Now, gentlemen, there is no pretence, there is no evidence that every subcontractor did not get the per cent, mentioned in his subcontract, except one, and that was Mr. French, on the route from Kearney to Kent; and the evidence there is that Miner settled with him, I believe, and gave him a certain amount of money in lieu of expedition. That is the solitary exception.
Now, gentlemen, I come to a most interesting part of this discussion, and I hope we will live through it. In the first place, what is a conspiracy? Well, in this case, they must establish that it was an agreement entered into between the persons mentioned in this indictment, or two of them, to defraud the Government. How? By the means pointed out and described in the indictment. While it may not be absolutely necessary to describe the means, I hold that if they do describe them, tell how the conspiracy was to be accomplished, they are bound by their description; they must prove such a conspiracy as they describe. If a man is indicted for stealing a horse and the color of the horse is given, it will not do to prove a horse of another color. If they describe the offence they are bound by the description.
Now, this is a conspiracy entered into, as they claim, by the persons mentioned in the indictment, to do a certain thing. What is the object of the conspiracy? To defraud the Government. And, gentlemen, I believe the Court will instruct you that the conspiring is the crime. The object of the conspiracy is to defraud the United States. What are the means?
According to this indictment false petitions, false oaths, false letters, false orders. What I insist on is that the means cannot take the place of the object; that the means cannot take the place of the conspiracy described. When you describe a conspiracy by certain means to defraud the Government, and set out the means so that the Second Assistant Postmaster-General is a necessity, then you cannot turn and shift your ground, and say that it was not the conspiracy set out in the indictment, but that it was a conspiracy to do some of the things recited as means in the indictment; you cannot say that it was not a conspiracy entered into with the Second Assistant Postmaster-General, but was a conspiracy entered into with some others to make a false petition or a false affidavit. The ostrich of this prosecution will not be allowed to hide its head under the leaf of an affidavit. They must prove, in my judgment, the conspiracy that they describe in the indictment, and none other.
Now, what else? You must be prepared, gentlemen, when you make up a verdict, if you say that there was a conspiracy, to say when it was entered into and who entered into it. And I suppose when you retire, the first question for you to decide will be: Was there a conspiracy? Has any conspiracy been established beyond a reasonable doubt? If you say yes, then the next question for you to decide is, who conspired? Who were the members of that conspiracy?
After you do that there is one other thing you have to do: You have to find that one of the conspirators, for the purpose of carrying the conspiracy into effect, did something; that is called an overt act.
You have to find, that at least one of them did something to effect the object of that conspiracy. You must remember, gentlemen, that the overt act must come after the conspiracy. In other words, you cannot commit an overt act and make a conspiracy to fit it; you must have the conspiracy first, and then do an overt act for the purpose of accomplishing the object of that conspiracy. The conspiracy must come first, and the overt act afterwards. You all understand that now.
Now, this indictment is so framed that the earliest time within the life of the statute of limitations for an overt act is the 23d day of May, 1879. Why? The indictment charges that as the day, the conspiracy was entered into. Any overt act in consequence of that conspiracy must have been done after the 23d of May, 1879. Now, get that in your heads, level and square. The conspiracy, according to this, is not back of the 23d of May, 1879, and any overt act done, in order to be considered an overt act, must be done after the date of that conspiracy. If they prove any act done before that time, it shows that it was not an overt act belonging to the conspiracy mentioned in the indictment. If it is an overt act at all, it is an overt act of another conspiracy entered into before the date mentioned in this indictment, and consequently will not do for an overt act in this case. Now, I want you all to understand that.
I forget how many overt acts are charged in this indictment; some sixty or seventy, I think. And understand me, now, gentlemen, no matter what date they fix to an overt act in the indictment, no matter whether there is any date to it or not in the indictment, if it turns out to have been done before the time fixed for the conspiracy it is dead as an overt act: it is good for nothing. The overt act is the fruit of the conspiracy; the conspiracy is not the result of the overt act. Now let me make a statement to you, so that you will understand it.
Every petition, every letter, every affidavit, upon which orders for expedition were based, was filed before the 23d of May, 1879, except on two routes--Toquerville to Adair-ville and Eugene City to Bridge Creek.
If that is true, then not a solitary petition filed in this case can be considered as an overt act; and a conspiracy without an overt act is nothing; it simply exists in the imagination; it is an agreement made of words and air, and never was vitalized with an act done by one of the conspirators for the purpose of giving it effect. Recollect that every petition, every affidavit, every letter filed, was filed before the 23d day of May, with the two exceptions I have mentioned. That is the date when the conspiracy came into being. And consequently an overt act must be after that time.
Now,'when they came to write this indictment, why did they not tell the truth in it? I do not mean that in an offensive sense, because a man has the right to write in that indictment what he wants to. That is a matter of pleading. But why did they not tell the facts? Why did they put in the indictment that a certain petition was filed on the 26th day of June, when they had the petition before them and knew that it was filed in April, 1879? Why did they put in that indictment that a certain affidavit was filed on the 26th or 27th of May, I think it was, when they knew that it was filed in April or March? Why? Because if they had put that in the indictment the indictment would have been quashed, so far as their overt acts were concerned. The Court would have said, "I cannot allow you to put on paper that a man entered into a conspiracy on the 23d of May, and then did an act to carry that conspiracy into effect in April before that time. I cannot allow you to do that, because that is infinitely absurd, and pleadings have to be reasonable on their face." But you see they stated that this was done after the conspiracy.
They had to do it or they would be gone. I believe there is no dispute about this law that if they describe the overt act--and they must describe it, because it is a part of the offence--that is, the offence is not complete without it--they must prove it exactly as they describe it.
If they describe it with infinite minuteness, they must prove it with infinite minuteness. If they set out that an affidavit was written on bark, they must produce a bark affidavit. If they were foolish enough to say it was written in red ink they must produce it in red ink. If they allege that an oath was sworn to twice before two notaries public they must produce an oath sworn to twice. They are bound to prove exactly what they charge, and if they were too particular about it that is their fault, not ours.
I say that all these, with the exception of the two routes I have named, were filed too early to play any important part in this case. Now, I will come to those routes. Remember, that every overt act must be after the conspiracy. There are two exceptions, and those two exceptions include petitions and affidavits. And there is a splendid kind of justice in the way this thing is coming out, so far as that is concerned.
The petitions filed on the Toquerville route and on Bridge Creek route, I believe, are genuine; I believe the Government admits that they are honest; and they were not attacked except upon one point, and that was that a daily mail did not mean seven times a week. The point made by the Government was that a daily mail meant six trips a week--that is, where you have them every day. We took the ground that daily mail meant a mail every day, and that in the Western country, as here, they have seven days in a week.
We contended that you cannot have a daily mail without having seven trips a week. I think that was the only point made against these petitions--that they were for a daily mail, and that somebody put in a figure 7.
No petition for increase of service alone was ever attacked by the Government in this case, except 25 L, on The Dalles route, and 20 H and 29 H, on the Canyon City route. 25 L was filed April 23, 1879. That was one month before the conspiracy had life. Consequently that is mustered out of this case as an overt act.
23 L was filed June 27, 1879, and is in time, provided it had been a dishonest petition. And it is the only petition filed on the date alleged in the indictment, and it was not attacked. It was signed by the business men of Baker City, and is set out, I believe, on page 1617.
20 H was filed May 7th. That is not in time. That is gone.
29 H has no file mark, and never was proved. So that goes.
All the allegations as to false petitions for increase of service--and by that I mean additional trips--are shown to have been genuine, honest, true petitions.
There are but two affidavits, one correctly described. Both were made by Peck. Mr. Bliss admits that Peck had nothing to do with any of these routes after April 1, 1879, and both of them were made by Peck, and were sworn to before that date.
The affidavit on the Toquerville route was filed by M. C. Rerdell, who swears that he was not in any conspiracy to defraud the United States; that he was not in a conspiracy with Vaile and Miner and John W. Dorsey, nor with anybody else. It was filed by the subcontractor of record, M.
C. Rerdell, and it is the same route on which Mr. Rerdell, by virtue of his subcontract, appropriated about five thousand dollars of money belonging to other people.
The other exception is on the Bridge Creek route, and, strange as it may appear, that was also filed by Mr. Rerdell.
And, strange as it may appear, it has not been successfully impeached as to the men and horses necessary under the existing and proposed schedule. The overt act is not proved, because the oath is not proved to be false, and because Peck and Rerdell, according to Mr. Bliss's admission and according to Rerdell's oath, were not in the conspiracy, and the overt act has to be done by one of the conspirators, of course.
The Court. I understood--I do not know whether I have been under a delusion all this time or not--that the indictment charged that these affidavits and false petitions were the means by which the conspiracy was to be carried into execution; that they were not the overt acts. If they had been set out as overt acts in the indictment, the Court would have seen that they antedated the time, and if an objection had been made to them the Court would not have received them as overt acts.
The reason why they have been admitted and regarded as in the case all along, to my mind, was that they were acts tending to prove, so far as they tended to prove anything, the nature of the combination between these parties anterior to the 23d of May.
Mr. Ingersoll. Before the conspiracy.
The Court. Before the conspiracy. So that whatever character belonged to that association anterior to that time, if it was continued on after that time, carried out with overt acts done subsequently to that time, they were properly received as evidence going to establish the conspiracy--not as overt acts, but as means to show the character of the combination amongst the parties anterior to that date.
Mr. Ingersoll. That saves me a great deal of argument. Now, I understand, gentlemen, that the Court will instruct you that you cannot take any petition, any letter, any oath, any paper of any kind that was filed or written or used prior to the 23d of May, 1879, as an overt act; that all that that evidence is for is to show you the relation sustained by the parties before that time.
The Court. Yes; you are right.
Mr. Ingersoll. Now, that saves a great deal of trouble.
There are on the Toquerville and Adairville route, and on the Eugene City and Bridge Creek route, petitions filed after the 23d of May, 1879, set out in indictment as overt acts. I shall insist, if the Court will allow me, that if there is no evidence that those petitions were dishonest, no evidence going to show that they were not genuine, those petitions cannot be used as overt acts for the reason that they are charged in the indictment as false and fraudulent petitions. So, gentlemen, I take that ground, that as to the petitions filed after the 23d day of May on the only two routes left for these gentlemen to find overt acts upon (Eugene City to Bridge Creek, and Toquerville to Adairville), if those petitions have not been proved to be false they cannot be regarded as overt acts for the reason that they were described in the indictment itself as false and fraudulent petitions. It is perfectly clear, is it not?
What else have we left? A couple of affidavits. Who made them? Mr. Peck.
When? Before the 1st day of April, 1879, and Mr. Bliss admits that from that time on he never had anything to do with this business. Mr. Rerdell filed them, and Mr. Rerdell swears that he was never in any conspiracy; and Mr. Bliss admits that Peck, after the 1st of April, had nothing to do with this business. That substantially knocks the bottom out of that dish.
Now, they attacked the affidavit on the Bridge Creek route, but they did not succeed in showing that it was not an honest affidavit.
Now, gentlemen, after what the Court has decided I want to call your attention to another thing.
Do not forget what the Court has decided--that all these things are not overt acts, but that they simply show the relations of the parties.
Now, if you go and find Vaile and Miner getting up petitions on their routes, and you also find Dorsey getting up petitions on his routes, then they claim that that is the result of an agreement between them.
That is not the law. Neither is there in that the scintilla of common sense. If I find you plowing in your field and your neighbor plowing in his field, I have no right to draw the conclusion that you have conspired to plow or to help each other. But if I find your neighbor and you plowing in your field, and I afterwards find you and your neighbor plowing in his field, I have the right to conclude that you have swapped work and that you have something in common. If I find you plowing in your field and your neighbor walking behind you sowing grain or dropping corn, and then I find you in the fall shucking out the corn together, and I find your neighbor taking half of it to his barn and you taking half of it to your barn, I make up my mind that you have had some dealings on the corn question.
Now, we find that on May 5, 1879, these parties absolutely divided, and after that, when Vaile and Miner got up a petition on their route, Dorsey did not help them; and when Dorsey got up one on his, Vaile and Miner did not help him. That shows what the relations of the parties were. Does that show that they were then in a conspiracy? Does it show that they had any conspiracy before that time? They had separated their interest; they had ceased to act together; one did nothing for the other. If there had been a conspiracy before that time that conspiracy died on the 5th of May, 1879; and if it did, then there is no possibility of any conviction in this case, no matter what the evidence is--not the slightest.
Now, I want you to understand that ground exactly. I am not begging the question. I am not afraid to meet every point, every paper, every scratch, in this case. But I want you to understand it. All those things were allowed for the purpose of showing the relations of the parties, the relations that the defendants sustained to each other; and the evidence is that they sustained no relations to each other after 1879; that each went his own road to attend to his own business in his own way. That is the evidence.
Now comes the next point. What are the overt acts in the indictment?
Really they are the orders made by Mr. Brady, unless you take this poor little affidavit made by Peck and filed by Rerdell.
Then comes the next point. You cannot treat anything as an overt act unless it was made by one of the conspirators. Is there any evidence in this case that Mr. Brady ever conspired with anybody? Not the slightest.
And unless he conspired with us, any other made by him cannot be regarded as an overt act in this case. I think everybody will admit that. Unless Brady conspired with us, and we with him, any order of his cannot be regarded as an overt act.
I ask you, gentlemen, what evidence is there in this case that Mr. Brady ever conspired with any of these defendants? I will answer that question before I get through, and I think I will answer it to your entire satisfaction.
I will go a step further in this case, and I may go a little further than the Court will go. I say that when they state in that indictment that an order is made for the benefit of Miner, Vaile, and Dorsey, and the evidence is that it was made for the benefit only of Vaile and Miner, that is a fatal variance, and it cannot be treated as an overt act for any conspiracy. And when the indictment charges that an order was made for the benefit of S. W. Dorsey, and Vaile, and Miner, and it turns out that it was made for the sole benefit of S. W. Dorsey, I claim that that is a fatal variance.
Gentlemen, I was going through all these overt acts and all these terrible false claims. But the decision of the Court has utterly and entirely relieved me from that duty. So I will turn my attention to another person.
The next defendant to whom I may call your attention is Mr. John W.
Dorsey. It is claimed that John W. Dorsey was one of the original conspirators; that he helped to hatch and plot this terrible design.
Let us see what interest John W. Dorsey had. You have heard me read the agreement he made, have you not, with Miner? Now, let me read to you the agreement that he made on the 16th day of August, 1878. Now, we will find out what interest John W. Dorsey had in all this conspiracy. On the 16th of August, 1878, there was no reason for telling any lie about it. They could not get on the routes in August, 1878; they had not the money, and so they took in Vaile. At that time, gentlemen, there was no reason for their writing anything in this paper that was not true, not the slightest. And I take it for granted that most people tell the truth when there is no possible object in telling anything else, if their memory is good:
4th. The profits accruing from the business shall be divided as follows: From routes in Indian Territory, Kansas, Nebraska, and Dakota, to H. M.
Vaile, one-third.