company.

Mr. Campbell: I object to what it was generally known.

The Court: I do not think that he can testify to that conclusion. He can say what he knows was known. He has got a right to give any motive which influenced him in this.

The Witness: It was really on these two or three circumstances that I based my conclusion, and it was on those that I made the report to Mr. Butler.

By the Court:

I made this report to Mr. Butler the same day that Mr. Ogden came in and settled up. I think it was the afternoon of Monday. That was before I had seen counsel.

Q. Did he direct you to make your complaint, or did he leave it discretionary with you? A. He left it discretionary with me; but he asked me to take it up with the attorneys and make sure before I took any action.

« PreviousContinue »