State v. Shay. says, he had appeared to defend Casey, and he had received twenty dollars in all for these services. In October, 1905, Casey was arrested by a man for whom he sold goods on part payments. Mr. Shay appeared for him in the police court and had the charge dismissed; but the grand jury took the case up and found a true bill against Casey for embezzlement. Casey was put into jail. Mrs. Casey, the mother of Frank, a widow, old and poor, undertook to pay Mr. Shay to defend her son. She visited him from time to time and paid him small sums, for which he signed receipts. On January 2 she paid him five dollars, which was the last payment made, and which she says she told him was the widow's mite. This was a few days before the Casey case was set for trial. Mrs. Casey paid Mr. Shay in all thirty dollars. The receipts are signed by Mr. Shay himself. On Saturday, January 6, a postal card from the prosecuting attorney addressed to Mr. Shay was put into the mail, notifying him that the Casey case was set for trial Thursday, January 11. On January 9 an entry was made on the journal setting the case for the eleventh. The Court Index of January 10 and 11 noted the setting of the case. On Thursday, January 11, the case was called for trial between 11:00 and 11:30. The witnesses for the state were on hand, but the defendant was without either witnesses or attorney. The court, therefore, had a telephone message sent to Mr. Shay's office, telling him the Casey case was for trial. Mr. Jones, one of Shay & Cogan's office clerks, came to the prosecutor's office and said that Mr. Shay was out of town, which was not true. Mr. Jones on the stand was not able to explain why he made this assertion, nor why, when he returned to the office at noon and found Mr. Shay there, he failed to at once telephone to the prosecutor's office and correct the mistake, if it was a mistake; for he knew the court was trying to locate Mr. Shay. The court assigned Mr. Salzer to act as counsel for Casey, and adjourned the case to Monday, January 15. The case of State v. Ingram proceeded to trial, and after a verdict about 1:30, the court adjourned for the day because there was no further business. The next day, January 12, Mr. Shay not having appeared, the court sent for Mr. Cogan, Mr. Shay's partner. Mr. Cogan in open court said that the Casey case was in the hands of Mr. Shay. The court told Mr. Cogan to tell Mr. Shay to come up to the courthouse and explain his absence the day before. Mr. Shay did not respond, and on the same afternoon, the court directed Mr. Morris, of the prosecutor's office, to write to Mr. Shay, telling him the Casey case was set for Monday, January 15, and to ask him to be on hand. This letter Mr. Shay received, and answered by saying that he would be "delighted to comply with 29 Dec. Vol. 16 Hamilton Common Pleas. the judge's request," but that he would be actively engaged elsewhere on the fifteenth. The case against Casey, therefore, proceeded to trial on January 15 with Mr. Salzer as attorney for the defense. Mr. Salzer had been able to find Mr. Shay at his office for consultation only once, Saturday afternoon, January 13. He obtained from Mr. Shay at that time the documents to be used by Casey in his defense against the charge of embezzlement, and other information; but it was not possible for Mr. Salzer to properly prepare the case by Monday morning. He did all that could be done, but the defense went in badly and Casey was convicted. The court then issued a rule against Mr. Shay citing him to appear and show cause why he should not be held in contempt for failing to defend Casey. On the afternoon of Tuesday, January 16, Mr. Shay appeared in court and demanded that his case be taken up. The court was at the time engaged in the consideration of the special charges presented by counsel in the Casey case, which was then nearly done. The court declined to go into the matter with Mr. Shay until the business in hand was disposed of. Mr. Shay thereupon tore up the rule and threw it into the cuspidor, saying the writ was of no force, and using loud and insulting language to the court, to which no reply was made; but the court directed the sheriff to detain Mr. Shay in the court room under Rev. Stat. 5641 (Lan. 9173), which provides that— "This section shall not be so construed as to prevent the court from issuing process to bring the accused party into court, or from holding him in custody, pending such proceedings.' The arguments in the Casey case were brief, and after the jury retired, Mr. Shay was called to the bar and told by the court that he was charged with contempt in failing to appear to defend Casey on January 11 and 15. Upon Mr. Shay's demand that the charges be put in writing, the court granted the request although the court had the right to proceed summarily under Rev. Stat. 5639 (Lan. 9171), as said above. The next day the court appointed as a committee, Judge Jacob Shroder and Mr. Thomas H. Darby, assistant United States District Attorney, to prepare the charges. Mr. Shay had called Mr. Lawrence Maxwell and Judge Outcalt into some litigation in the United States court as associate counsel some time before, and to these gentlemen he now turned for help. On Friday, January 19, Judge Outcalt and Mr. Shay asked for a conference with the committee, which was granted. The two went to Judge Shroder's office and there met Judge Shroder and Mr. Darby. What was this visit to the committee for? On the stand Mr. Shay State v. Shay. said repeatedly that it was to find out what he was charged with. He denied over and over again that the court had told him what the charge was when he appeared in response to the rule. But there were several affidavits which had been filed by his counsel in the effort to have the case sent to another judge asserting that Mr. Shay had been told of the charge against him openly by the court, and these were called to his attention on cross-examination. The next day on the stand Mr. Shay took back his first claims, and admitted that he and Judge Outcalt went to see the committee to explain why he had failed to defend Casey. They knew, therefore, when they went to the committee, that they must account for Mr. Shay's failure to appear in this court on January 11 and 15. This visit was made three days after the committee had been named. Mr. Shay and Judge Outcalt had had three days to decide what Mr. Shay's defense was. When they came before the committee they said Mr. Shay had been prevented from defending Casey by absence from the city that he had been absent from Christmas up to and including January 11, the day when the Casey trial was first called. On January 11 and 15 they said Mr. Shay was in Marysville, Ohio. Judge Shroder and Mr. Darby were both called to the stand by the court and both swore positively that these statements were made. By a mere chance the committee knew that Mr. Shay was in town on January 2 and January 11. Otherwise, this matter might have ended then and there by the committee taking Mr. Shay's word. A lawyer can tell where he was a week ago by asking his family, his friends, his clerks, his business associates, and looking at his own records and the court records; but no one else could prove where he was. To know which way to turn for witnesses to prove that he was in town on a certain day would be impossible. The committee chanced to have Mrs. Casey's last receipt from Shay, dated January 2; and they knew that Joe Casey, the brother of Frank, had visited Frank in jail on January 11, and had then called upon Mr. Shay to find out why he had failed to be in court that morning. The committee told Mr. Shay that they had evidence that he was in town on January 2, and also a witness who would say that he met Mr. Shay January 11. The name of this witness was demanded by Judge Outcalt, but the committee discreetly refused to give it. He insisted, but the committee remained firm. Then Judge Outcalt and Mr. Shay agreed to make a further investigation of Mr. Shay's whereabouts on January 11, and to provide the committee with what they called documentary proof where Mr. Shay was during that entire week. The proof was never furnished. Four days after the first interview, Judge Outcalt, on January 23, Hamilton Common Pleas. asked Mr. Darby to come to his office. Judge Outcalt says he had been looking everywhere to find out where Mr. Shay was on the eleventh. He told Mr. Darby that Mr. Shay was in the United States court in Cincinnati on Tuesday and Wednesday, January 9 and 10, but he again asserted that Mr. Shay was in Marysville on Thursday, January 11. At this interview Judge Outcalt held in his hand the Court Indexes of January 10 and 11. In them are noted proceedings of the United States court of the ninth and tenth, in which Mr. Shay was counsel. If Judge Outcalt had looked at the Court Index of January 12, he would have found in the United States district court column but two things which had been done in that court the day before, and in both of them Mr. Shay was of counsel. But unfortunately Judge Outcalt did not examine the index of the twelfth. Judge Outcalt might have learned from Mr. Sidney Cowen, the deputy clerk of the United States court, that Mr. Shay was in that court for a short time on the morning of the eleventh; but again unfortunately he failed to inquire of Mr. Cowen, although he did inquire of Mr. Georgi, of the clerk's office, who could give him no information. All this goes to show how completely Mr. Shay had led Judge Outcalt to believe that on January 11 Mr. Shay was in Marysville, Ohio. There is no doubt that Judge Outcalt made the statement to Mr. Darby the second time that Mr. Shay was in Marysville on the eleventh. When Mr. Darby was called to the stand by the court and testified that Judge Outcalt told him this, Judge Outcalt interrupted him to ask, "Who said that?" Mr. Darby replied, "Judge Outcalt." When Judge Outcalt took the stand he at first denied that he had made such a statement, but later admitted that he might have said it, and finally said that he very likely did say it. It is proved that he did. After this second assurance from Judge Outcalt that Mr. Shay was in Marysville on January 11, Mr. Darby went to Marysville. There he found that the day Mr. Shay was in Marysville was Friday, January 12, and not Thursday, January 11. The hotel register settled that fact. The committee thereupon filed charges. Thus for just one week after he was charged by this court with contempt in failing to appear to defend Casey on the eleventh, Mr. Shay and Judge Outcalt persisted that Shay was in Marysville on the eleventh. The probability of one of the committee making a two days' trip to find out was so remote, that Mr. Shay thought he would chance it. It is important in determining the guilt or innocence of a man to know what he said when he was first accused, and whether he told the truth or a lie. That is why this Marysville story cuts an important figure in deciding this case. If Mr. Shay had had any honest reason for failing to defend Casey, he would have given it in the first place. State v. Shay. The falsity of this first defense having been exposed, other defenses were set up. These will be considered. One of them is based on a fine technicality, but is without merit. The postal card sent to Mr. Shay on January 6 stated that the Casey case was set for trial January 11. The entry setting the case for the eleventh was really not made until January 9. The postal should have said that the case will be set for the eleventh. But the prosecutor was under no obligation to send the card at all; it was Mr. Shay's business to watch the docket. No matter if the card was technically inaccurate, it gave notice to Mr. Shay that the Casey case would be tried on January 11, and that is why it is important as evidence against Mr. Shay. If he had got a telephone message, through the courtesy of the prosecutor, of the setting of the case, to detect a little flaw in the message would not be an answer to the charge that the message warned him of the coming trial of the case. It is held in Territory v. Clancy, 7 N. M. 580 [37 Pac. Rep. 1109], that an attorney who disregards the order of a court upon the ground that it was not technically correct in its terms is guilty of contempt. This leads up to the question whether or not Mr. Shay got this postal card. He told the committee that he did not, and he says so yet. Eight other postal cards noting cases for trial were put into the mail. January 6 together with the one to Mr. Shay. The letter book of the prosecutor's office shows that they were all copied together. These eight postals to the other lawyers are all accounted for, and are in evidence, all stamped with the postmark January 6, 1:00 P. M. In the regular course of business the card to Mr. Shay, according to the testimony of Mr. Megrue, superintendent of mail delivery, would arrive at Mr. Shay's office some time after 1 o'clock. Mr. Shay was handed his mail that afternoon, but he says this postal was not in his mail. Mr. Cogan and Mr. Jones say they did not see it. But Richmond and Renan, the other two clerks in the office, were for some reason not called. It is hard to believe that this postal out of the whole number miscarried. A letter properly directed and placed in the post office raises a presumption that it reached the person to whom it was addressed. Rosenthal v. Walker, 111 U. S. 185, 193 [4 Sup. Ct. Rep. 382; 28 L. Ed. 395]; Henderson v. Coal & Coke Co. 140 U. S. 25, 37 [11 Sup. Ct. Rep. 691; 35 L. Ed. 322]. This presumption may be overcome by the denial of the addressee, if his credibility is good; but Mr. Shay's word has so little weight that the presumption holds good. It is claimed that the assignment of Mr. Salzer as attorney for Casey on Thursday, January 11, involved the finding that Mr. Shay was not the attorney for Casey and discharged him from the case. There are two answers to that argument. In the first place Mr. Salzer was not |