Mr. Ingersoll. [Interposing.] Very well.
The Court. [Continuing.] Whether the Court is going to allow an argument to be based upon a mere vacuum--wind, nothing.
Mr. Ingersoll. That would seem to be stealing the foundation of this case. [Laughter, and cries of "Silence" from the bailiffs.] We will consider the argument made to the Court, and not to the jury.
The next question, then, is what is the _corpus delicti_; that is, in a case of conspiracy? I do not believe the combination to be the corpus delicti--the mere association. It may be the corpus, but it is not the delicti, and under the law there must not only be a conspiracy, as I understand it, but also an overt act done by one of the conspirators to accomplish the object of the conspiracy. So that the conspiracy with the fraudulent purpose and the overt act constitute the corpus delicti. Now, I read from Best on Presumptions, page 279:
"The corpus delicti, the body of an offence, is the fact of its actually having been committed."
The dead body in a murder case is not the corpus delicti. It is the corpse and nothing more. It must be followed by evidence that murder was committed.
"The corpus delicti is the body, substance or foundation of the offence. It is the substantial and fundamental fact of its having been committed."
1 Haggard, 105, opinion by Lord Stowell.
I now refer you to Peoples vs. Powell, 63, N. Y., page 92. It seems that the defendants in this case were commissioners of charities of the county of Kings, and they were indicted for conspiring together to buy supplies contrary to law and without duly advertising. Their defence was that they were not aware that such a law existed; that they were ignorant of the law. The court below thought that made no difference.
The court above said before they could be guilty of this crime there must be the intention to commit the crime, and this language is used:
"The agreement must have been entered into with an evil purpose, as distinguished from a purpose simply to do the act prohibited in ignorance of the prohibition. This is implied in the meaning of the word conspiracy. Mere concert is not conspiracy."
So combination is not conspiracy; partnership is not conspiracy; neither is it the corpus delicti of conspiracy. There must be the evil intent; there must be the wicked conspiracy not only, but there must be one at least overt act done in pursuance of it before the corpus delicti can be established.
"The actual criminal intention belongs to the definition of the offence and must be shown to justify a conviction for conspiracy. The offence originally consisted in a combination to convict an innocent person by perversion of the law. It has since been greatly extended, but I am of opinion that proof that the defendants agreed to do an act prohibited by statute, followed by overt acts in furtherance of the agreed purpose, did not conclusively establish that they were guilty of the crime of conspiracy."
It would be hard to find a stronger case, in my judgment, than that.
Although they agreed to violate a statute--they agreed to buy supplies without complying with the statute by advertising--they claimed they were in ignorance of it, and the question was whether they were guilty of conspiracy, having no intent to do an illegal act, and the court of appeals decided that that verdict could not stand.
The Court. Because the court below had instructed the jury that whether what they did was done in ignorance or with knowledge it made no difference.
Mr. Ingersoll. Certainly; it made no difference. Everybody is supposed to know the law.
Now, the next point is, and great weight has been put upon it, gentlemen, that concurrence of action establishes conspiracy; that if one does a part and another another part and finally the culmination comes, that is absolute evidence, or in other words, an inference.
Admitting, now, that they were perfectly honest, if any of these parties made a bid, that bid had to be accepted by the Government. They had to act together. The department and the man had to act together to have the bid accepted. The department and the man had to act together to make the contract. The department and the man had to act together to get the pay, and no matter how perfectly honest the transaction was they had to act together from the first step to the payment of the last dollar.
Now, in a business where they do have to act together, where one necessarily does one thing, and the other necessarily does another, the fact that that happens does not even tend to prove that there is any fraud. Upon this concurrence of action I refer to the case of Metcalfe against O'Connor and wife, in Little's Select Cases, 497. One of the men confessed that a large party went to the house where there was a disturbance and where they tried to take by force a boy from the custody of a man and woman. Now, the fact that these men did go the house, the fact that they were there at the time this happened, and the fact that one of the conspirators or one of the trespassers had confessed that he went there and that the other went with him for that purpose, the court decides that you cannot infer the purpose of these men from the statement of the other; neither can you infer it from the fact that they were there. You must find out for what purpose they were there by ascertaining what they did and when they were there, and that concurrence in actions shows nothing.
The Court. Did you not say that the decision there was that the conspiracy might be inferred from the combination to do the act?
Mr. Ingersoll. I will just read it and then there will be no guessing about it:
"This is a writ of error prosecuted by the defendants to a judgment for the plaintiffs in an action of trespass for an assault and battery alleged to have been committed upon the plaintiff Ann, the wife of the other plaintiff.
"We are of the opinion that the circuit court erred in refusing to instruct the jury, at the instance of the defendants, to find for all of them, except the defendant Metcalfe. He is the only one of the defendants proven to have touched the defendant Ann, and against the other defendants there is no evidence conducing in the slightest degree to prove them guilty of committing any assault or battery upon her, or of any intention to do so.
"It is true that it was proved that the other defendants confessed that they were at the house of Connor when the assault and battery charged is alleged to have been committed, and it was also proved that Metcalfe confessed that he and the other defendants had gone there for the purpose of taking from Connor by force an idiot boy whom he had in his custody. But the circumstances of the other defendants being at Connor's house, there is no evidence they were there for any unlawful purpose; nor can it of itself be sufficient to render them responsible for any act done by Metcalfe in which they did not participate; and the confessions of Metcalfe are certainly not legitimate evidence against the others to prove the unlawful purpose with which they went to Connor's, and thereby to charge them with the consequences of his act."
Now, to all appearances, they went there together; to all appearances, they went there for the one purpose, and Metcalfe, the man who really did the mischief, confessed that they all went there for the one purpose, but the court held that that was not sufficient.
"Where several agree or conspire to commit a trespass, or for any other unlawful purpose, they will, no doubt, all be liable for the act of any one of them done in execution of the unlawful purpose; and when the agreement or conspiracy is first proved by other evidence, the confession of one of them will be admissible evidence against the others. But it is well settled that the confessions of one person cannot be admitted against the others to prove that they had conspired with him for an unlawful purpose."
Now, the next evidence that I wish to allude to, gentlemen, is the evidence of Mr. Walsh, and I will only say a few words, because it has been examined and it has been ground to powder. Everything in this world is true in proportion that it agrees with human experience; and you can safely say that everything is false or the probability is that it is false in proportion that it is not in accordance with human experience.
Other things being equal, we act substantially alike.
Now, when anything really happens everything else that ever happened will fit it. You take a spar crystal, I do not care how far north you get it, and another spar crystal, no matter how far south you get it, and put them together and they will exactly fit each other--exactly. The slope is precisely the same. And it is so with facts. Every fact in this world will fit every other fact--just exactly. Not a hair's difference.
But a lie will not fit anything but another lie made for the purpose--never. It never did. And finally, there has to come a place where this lie, or the lie made for the sake of it, has to join some truth, and there is a bad joint always. And that is the only way to examine testimony. Is it natural? Does it accord with what we know? Does it accord with our experience?
Now, take the testimony of Mr. Walsh, and I find some improbabilities in it. Just let me read you a few:
1. Bankers and brokers do not, as a rule, loan money without taking at least a note. That is my experience. And the poorer this broker is, the less money he has, the more security he wants. He not only wants an indorser but he would like to have a mortgage on your life, liberty, and pursuit of happiness. That is the first improbability.
2. Bankers and brokers do not, as a rule, take notes that bear no interest, or in which the interest is not stated. People who live on interest find it always to their interest to have the interest mentioned--always. I never got a cent of a banker that I did not pay interest, and generally in advance.
3. Bankers and brokers do not, as a rule, take notes payable on demand, because such notes are not negotiable.
4. It is hardly probable that when a banker and broker holds the note of another for twelve thousand dollars--the note being unpaid--he would loan thirteen thousand five hundred dollars more, taking another note on demand in which the rate of interest was not stated.
5. It is still more improbable that the same banker and broker, with a note for twelve thousand dollars and one for thirteen thousand five hundred dollars, being unpaid, would loan five thousand four hundred dollars more without taking any note or asking any security.
6. When such banker and broker called upon his debtor for a settlement, and exhibited the two notes, and thereupon his debtor took the two notes and put them in his pocket, it is highly improbable that the banker and broker would submit to such treatment.
7. It is improbable that such banker and broker would afterwards commence suit to recover the money, without mentioning to his attorney, in fact, that the notes had been taken away from him.
8. It is also improbable that the banker and broker would commence another suit for the same subject-matter and still keep the fact that the notes had been taken from him by violence, a secret from his attorney.
9. If Mr. Brady took the notes by force, it is improbable that he would immediately put himself in the power of the man he had robbed, by stating to him that he, Brady, was in the habit of taking bribes.
10. It is impossible that Mr. Brady could, in fact, have done this, which amounted to saying this: "I have taken twenty-five thousand five hundred dollars from you; of course, you are my enemy; of course, you will endeavor to be revenged, and I now point out the way in which you can have your revenge. I am Second Assistant Postmaster-General; I award contracts, increases, and expedition, and upon these I receive twenty per cent, as a bribe. I am a bribe-taker; I am a thief; make the most of it. I give you these tacts in order that I may put a weapon in your hands with which you can obtain your revenge."
There are also other improbabilities connected with this testimony.
If Mr. Brady was receiving twenty per cent, of all increases and expeditions, amounting to hundreds of thousands of dollars per annum, it is not easy to see why he would be borrowing money from Mr. Walsh.
Now, if that story is true, boil it down and it is this, because if he got this twenty per cent, from everybody he had oceans of money--boil it all down and it is this: A rich man borrows without necessity and a poor banker loans without security. These twin improbabilities would breed suspicion in credulity itself. No man ever believed that story, no man ever will. There is something wrong about it somewhere, unnatural, improbable, and it is for you to say, gentlemen, whether it is true or not, not for me. What is the effect of that testimony? So far as my clients are concerned it is admitted, I believe, by the prosecution--it was so stated, I believe, by his Honor from the bench--that it could not by any possibility affect any defendant except Mr. Brady, and the question now is, can it even affect him? I call the attention of the Court to 40th N. Y., page 228. I give the page from which I read:
"To make such admissions or declarations competent evidence, it must stand as a fact in the cause, admitted or proved, that the assignor or assignees were in a conspiracy to defraud the creditors. If that fact exist, then the acts and declarations of either, made in execution of the common purpose, and in aid of its fulfillment, are competent against either of them. The principle of its admissibility assumes that fact."
That the conspiracy has been established.
"In case of conspiracy, where the combination is proved, the acts and declarations of the conspirators are not received as evidence of that fact, but to show what was done, the means employed, the particular design in respect to the parties to be affected or wronged, and generally those details which, assuming the combination and the illegal purpose, unfold its extent, scope, and influence either upon the public or the individuals who suffer from the wrong, or show the execution of the illegal design. But when the issue is simply and only, was there a conspiracy to defraud, these declarations do not become evidence to establish it."
"So far then, as the admission of the evidence in this case, of declarations, subsequent to the assignment, is sought to be sustained as evidence of the common fraud, on the ground of conspiracy, the argument wholly fails. A conspiracy cannot be proved against three by evidence that one admitted it, nor against assignees by proof that the assignor admitted it; it is a fact that must be proved by evidence, the competency of which does not depend upon an assumption that it exists."
So to the same point is the case of Cowles against Coe, 21st Connecticut, 220. I will read that portion of the syllabus that conveys the idea:
"To prove the alleged conspiracy between the defendant and G., the plaintiff offered the deposition of R., stating declarations made by G.
to R., while G. was engaged in purchasing goods of him, on credit, and relative to G.'s responsibility and means of obtaining money through the defendant's aid; these declarations were objected to, not on the ground that the conspiracy had not been sufficiently proved, but because the defendant was not present when they were made; it was held that they were admissible, within the rule regarding declarations made by a conspirator in furtherance of the common object."
Now, let us see what the court says about it: