And in this case I cite Dorsett's case, 5th Roger's Record, 77:
"On an indictment for coining there was an alleged possession of a die made of iron and steel, when, in fact, it was made of zinc and antimony.
The variance was deemed fatal."
And yet it was not necessary to state of what the die was made. If the indictment had simply said he had in his possession this die, it would have been enough, but the pleader went on and described it, saying it was made of iron and steel. It turned out upon the trial that it was made of zinc and antimony, and the variance was held to be fatal. So I cite the court to Wharton's American Crim. Law, 3rd edition, page 291, and to Roscoe on Criminal Evidence, 151. Now I cite the case of the United States against Foye, 1st Curtis's Circuit Court Reports, 368, and I do not think it will be easy to find a case going any further than this. It goes to the end of the road:
"A letter containing money deposited in the mail for the purpose of ascertaining whether its contents were stolen on a particular route and actually sent on a post-route, is a letter intended to be sent by post within the meaning of the post-office act."
This I understand was a decoy letter.
"The description of the termini between which the letter was intended to be sent by post cannot be rejected as surplusage, but must be proved as laid."
Upon that the court says:
"But a far more difficult question arises under the other part of the objection. The indictment alleges, not only that this letter was intended to be conveyed by post, but describes where it was to be conveyed; it fixes the termini as Georgetown and Ipswich. The allegation is, in substance, that the letter was intended to be conveyed by post from Georgetown to Ipswich. The question is, whether the words from Georgetown to Ipswich can be treated as surplusage. It was necessary to allege that the letter was intended to be conveyed by post. The words from Georgetown to Ipswich are descriptive of this intent. They describe, more particularly, that intent which it was necessary to allege. In United States vs. Howard, 3 Sumner, 15, Mr. Justice Story lays down the following rule, which we consider to be correct: 'No allegation, whether it be necessary or unnecessary, whether it be more or less particular, which is descriptive of the identity of that which is legally essential to the charge in the indictment, can ever be rejected as surplusage.' Apply that rule to this case. It is legally essential to the charge to allege some intent to have the letter conveyed somewhere by post. Suppose the indictment had alleged an intent to have it conveyed between two places where no post-office existed, and over a post-route where no postroad was established by law. Inasmuch as the court must take notice of the laws establishing post-offices and post-roads, the indictment would then have been bad; because this necessary allegation would, on its face, have been false. Words, therefore, which describe the termini and the route, and thus show what in particular was intended, do identify the intent, and show it to be such an intent as was capable, in point of law, of existing.
"And we are obliged to conclude that they cannot be treated as surplusage, and must be proved, substantially, as laid. We are of opinion, therefore, that there was a variance between the indictment and the proof; and that, for this cause, a new trial should be granted."
So I refer to the State vs. Langley, 34th New Hampshire, 530.
The Court. I think, Colonel Ingersoll, there is no doubt about this doctrine.
Mr. Ingersoll. I do not want any doubt about it.
The Court. There cannot be.
Mr. Ingersoll. Well, I will just read this because I do not want any doubt about it in anybody's mind.
The Court. I have no doubt about it.
Mr. Ingersoll. Very well:
"If a recovery is to be had, it must be _secundum allegata et probata_; and the rule is one of entire inflexibility in respect to all such descriptive averments of material matters. The cases upon this point, many of which are collected in the case of State vs. Copp, 15 N. H., 2F5, are quite uniform."
Now, if the Court please, I not only read this with regard to the overt acts, but with regard to the description of the crime itself--the conspiracy. I will then refer to State against Copp, 15th New Hampshire.
I will also refer to the case of Rex against Whelpley, 4th Carrington & Payne, 132; to 3d Starkie on Evidence, sections 1542 to 1544, inclusive; also to the United States against Denee and others, 3d Wood, page 48, and a case under this exact section, 5440:
"It seems clear that the statute upon which this indictment is based is not intended to relieve the pleader from any supposed necessity of setting out the means agreed upon to carry out the conspiracy by requiring him to aver some overt act done in pursuance of the conspiracy and make such act a necessary ingredient of the offence." The court then refers to the Commonwealth against Shed, 7th Cushing, 514, and continues--in that case it was different:
"That difficulty does not exist here, for the overt act is part of the offence, and must be proved as laid in the indictment."
So I find that the court passed upon this very question, and I wish to call the attention of the Court again to one line on page 961 of the record in this case:
"But in all cases the principle is simply this: That where the act which was done in pursuance of the conspiracy is described in the indictment it must be described with accuracy and completeness, and if there is a variance in the proof it is fatal to the prosecution."
When I come to that part as to the necessity of describing offences then I will cite the Court to some other authorities in connection with these.
Now, then, we have got it established, gentlemen of the jury. There is no longer any doubt about that law, and the Court will so instruct you, that wherever they set out in the indictment that we did a certain thing in pursuance of the conspiracy, they must prove that thing precisely as charged, no matter whether the description was necessary or unnecessary.
They must prove precisely as they state. They wrote the indictment, and they wrote it knowing they must prove it, and if they wrote it badly it is not the business of this jury to help them out of that dilemma.
Now, as I say, we come to the dust and ashes of this case, the overt acts, and I take up these routes precisely in the order in which they were proved by the prosecution. First. I take up route 34149. Now, let us see where we are. The first charge is that we filed false and altered petitions by Peck, Miner, Vaile, and Rerdell. When did we file them?
The indictment charges that we filed them on the 10th day of July, 1879.
When did the evidence show they were filed? On the 3d day of April, 1878. That is a fatal variance, and that is the end eternal, everlasting, of that overt act. Without taking into consideration the fact that every petition was true and genuine, the petitions were not sent by the persons as charged. It was presented by Senator Saunders, and that is the absolute end of that overt act, and you have no right to take it into consideration any more than if nothing had been said upon the subject.
Second. That on the 10th of July a false oath was placed upon the records. Now, that is an overt act, and you know as well as I do that the description of that must be perfect. If they say it is of one date and the evidence shows that it is of another, it is of no use. It is gone. They say, then, that a false oath was filed. When? On the 10th day of July. Suppose the oath to have been false. When was it filed?
The evidence says April 3, 1879. That is the end of the false oath, no matter whether that oath is good or bad. No matter whether they committed perjury or wrote it with perfect and absolute honesty, it is utterly and entirely worthless as an overt act.
Third. An order for expedition July 10, 1879, alleged to have been made by Brady. As a matter of fact the order was signed by French. There is a misdescription. No matter if Brady told him to sign it, it was not as a matter of fact signed by Brady--it was signed by French. They described it as an order signed by Brady. It is an order signed by French, and the misdescription of variance is absolutely fatal, and you have no more right to consider it than you have the decree of some empire long since vanished from the earth. Now, this is all the evidence on this route.
That is all of it with the exception of who received the money, and I will come to that after awhile. That is route 34149.
According to their statement in the indictment, holding them by that, there is not the slightest testimony. We can consider that route out.
We have only eighteen now to look after. That is the end of that. It has not a solitary prop; upon the roof of that route not a shingle is left--not one.
Let us take the next route, 38135. What do we do in that according to the indictment? And now, gentlemen, recollect, they wrote this indictment. You would think we did, but we didn't. They wrote it, and they are bound by it. But if I had been employed on behalf of the defendants to write it I should have written it just in that way.
First. Sending and filing a false oath. When did we send it; when did we file it? On the 26th day of June. That is what the indictment says. What does the evidence say? April 18, 1879. Now, that is the end of that.
It was a true oath, but that does not make any difference. That oath is gone. That has been sworn out of the case, and dated out of the case.
What is the next?
Second. Filing false petitions. When did we file them? The 26th day of June, 1879. The last petition was filed the 8th of May, 1879, and it does not make one particle of difference whether these dates were before or after the conspiracy as set forth, but as a matter of fact, every one of the petitions was true. That charge is gone, A fatal variance. What is the next fraudulent order? That of June 20. There was never the slightest evidence introduced to show that it was a fraudulent order--not the slightest. And what is the next charge? Fraudulently filing a subcontract. And right here I stop to ask the Court, of course not expecting an answer now, but in the charge to the jury, is it possible to defraud the Government of the United States by filing a subcontract?
Now, gentlemen, I want you to think of it. How would you go to work to defraud the Government by filing a subcontract? If the subcontract provides for a greater amount of pay than the Government is giving the original contractor, the Government will not pay it; it will only pay up to the amount that it agreed to pay the contractor. It is like A giving an order on B to pay C what A owes B. He need not pay him any more. That is all. And if the ingenuity of malice can think of a way by which the Government could be defrauded by the filing of a subcontract I will abandon the case. It is an impossible, absurd charge, something that never happened and never will happen. Well, that is the end of this route with one exception. This is the Agate route. This is the route where thirty dollars it is claimed has been taken from the Government.
It is that route. You remember the productiveness of that post-office.
They established an office and nobody found it out except the fellow that was postmaster, and in his lonely grandeur I think he remained about eighteen months and never sold a stamp. That is all that is left in that route, that order putting Agate upon the route and taking it off, and then giving one month's extra pay. That is all--another child washed--38135--that is all there is to that route; no evidence except epithets, no testimony except abuse. If anything is left under that it is simply "robber, thief, pickpocket." That is all.
Now we come to another route, and I again beg pardon for calling attention to these little things. The Government has forced us to do it. It is like a lawsuit among neighbors. Each is so anxious to beat the other they begin to charge for things that they never dreamed of at the time they were delivered. They will charge for neighborly acts, time lost in attending the funeral of members of each other's family before they get through the lawsuit. So the Government started out in this case, and not finding a great point had to put in little ones, and we have to answer the kind of points they make.
41119. Overt acts. First. Filing a false oath. When did we file it? The 25th day of June, the indictment says. Who filed it? Peck and Miner.
Well, when was it filed or when was it transmitted? According to their story, June 23, 1879. This oath is marked 8 C, and an effort was made to prove by a man by the name of Blois that it was a forgery. That was objected to, first, that it was not charged to be forged in the indictment; and second, that a notary public had already sworn that it was genuine, and that he could not be impeached in that way, and thereupon that oath was withdrawn, and you will never hear of it any more. I do not know whether it is true or not. That is found on record, page 1469. Now, recollect that oath was withdrawn. That is the end of it.
Second. Filing false petitions. When were they filed? July 8, 1879, and it turned out that that charge was true, with two exceptions: First, that they were not filed at that time; and, second, that all the petitions were true. That is the only harm about that charge.
Third. A fraudulent order made by Brady, July 8th. Now let us see what the fraud consists in. The fraud is claimed to be in expediting to thirty-three hours when the petition only called for forty-eight. You remember the charge expediting to thirty-three hours, when the petition only called for forty-eight. Now, let us see. It is claimed that to grant more than the petitions ask is a crime; certainly it must be admitted that to grant less is equally a crime. The only evidence now of fraud in this is that he was asked to expedite the forty-eight hours, but he expedited to thirty-three. That is to say, he violated the petitions, and if that is good doctrine, then the petitions must settle whether expedition is to be granted or not. If that is good doctrine there is no appeal from the petition. I do not believe that doctrine, gentlemen. I believe it is the business of the Post-Office Department to grant all the facilities to the people of the United States that the people need. He must get his information from the people, and from the representatives of the people; and while he is not bound to give all they ask, if he does give what the people want, and what their representatives indorse, you cannot twist or torture it into a crime.
That is what I insist. Now, the only charge is here, and while they ask for forty-eight hours he gave thirty-three. That is the only crime. Did he pay too much for it? There is no evidence of it. Before I get through I will show you that there is no evidence that he ever paid a dollar too much for any service whatever.
Now, then, if the doctrine contended for by the Government is correct, then a petition is the standard of duty and the warrant of action, and if they gain upon this route they lose upon every other route. Let us examine. There are three charges. First, false petitions. They were all true. Second, false oaths. They offered to prove it, and then withdrew it. Third, that while the petitions called for forty-eight hours he granted thirty-three, and before you can find that that was fraudulent you must understand the precise connections that this mail made with all others, and it was incumbent upon them to prove, not an inference, but a fact, that there was not only reason, but reason in money--sound reason for expediting it instead of forty-eight to thirty-three. That is the end of that route. There is not a jury on earth, let it be summoned by prejudice and presided over by ignorance, that would find a verdict of guilty upon the testimony in that route. It is impossible. Another child gone.
44155. Let us see what we get there, and I have not got to my client yet. First, filing false petitions, by Peck, Miner, Vaile and Rerdell.
When? On the 27th of June, 1879. Were they false? Let us see. Mr. Bliss, speaking of these petitions contained in a jacket held in his hand, dated the 29th of June, 1879, record, page 687, said: "We do not attack the genuineness of these petitions." That is the end of that. So much for that.
Second. A fraudulent order increasing service, and yet all the petitions are admitted to be genuine, and the order was in accordance with the petitions on the route. Before the order was fraudulent because it was not in accordance with the petitions, and in this route it is a fraud because it is in accordance with the petitions. Now, just take it.
Here is the route. Every petition is genuine, the oath is true, not a petition attacked, the order in accordance therewith, and the only evidence that the order is a fraud is that it was in accordance with genuine petitions recommended by the people and by the representatives of the people. That is all.
Let me tell you another thing. Expedition had been granted on the route long before, and this was simply an increase of trips, and no charge was made that the order granting the expedition ever was a fraud.
Third. Another fraudulent order by Brady, of April 17, 1880, and it turns out that this order was in fact made by French. That was the only evidence that it was fraudulent, but the mere fact that French made it takes it out of this case, and you have no more right to consider it than you would an order made in the Treasury Department. The only objection to this order now is what? That it was in violation of the petitions. How? That it took off one or two of the trips. That was the fraud of the order of April 17, 1880. The fraud consisted in taking off two or three trips that had been put on.
Now, let us see. The next fraudulent order was July 16, 1880. What was that for? For putting the service back precisely as it was. Now, I want you, gentlemen, to understand that, every one of you. Here is a charge in the indictment of a fraudulent order that took off, say, two trips from the service. That is a fraud they say. Then the next order put those two trips back, and that they say is another fraud. It would have been very hard to have made an order in that case to have satisfied the Government; it was an order to decrease it; it was an order to put it back where it was; that is, it was a fraud, consequently it was a fraud to do anything about it. That is all there is in that case.