[Question repeated.] "A. The question was not put to me in that way."
Now, he gets out of it and says it was the one hundred and fifty barrels he talked about; but I asked him then if he was not asked if he did not know about any crookedness here and how he answered it, and he says that he answered it "Yes." That is, before he found out that it was necessary to change his answer or to change his mind upon that question. That is what he says. And it is utterly impossible, gentlemen, to get out of the fact that he did, before that grand jury, swear that he knew of no crookedness. You can not get out upon Mr. Roelle's testimony. You can not get out upon the idea that Schlichter put it in. Schlichter did not put it into the memory of the old man Samson. Schlichter did not write it in the memory of Mr. Hoag. Schlichter did not write it in the consciousness of Mr. Oleson. Schlichter did not write it in short-hand in the head of J. D. Ward. Schlichter, I tell you, by his short-hand necromancy, has not changed six or seven men into liars whether he put that in the second line from the top or not. He cannot do that with his short-hand, gentlemen. He could not make old Mr. Samson come here and say, "I asked that question myself; I thought that when he was there he was the head centre of all the rascality. And so just before he went out I put one of those general, pinching questions as to whether he knew anything. It was a kind of conscience scraper." The old man put that question just as these witnesses were going out: "Do you know anything about any fraud? Do you know anything about any crookedness?" It was a kind of a last question that would cover the case, and the old man recollects that he put it to Jacob Rehm and he recollects why he put it to him, because he believed at that time that he was the head centre of the villainy. Mr. Hoag says the same thing. Mr. Hoag says that he looked upon him as the great rascal in the business; and he recollects distinctly that he asked him that question; and he recollects as distinctly how he answered it. J. D. Ward was the attorney of the United States, and he swears to it that he recollects it perfectly. Oleson was an attorney of the United States. He says that he recollects it perfectly. And yet is this all to be accounted for, gentlemen, by saying that Mr. Schlichter inserted it in his notes and that all these other gentlemen are mistaken? The fact is, gentlemen, that Mr. Rehm, when he was there, had not made up his mind to vomit; he had not yet made up his mind that he could make a bargain with the United States to get out of punishment. He did not know at that time that he need not go to the penitentiary if he would furnish a substitute. He did not know, gentlemen, at that time that he could have any understanding with anybody; if he would bring better blood than his they would deal lightly with him. He did not know at that time that two owls could be traded off for an eagle. He did not know at that time that two snakes could be traded off for a decent man. As soon as he found that out, then, instead of saying that he did not know anything about any crookedness; instead of saying that he did not know anything about any fraud, he said, gentlemen, "I know all about it. I know all of them; every one of them."
Now, gentlemen, I want you to put against that man's testimony the lies he swore to himself. I want you to put against that man's testimony the improbability that he would commit numberless crimes for nothing. I want you to put against that man's testimony the testimony of every one who has contradicted and disputed him. I want you to put against that man's testimony the idea and the fact that he warned these other men against the approach of Munn. I want you to put against that man's testimony all the circumstances of the lies he has sworn; and I want you, in addition to that, to put against that man's testimony the evidence of this defendant.
You have been told by the district attorney--and if I have said anything too strong in the warmth of this discussion I beg his pardon. I have known Judge Bangs a long time, I have been his friend, I respect him; but I must say I felt a little outraged at what he said, because he said he had sympathy with this defendant. He got up here and said that the defendant bore a most excellent reputation. He got up and said that he sympathized with him, and all at once I saw his sympathy was a cloak under which he concealed a dagger to stab him. Now, then, he says good character is nothing. Good character is nothing! Good character, gentlemen, is not made in a day. It is the work of a life. The walls of that grand edifice called a good character have to be worked at during life. All the good deeds, all the good words, everything right and true and honest that he does, goes into this edifice, and it is domed and pinnacled with lofty aspirations and grand ambitions. It is not made in a day, neither can it be crumbled into blackened dust by a word from the putrid mouth of a perjurer. Let these snakes writhe and hiss about it.
Let the bats fly in at its windows if they can. They cannot destroy it; but above them all rises the grand dome of a good character, not with the bats and snakes, but up, gentlemen, with eagles in the sunlight.
They cannot prevail against a good character. Is it worth anything? If ever I am indicted for any offence and stand before a jury, I hope that I shall be able to prove as unsullied a reputation as Daniel W. Munn has proved. And when I read those letters, not only saying that his character was good, but adding "above reproach," it thrilled me and I thought to myself then, "if ever you get in trouble will anybody certify as splendidly and as grandly to your reputation?" There is not a man of this jury that can prove a better reputation. There is not a judge on the bench in the United States that can prove a better reputation. There never was and there never will be an attorney at this bar that can prove a better reputation. There is not one in this audience that can prove a better reputation. And yet we are told that that splendid fabric called a good character cannot stand for a moment against a word from a gratuitous villain--not one moment.
Such, gentlemen, is not the law of this country. Such, gentlemen, never will be the law of this land or of any other. I deny it, and I hurl it back with scorn. A good character will stand against the testimony of all the thieves on earth. A good character, like a Gibraltar, will stand against the testimony of all the rascals in the universe, no matter how they assail it. It will stand, and it will stand firmer and grander the more it is assaulted. What is the use of doing honestly? What is the use of working and toiling? What is the use of taking care of your wife and your children? Where is the use, I say, of being honest in your business? What is the use of always paying your debts as you agree? What is the use of living for others? Character is made of duty and love and sympathy, and, above all, of living and working for others. What is the use of being true to principle? What is the use of taking a sublime stand in favor of the right with the world against you? What is the use of being true to yourself? What is the use, I say, if all this character, if all this noble action, if all this efflorescence of soul can be blasted and blown from the world simply by a word from the mouth of a confessed felon? And yet we are assured here in this august tribunal, in a Federal court of the United States, where the defendant stands under the protection of the the Constitution of his country, that his character is absolutely worthless.
They say, "Why don't you bring somebody to impeach Mr. Jacob Rehm?" Why?
because he has impeached himself.
To impeach a man is the last method. If he tells an improbable story, that impeaches him. If he tells an unnatural story, that impeaches him.
If you prove he has sworn a different way, that impeaches him. If you show he has stated a different way, that impeaches him. What is the use of impeaching him any more? That would be a waste of time.
Now, gentlemen, I say to you, and I say to you once for all, I want you to get out of your minds and out of your hearts any prejudice against this man on account of these times. I understand now that in every man's pathway hiss and writhe the serpents of suspicion. I understand now that every man in high place can be pointed at with the dirty finger of a scurvy rascal. I understand that. I understand that no matter how high his position is, that any man, no matter how low, how leprous he may be, what a cancerous heart he may have, he can point his finger at the man high up on the ladder of fame, and the man has to come down and explain to the wretched villain. I understand that; but these prejudices I want out of your mind. I want you to try this case according to the evidence and nothing else. I want you to say whether you believe the testimony of these conspirators and scoundrels. I want you to say whether you are going to take the testimony of that man, and if you bring in a verdict of guilty I want you to be able to defend yourselves when you go to the defendant and tell him: "We found you guilty upon a man's testimony who admitted that he was a thief: who admitted that he was a perjurer; who admitted that he hired others to swear lies, and who committed crimes without number year after year." I want you to say whether that is an excuse to give to him. Is it an excuse to give to his pallid, invalid wife? Is it an excuse to give to his father eighty years old, trembling upon the verge of the grave: "I sent your son to the penitentiary upon the evidence of a convicted thief"? I say is it an excuse to give to his weeping wife? Is it an excuse to give to his child: "I sent your father to the penitentiary upon the evidence of Jacob Rehm"? There is not one of you can go to the child, or to the sick wife, or to the old man, or to the defendant himself, and without the blush of shame say: "I sent you to the penitentiary upon the evidence of Jacob Rehm." You cannot do it. It is not in human nature to do it.
Now, gentlemen, there is one other thing I want to say. Suspicion is not evidence. Suspicious circumstances are not evidence. All the suspicion in the world, all the suspicious circumstances in the world, amount not to evidence. I want to say one more thing. They say that the testimony of a thief ought to be corroborated. By whom? another thief? No. Because that other thief wants corroboration, and that other thief would want corroboration, and so on until thieves ran out, which I think would be a long time in this particular community at this particular time.
Understand that whatever one thief swears, that it is not corroborated because another thief swears to the same thing, and upon the point upon which Judge Doolittle dwelt so splendidly he must be corroborated upon the exact point. For instance, Mr. Munn went to his house, Mr. Munn went to his office, and another man says, I saw him there. That is not corroboration. He must be corroborated in the fact that he gave him the money, not that Munn went to his house--not that he had an opportunity to give him the money--not that he was there, but he must be corroborated as to the exact, identical point that makes the guilt.
Now, gentlemen, I am going to leave this case with you. I feel a great interest in it. The defendant feels an infinite interest in it, infinite, I tell you. It is all he has on earth, all he has is with you.
You are going to take his hopes; you are going to take his aspirations; you are going to take his ambition; you are going to take his family; you are going to take his child; you are going to take everything he has in this world into your power. It is a fearful thing to take this responsibility. I know it. But you are going to take it--his future, everything he has dreamed and hoped for, everything that he has expected to attain--his character, everything he has that is dear to him, and you are going to say "Not guilty," or you are going to cover him with the mantle of infamy and shame forever; you are going to disgrace his blood; you are going to bring those that love him down with sorrow to their graves; you are either going to do that or you are going to say, "We will not believe the testimony of self-convicted robbers and thieves."
And, gentlemen, I ask you, I implore you, I beseech you, more than that, I demand of you that you find in this case a verdict of "Not guilty."
Put yourself in his place. Do you want to be convicted on that kind of testimony? Do you want to go to the penitentiary with that kind of witnesses against you? Do you want to be locked up on that kind of testimony? Do you want to be separated from your wife or your child on that kind of evidence? Do you want to be rendered infamous during your life upon the testimony of such men as Golsen and Conklin and Rehm?
Do you? Do you? Do you? Does any man in the world imagine that twelve honest men can be found that can rob another of his citizenship, of his honor, of his character, of his home, and of his entire fortune, simply upon the testimony of such scoundrels? No, gentlemen. For myself, for this defendant, I have no fear. All I ask is that you will give to this evidence the weight that it deserves. All I ask of the prosecuting attorney in this case is that he do his duty. All I ask of him is to state just as nearly as he can, as I have no doubt he will, the evidence in the case. All I ask of him is that he give to all these circumstances their due weight, and no more. I ask him to fight for justice and not for his reputation. I ask him to fight for the honor of the Government.
I ask him to fight for the complete doing of justice, if he can, but I hope he will leave out of the case all idea that he must win a case or that I must lose a case. We are contending for too great a stake.
Personally, I care nothing about it, whether I make or lose what you please to call reputation in this affair. I care everything for my client. I care everything for his honor, and more than that, gentlemen, I love the United States of America. I love this Government, I love this form of government, and I do not want to see the sources of government poisoned. I do not want to see a state of things in the United States of America whereby a man can be consigned to a dungeon upon the testimony of a robber and thief, simply upon a political issue, simply by the testimony of some man who wishes to purchase immunity at the price of another's liberty and honor.
One more point, and I have done. I had forgotten it, or I should have mentioned it before. They have appealed to you all along to say that the fact that high-wines were so cheap during all this time put Mr. Munn upon his information, so to speak, that there were frauds. Let me take those books and let us see. On the 6th day of June, 1874, the tax on spirits was seventy cents, and the price was ninety-four cents. That made them get twenty-four cents a gallon for the whiskey. Understand, the tax was seventy, the price was ninety-four. That made them get twenty-four cents for the whiskey. Now, then, on the 10th of June it was ninety-six and a half cents. That made twenty-six and a half for the whiskey. On the 10th of June, 1874, twenty-six and a half they got for the whiskey. February 11, 1874, ninety-six cents, which made twenty-six cents; and so it went on in that way, until what? Until the tax was raised from seventy cents to ninety cents, and what is it now? The tax on whiskey, gentlemen, is ninety cents, and the price on the 10th day of May, 1876, is one dollar and seven cents; so that the price of whiskey now is only seventeen cents above the tax, and at the time that Mr. Munn ought to have known that everybody was a thief and rascal, the price was twenty-six cents above the tax, ten cents more than now. From these figures, gentlemen, you will see it, and how high did it go? The day Mr. Munn was turned out of office--gentlemen, on the tenth day of May, 1875,--the tax then being ninety cents, whiskey was worth one dollar and fifteen cents. The day he was turned out. It was nine cents more than it is today. You are welcome to all you can make out of that argument. It was worth nine cents more a gallon above the tax the day he was turned out than it is to-day, and if Mr. Munn was bound to take judicial notice that there was nothing but frauds in the district, and every distillery was running crooked, I say that the officers of the Government are bound to take that notice to-day, and you must recollect, gentlemen, that it was admitted in this case that there were frauds all over the country, that there were distilleries running in St. Louis, in San Francisco, in Milwaukee, in Peoria or Pekin, in Peoria, I believe, in my town, not a sound has been heard, and not a solitary man, I believe, charged with fraud--in St.
Louis, in Louisville, in Cincinnati, in all these towns. Now, where was the whiskey being made that was crooked? Nobody could tell. If there was a vast amount being made in Cincinnati it would lessen the price in Chicago, no matter whether the Chicago distillers were running honestly or not. If there was a vast amount being made in St. Louis it would lessen the price, no matter whether the other distilleries were running honestly or not, consequently it was impossible for the supervisor to tell it.
There is another thing I forgot. During all the time Jacob Rehm was doing this gratuitous rascality he was one of the bondsmen on the official bond of Hoyt. He was not only helping Hoyt steal and giving him all the money, but he was making himself responsible for the money he stole, and he did not charge any commission on it. He did not charge for any shrinkage or shortage or anything in the world, but made himself liable for the uttermost farthing. He was on the bond of Collector Irwin, called the stamp bond, and so do not forget that he did not only not take any money, but he went on the acknowledgments of the thieves that stole it. He not only did not take any himself, but he made himself liable as a bondsman for what he gave to them. Do not forget these things.
Now, gentlemen, I believe I have said about all I wish to say to you; the rest is for you. You must take the case, and, as I said, you do not want to go off on any prejudice against the kind or the character of the case. You do not want to go off on the idea that the air is full of rascality because some of us are to be tried next. We don't know. Let us try this case fairly and squarely on the evidence, and the next time I meet you, gentlemen, every one of you will be glad that you found this defendant not guilty, as you cannot avoid doing.
[The Jury rendered a verdict of "Not Guilty."]
CLOSING ADDRESS TO THE JURY IN THE FIRST STAR ROUTE TRIAL.
* The most characteristic feature of the Star-route trial, which has been the central point of interest in our city for the past three months, was the marvelously powerful speech of Colonel Robert G. Ingersoll before the jury and the judge last week.
People who knew this gifted gentleman only superficially, had supposed that he was merely superficial as a lawyer.
While acknowledging his remarkable ability as an orator and his vast accomplishments as a speaker, they doubted the depth of his power. They heard him, and the doubt ceased. It can be said of Ingersoll, as was written of Castelar, that his eloquent utterances are as the finely-fashioned ornamental designs upon the Damascus blade--the blade cuts as keenly and the embellishments beautify without retarding its power.
The following is Colonel Ingersoll's speech. Its swift incisiveness, keen and comprehensive logic and apt deductions from proper premises are only equaled by the grand manner of its delivery, and under the circumstances incidental to the case and the routes to be traversed, by its expedition of action and brevity.--Washington, D. C., The Capital, Sept. 16th, 1882.
MAY it please the Court and gentlemen of the jury: Let us understand each other at the very threshold. For one I am as much opposed to official dishonesty as any man in this world. The taxes in this country are paid by labor and by industry, and they should be collected and disbursed by integrity. The man that is untrue to his official oath, the man that is untrue to the position the people have honored him with, ought to be punished. I have not one word to say in defence of any man who I believe has robbed the Treasury of the United States. I want it understood in the first place that we are not defending; that we are not excusing; that we are not endeavoring to palliate in the slightest degree dishonesty in any Government official. I will go still further: I will not defend any citizen who has committed what I believe to be a fraud upon the Treasury of this Government. Let us understand each other at the commencement.
You have been told that we are a demoralized people; that the tide of dishonesty is rising ready to sweep from one shore of our country to the other. You have been appealed to to find innocent men guilty in order that that tide may be successfully resisted. You have been told--and I have heard the story a thousand times--that this country was demoralized by what the gentlemen are pleased to call the war, and that owing to the demoralization of the war it is necessary to make an example of somebody that the country may take finally the road to honesty. We were in a war lasting four years, but I take this occasion to deny that that war demoralized the people of the United States. Whoever fights for the right, or whoever fights for what he believes to be right, does not demoralize himself. He ennobles himself. The war through which we passed did not demoralize the people. It was not a demoralization; it was a reformation. It was a period of moral enthusiasm, during which the people of the United States became a thousand times grander and nobler than they had ever been before. The effect of that war has been good, and only good. We were not demoralized by it. When we broke the shackles from four millions of men, women and children it did not demoralize us.
When we changed the hut of the slave into the castle of the freeman it did not demoralize us. When we put the protecting arm of the law about that hut and the flag of this nation above it, it was not very demoralizing. When we stopped stealing babes the country did not suddenly become corrupted. That war was the noblest affirmation of humanity in the history of this world. We are a greater people, we are a grander people, than we were before that war. That war repealed statutes that had been made by robbery and theft. It made this country the home of man. We were not demoralized.
There is another thing you have been told in order that you might find somebody guilty. You have been told that our country is distinguished among the nations of the world only for corruption. That is what you have been told. I care not who said it first. It makes no difference to me that it was quoted from a Republican Senator. I deny it. This country is not distinguished for corruption. No true patriot believes it. This country is distinguished for something else. The credit of the United States is perfect. Its bonds are the highest in the world. Its promise is absolute pure gold. Is that the result of being distinguished for corruption? I have heard that nonsense, that intellectual rot all my life, that the people used to be honest, but at present they are exceedingly bad. It is the capital stock of every prosecuting lawyer; but in it there is not one word of truth. Is this country distinguished only for its corruption throughout Europe? No. It is respected by every prince and by every king; it is loved by every peasant. Is it because we have such a reputation for corruption that a million people from foreign lands sought homes under our flag last year? Is corruption all we are distinguished for? Is it because we are a nation of rascals that the word America sheds light in every hut and in every tenement in Europe?
Is it because we are distinguished for corruption that that one word, America, is the dawn of a career to every poor man in the Old World? I always supposed that we were distinguished for free schools, for free speech, for just laws; not for corruption. A country covered with schoolhouses, where the children of the poor are put upon an exact equality with those of the rich, is not distinguished for corruption.
And yet in the name of this universal corruption you are appealed to to become also corrupt. This nation is substantially a hundred years old, and to-day the assessed property of the United States is valued at $50,000,000,000. Is that the result of corruption, or is it the result of labor, of integrity and of virtue? I deny that my country is distinguished for corruption. I assert that it rises above the other nations distinguished for humanity as high as Chimborazo above the plains. Never will I put a stain upon the forehead of my country in order that I may win some case, and in order that I may consign some honest man to the penitentiary. I stand here to deny that this is a corrupt country. Let me say that the only tribute that I ever heard paid to corruption was indirectly paid by Mr. Merrick himself. He told you that official corruption destroyed the French Empire, and upon the ruins of that empire arose the French Republic. He makes official corruption the father of French liberty. If it works that way I hope they will have it in every monarchy on the globe. Napoleon stole something besides money; he stole liberty, and the French people finally got to that condition of mind where they preferred to be trampled on by Germany rather than to have their liberty devoured by Napoleon. From that splendid sentiment sprang the French Republic. This country is the land not of slavery, but of liberty, not of unpaid toil, but of successful industry. There is not a poor man to-day in all Europe or a poor boy who does not think about America. I recollect one time in Ireland that I met with a little fellow about ten years old with a couple of rags for pantaloons and a string for a suspender. I said, "My little man, what are you going to do when you grow up?" "_Going to America_." It is the dream of every peasant in Germany. He will go to America; not because it is the land of corruption, but because it is the land of plenty, the land of free schools, the land where humanity is respected.
There is another thing about this country. We have a king here, and that king is the law. That king is the legally expressed will of a majority, and that law is your sovereign and mine. You have no right to violate one law to carry out another. We all stand equal before that law, and the law must be upheld as an entirety, and in no other way. If in this case you believe these defendants beyond a doubt to be guilty, it is your duty to find them so, and you must find them so in order to preserve your own respect. I do not agree with this prosecution in the idea that the perpetuity of the Republic depends upon this verdict.
Decide as badly as you please, as horribly as you can, the Republic will stand. The Republic will stand in spite of this verdict, and the Republic will stand until people lose confidence in verdicts--until they lose confidence in legal redress. When the time comes that we have no confidence in courts and no confidence in juries, then the great temple will lean to its fall, and not until then. As long as we can get redress in the courts, as long as the laws shall be honestly administered, as long as honesty and intelligence sit upon the bench, as long as intelligence sits in the chairs of jurors, this country will stand, the law will be enforced and the law will be respected. But so far as my clients are concerned, everything they have, everything they love, everything for which they hope, home, friends, wife, children, and that priceless something called reputation, without which a man is simply living clay, everything they have is at stake, and everything depends upon your verdict. I want you to understand that everything depends upon your decision, and yet my clients with their world at stake, home, everything, _everything_, ask only at your hands the mercy of an honest verdict according to the evidence and according to the law. That is all we ask, and that we expect. By an honest verdict I mean a verdict in accordance with the testimony and in accordance with the law, a verdict that is a true and honest transcript of each juror's mind, a verdict that is the honest result of this evidence. Whoever takes into consideration the desire, or the supposed desire, of the outside public is bribed. Whoever finds a verdict to please power, whoever violates his conscience that he may be in accord, or in supposed accord, with an administration or with the Government, is bribed. Whoever finds a verdict that he may increase his own reputation is bribed. Whoever finds a verdict for fear he will lose his reputation is bribed. Whoever bends to the public judgment, whoever bows before the public press, is bribed.
Fear, prejudice, malice, and the love of approbation bribe a thousand men where gold bribes one. An honest verdict is the result not of fear, but of courage; not of prejudice, but of candor; not of malice, but of kindness. Above all, it is the result of a love of justice. Allow me to say right here that I believe every solitary man on this jury wishes to give a verdict exactly in accordance with this testimony and exactly in accordance with the law. Every man on this jury wishes to preserve his own manhood. Every man on this jury wishes to give an honest verdict.
There are no words sufficiently base to describe a man who will knowingly give a dishonest verdict. I believe every man upon this jury to be absolutely honest in this case. The mind of every juror, like the needle to the pole, should be governed simply by the evidence. That needle is not disturbed by wind or wave, and the mind of the honest juror never should be disturbed by clamor, nor by prejudice, nor by suspicion. Your minds should not be affected by the fume, by the froth, by the fiction, or by the fury of this prosecution. You should pay attention simply to the evidence, and to use the language of one of my clients, you should be governed by the frozen facts. That is all you have any right to think of and all you have any right to examine.
Having now said thus much about the duties of jurors, let me say one word about the duties of lawyers. I believe it is the duty of a lawyer, no matter whether prosecuting or defending, to make the testimony as clear as he can. If there is anything contradictory it is his business if he possibly can to make it clear. If there is any question of law about which there is a doubt, it is his right and it is his duty to give to the court the result of his study and of his thoughts, for the purpose of enlightening the court upon that particular branch of law.
No matter if he may believe the court understands it, if there is the slightest fear that the court does not or has forgotten it, it is his duty to bring the attention of the court to that law. It is not his duty to abuse anybody. It is not my duty to abuse anybody. There is no logic in abuse; not the slightest; and when a lawyer, under the pretext of explaining the evidence to the jury, calls a defendant a thief and a robber, he steps beyond the line of duty and, in my judgment, beyond the line of his privilege. What light does that throw upon the case? In his effort to explain the law to the court what cloud does it remove from the intellectual horizon of his honor for the attorney to call the defendant a robber, a thief, or a pickpocket? I shall in this case give you what I believe to be the facts. I shall call your attention to the testimony. I shall endeavor to throw what light I am capable of throwing upon this entire question. I shall not deal in personalities. They are beneath me. I shall not deal in epithets. Nobody worth convincing can be convinced in that way. Now, let us see what the law is, and let us see what our facts are. In the beginning of this dusty branch I shall ask the pardon of every juror in advance for going over these facts once again. You see they strike every man in a peculiar way. No two minds are exactly alike. No pair of eyes distinguish exactly the same object or the same peculiarities of the objects. This is an indictment under section 5440 of the Revised Statutes, and there must not only be a conspiracy to defraud, but there must be an overt act done in pursuance of that conspiracy for the purpose of effecting the object of it. Now, then, how must these overt acts be stated in this indictment? Is the overt act a part of the crime, and must it, be described with the same particularity that you describe the offence? Which of the overt acts set out in this indictment is the overt act depended upon, together with the act of conspiring, to make this offence? I hold, may it please your Honor, that every overt act set out in the indictment must be proved exactly as it is alleged, no matter whether the description was necessary to be put in the indictment or not. No matter how foolish, how unnecessary the description, it must be substantiated, and it must be proven precisely as it is charged. No matter whether the particular thing described is of importance or not, no matter how infinitely unnecessary it was to speak of it, still, if it is a matter of description, it must be proven precisely as it is charged. Upon that subject I wish to call the attention of the Court to some authorities, and it will take me but a few moments. I will call the attention of the Court first to the case of the State against Noble, 15 Maine, 476. Here a man was indicted for fraudulently and willfully taking from the river and converting to his own use certain logs. These logs were described as marked "W" with a cross, and "H" with another cross, and with a girdle.
Now, it seems that a part of this mark was not found, according to the testimony upon the logs taken:
"The description of these logs in the indictment is the only way the logs could be distinguished and could not be rejected as surplusage. It has been settled that if a man be indicted for stealing a black horse, and the evidence be that he stole a white one, he cannot be convicted.
The description of a log by the mark is more essential than that of a horse by its color. If it was not necessary to describe the log so particularly by the mark, yet so having stated it, there can be no conviction without proof of it."
Now, the court, in deciding this, says:
"It may be regarded as a general rule, both in criminal prosecutions and in civil actions, that an unnecessary averment may be rejected where enough remains to show that an offence has been committed, or that a cause of action exists. In Ricketts vs. Solway, 2 Barn., & Aid., 360, Abbott, C. J., says: 'There is one exception, however, to this rule, which is, where the allegation contains matter of description. Then, if the proof given be different from the statement, the variance is fatal.'
As an illustration of this exception, Starkie puts the case of a man charged with stealing a black horse. The allegation of color is unnecessary, yet as it is descriptive of that, which is the subject-matter of the charge, it cannot be rejected as surplusage, and the man convicted of stealing a white horse. The color is not essential to the offence of larceny, but it is made material to fix the identity of that, which the accused is charged with stealing."
3 Stark., 1531. "In the case before us the subject-matter is a pine log marked in a particular manner described. The marks determine the identity, and are, therefore, matter purely of description. It would not be easy to adduce a stronger case of this character. It' might have been sufficient to have stated that the defendant took a log merely, in the words of the statute. But under the charge of taking a pine log we are quite clear that the defendant could not be convicted of taking an oak or a birch log. The offence would be the same; but the charge to which the party was called to answer, and which it was incumbent on him to meet, is for taking a log of an entirely different description. The kind of timber and the artificial marks by which it was distinguished are descriptive parts of the subject-matter of the charge which cannot be disregarded, although they may have been unnecessarily introduced. The log proved to have been taken was a different one from that charged in the indictment; and the defendant could be legally called upon to answer only for taking the log there described. In our judgment, therefore, the jury were erroneously instructed that the marks might be rejected as surplusage; and the exceptions are accordingly sustained."
I also cite the case of the State against Clark, 3 Foster, New Hampshire, 429:
"Indictment for fraudulently altering the assignment of a mortgage. The indictment set forth the mortgage, and also the assignment, as it was alleged to have been originally made from Miles Burnham to Noah Clark, the respondent; and alleged that the assignment was signed, sealed, delivered, witnessed by two witnesses, and duly and legally recorded at length, in the registry of deeds of Rockingham county, on the 18th of September, 1844. It then alleged that this assignment was fraudulently altered on the 28th of June, 1844, by inserting the letter 'S' in two places, between the words 'Noah' and 'Clark,' so that the assignment originally made to Noah Clark, after the alteration appeared as if it were made to Noah S. Clark.
"On trial the records of deeds were produced, and there was found a record of the assignment purporting to be made to Noah S. Clark, the record bearing date September 18, 1844, but there was no record of any assignment to Noah Clark. The respondent's counsel objected that this evidence did not support the allegations of the indictment. The forgery was alleged to have been committed on the 28th of June, 1844, and the court admitted evidence that Miles Burnham, who executed the assignment, being applied to about the 30th of July, 1846, for a loan of money upon a mortgage of the same property, declined to make the loan unless he was satisfied there was no mortgage of conveyance of the land by Noah Clark, and the person who drew the assignment searched the records with Burnham, and found no such deed on record. This evidence was objected to, but was understood to be introductory to other material and pertinent evidence, and was therefore admitted; but no such other evidence, to which it was introductory, was offered.
"The jury found a verdict of guilty, which the defendant moved to set aside."
Upon that the court says:
"We are not able to look upon this statement that the deed was duly recorded as well as witnessed and acknowledged according to the statute, in any other light than as part of the description of the deed and conveyance which the defendant was charged with altering. We are, therefore, of opinion that the evidence upon this point did not sustain the indictment."
Now, if the statement that the mortgage was recorded was such a material part of the description that a failure to prove the record as charged was fatal, so, I say, in these overt acts, if they charge that a thing was done or a paper filed on a certain day and it turns out not to be so, that is a fatal variance, and under that description in the indictment the charge cannot be substantiated. I refer to the case against Northumberland, 46 New Hampshire, 158, and also to the King against Wennard, 6 Carrington & Paine, 586.
Clark vs. Commonwealth, 16 B., Monroe, 213:
"The doctrine seems to have been well settled in England and this country, that in criminal cases, although words merely formal in their character may be treated as surplusage and rejected as such, a descriptive averment in an indictment must be proved as laid, and no allegation, whether it be necessary or unnecessary, more or less particular, which is descriptive of the identity of what is legally essential to the charge in the indictment, can be rejected as surplusage."