The Court. You have demonstrated, as far as you have been able to, that he has not sworn truthfully.
Mr. Ingersoll. He has not; he has not; and if the Government will act fairly with him he will get no immunity.
When he went to the Government he understood the law to be that if he swore fully and fairly, or if he swore in such a way that they could not prove that he did not swear fully and fairly, he was to have immunity.
He understood that the more he swore against the defendants the better was his chance for immunity. He knew that the Government would never complain of any lie he swore against the defendants.
Now, the next question is what is the law of accomplices, of informers?
There was a remark made by Mr. Bliss in his speech, that they had plenty of evidence in this case without the testimony of Mr. Walsh or Mr. Moore or Mr. Rerdell; plenty of evidence without the testimony of Mr. Rerdell.
If that had been so then the Government had no right to put Mr. Rerdell on the stand. There is but one excuse for using the testimony of a man who pleads guilty, and that is that without his testimony a conviction cannot, in all probability, be obtained. And upon that point I refer to 10 Pickering, 478, and to 9 Cowen, 711; and not only upon that point, but upon the point I made at first, that whenever you put such a man upon the stand that of itself amounts to a promise of absolute immunity:
The object of admitting the evidence of accomplices is in order to effect the discovery and punishment of crimes which cannot be proved against the offenders without the aid of an accomplice's testimony. In order to prevent this entire failure of justice recourse is had to the evidence of accomplices.--I Phillips on Evidence, 107.
If, therefore, there be sufficient evidence to convict without his testimony, the court will refuse to admit him as a witness.--Roscoe's Criminal Evidence, 127.
Neither do I believe that Mr. Rerdell had a right to go upon the stand until his case was finally disposed of. Precisely the same language is used by Wharton on Criminal Evidence, 439:
An accomplice is used by the Government because his evidence is necessary to a conviction.
That is the opinion of Mr. Justice MacLean, in 4 MacLean's Circuit Court Reports, 103.
Mr. Merrick. If not improper I may remark that all those cases refer to a condition of things prior to the trial in which the party appears as the witness.
Mr. Ingersoll. The usual question is--and the court determines that question--whether a man shall be a witness or not.
The Court. How can the court determine that without passing upon the evidence in the case? That is not the duty of the court; it belongs to the jury.
Mr. Ingersoll. The prosecuting attorney has to pass upon that himself when he makes up his mind to put him upon the stand; and he only has the right to do that when he believes that no conviction can be had without that testimony.
The Court. Then it belongs to the prosecuting attorney.
Mr. Ingersoll. I go further than that, and say that the prosecuting attorney cannot do that without consultation with the court, and without saying to the court that he believes no conviction can be had without that testimony.
Mr. Merrick. May I be allowed to suggest a point which probably you would like to comment upon--that all these cases refer to accomplices prior to the trial. My own opinion in reference to the case was that I would not put Rerdell upon the stand until he had pleaded guilty.
The Court. I do not see the ground for the distinction between the cases. Undoubtedly, when an accomplice goes over to the Government and offers his testimony, he does it always in the hope of pardon or immunity from prosecution.
Mr. Ingersoll. That is all I want at present. I want it understood, if the Court please, that I shall argue to the jury that at the time he made up his mind to go to the Government, he understood that that meant immunity.
The Court. Oh, well, of course it did.
Mr. Ingersoll. The next point is that the Court has to take all his story or none; and I read from the second volume of Starkie on Evidence, side-page 24:
In judging of the credit due to the testimony of an accomplice, it seems to be a necessary principle that his testimony must be wholly received as that of a credible witness or wholly rejected. His evidence on points where he is confirmed by unimpeachable evidence is useless. The question is whether he is to be believed upon points where he received no confirmation. And of this the jury are to form their opinion from the nature of the testimony, his manner of delivering it, and the confirmation which it receives derived from other evidence which is unsuspected. If his character be established as a witness of truth, he is credible in matters where he is not corroborated. If, on the other hand, nothwithstanding the corroboration upon particular points, doubts and suspicions still remain as to his credit, his whole testimony becomes useless.
That is the point I want to make. If they are only to take his evidence where it is corroborated, they might as well have had the corroboration in the first place without him.
Now, gentlemen, the evidence, in my judgment, shows, and shows beyond a doubt--and I believe it is now admitted--that at the time Mr. Rerdell made up his mind to go to the Government he expected that he was to have absolute immunity. You must judge of his evidence in the light of that fact, in the light of that knowledge, in the light of what had been told him by his counsel. Now, it is for you to say. You know something of this man. You have seen him from day to day. You saw his manner upon the stand. Why, they tell you that at one time he was overcome with emotion, and that that is evidence that he was telling the truth. It may be that there is left in that man some little spark of goodness still. When he was swearing, or endeavoring to swear, away the liberty of the man who had been his friend, may be at that time the memory of the past did for a moment rush upon him. He may have remembered the thousand acts of kindness; he may have remembered the years of liberality; he may have remembered the days that he had spent beneath that hospitable roof; he may have remembered the wife and children; he may have remembered all these things, and for just that moment he may have realized what a wretch he was. In no other way can you account for his having emotion.
But I am about through with that gentleman. I shall not take up your time in the remainder of my speech by commenting upon Mr. Rerdell. Let us finish his testimony now; let us put him out of sight; let us put him in his coffin, close the lid, nail it down:
First nail--affidavit of June 20, 1881; drive it in.
Second nail--the letter of July 5, 1882, when he says that affidavit of 1881 was made by the persuasion of Bosler; drive it in.
Third nail--affidavit of July 13, 1882, where he swears that they were all perfectly innocent.
Fourth nail--the pencil memorandum; drive that in.
Fifth nail--the tabular statement that gave thirty-three and one-third per cent, to Brady; drive it in.
Sixth nail--his pretended letter to Bosler telling about the advice of Brady; drive that in.
Seventh nail--the letter he pretends that Dorsey, on the 13th of May, 1879, wrote to Bosler, the copies being made by Miss White; drive that in.
Wind his corpse up in the balance-sheets from the red books made by Donnelly.
Then you want a plate for his coffin. Let us paste right on there the Chico letter, April 3, 1878.
Now, we want grave-stones. Let us take the red books, put one at his head and one at his feet.
And let his epitaph, written upon the red book placed at his head, be--Up to this moment I have been faithful to every trust.
My prayer to Gabriel is, "When you pass over that grave don't blow."
Let him sleep. There are, there never were, there never will be twelve honest men who will deprive any citizen of his liberty upon the evidence of a man like Mr. Rerdell. It never happened; it never will.
And now, gentlemen, it becomes my duty to answer a few points made by the gentlemen who have addressed you on behalf of the Government. The first gentleman who addressed you was Mr. Ker, and he had something to say--considerable to say--about what are known as the Clendenning bonds.
They claim, gentlemen, first, that an immense fraud was in view when these proposals--I think they are proposals--with accompanying bonds and oaths of sureties were sent to Mr. Clendenning. I wish to give you, in the first place, my explanation of this paper. See if I understand it.
If you sent this paper to that officer or to that gentleman as a form to guide him in making up the bonds, you would only fill up that portion of the bond in giving him a sample which you wanted him to fill up, and you would fill it up in order to show him exactly how he was to fill it up; and you would leave out that part which was already filled up in the bond. That is exactly what was done in this case. There was not one of those bonds that had an oath of the surety or the names of the sureties, because they were unknown. The names were unknown, and the amounts that the postmaster would certify to, and so all that was left in blank in the bond sent. But this being only a sample, it was sent to him so that he might know how to fill up the bonds that were sent. Consequently that portion which was absolutely blank in the bond sent would be filled up as a guide to him, and that portion which was filled up in the bonds sent would be left blank in the guide, because he had nothing to do with that part. Now, that is all there is to it.
What was left out, as they claim? Why they claim that the name of the bidder was left out and the amount of the bid. It makes no difference.
That is not the slightest evidence of fraud, is it?
What was the next thing? They were never used, never. No bond included in that bundle was ever accepted by the Government. No bonds were ever made, no contract ever based upon them, not a solitary cent taken from the Government by those papers. Why, then, this secrecy? Because when a man is in this business he does not want anybody else to know that he is bidding, in the first place; and, in the second place, he does not want anybody to know the amount of the bid. If the amount of the bid is put in, then the persons going security will know it, and they may tell. The postmaster who approves the security will know it, and he may tell. The object of the secrecy is not to defraud the Government, but to prevent other people finding the amount of the bid and then underbidding. That is the object, and it is the only object. And yet this little, poor, dried-up bond, soaked in the water of suspicion, swells almost to bursting in the minds of the counsel for the prosecution. There is nothing of it. It was never worthy of mention, in the first place. You will never think of it when you retire. It will never enter your minds; but if it does, remember that the object of the secrecy was simply as a precaution against other bidders, and had nothing whatever to do with the Government.
There is one other point. I believe Mr. Dorsey did say, in his examination-in-chief, that he did not talk to anybody about it, and it afterwards occurred that he did go and ask Mr. Edmunds whether what he had asked Clendenning to do was illegal or improper. To that contradiction you are welcome.
Mr. Ker gives the date of Boone's circular to postmasters asking for information, and says it was dated December 1, 1879. Thereupon Mr.
Merrick corrects him, and says it was in 1878. The Court does the same. As a matter of fact, these circulars were dated December, 1877.
Gentlemen, I just simply speak of this to show how easy it is for people to be mistaken. Those circulars were gotten up for the purpose of getting information before bidding. All the bids were put in in February, 1878. The circulars were sent out, I believe, in November and December, 1877. And yet upon that one point Mr. Ker is mistaken two years.
On page 4512 Mr. Ker states that Miner, in April, 1878, said to Moore that it all depended upon affidavits of the contractors, and that "they were all good affidavit men." The object of this, if it had an object, was to show that this conspiracy was entered into with Moore, and that S. W. Dorsey was a part of it in April, 1878. The evidence of Moore is that the conversation took place, not in April, but in July, 1878, at the city of Denver. And yet Mr. Ker tells you that it was in April.
1878. It is not, perhaps, a very material point, but it simply serves to show you the manner in which this evidence is repeated to you by the counsel for the prosecution.
At page 4537 Mr. Ker says that before J. W. Dorsey went West he made an arrangement with his brother to sell out his interest for ten thousand dollars; that he did this before he started West; that he did it before there was any service put on; and that these contracts were taken at such low figures; yet John W. Dorsey had raised his interest up to ten thousand dollars. Mr. Ker tells you that the evidence shows that before any service was put on and before John W. Dorsey went West he tried to sell out his interest for ten thousand dollars. Now, what was the object in making this statement, unless it was pure forgetfulness? Why it was to connect Vaile with this business some time in April, 1878.
On pages 4100 and 4102 J. W. Dorsey swears that he was here in Washington in November, 1878; before that time he had gone to the Tongue River route; he had come back from Bismarck; and it was then, not in April; it was then, not before he went West; it was then, not before any service was put on, that he talked with Vaile about selling out to him for ten thousand dollars; and it was in November that he left the instructions for his brother to sell to Vaile. It was not in April; it was not before he went West; it was not before any service was put on.
At page 4540 Mr. Ker states that--Dorsey held thirty-three routes, and there was not one of them, I suppose, that was not expedited to the fullest extent.