And now, in order that we may be perfectly correct, and in order to show, too, how easy it is to be mistaken, Mr. Merrick just said upon that very subject of the books and papers, that while Mr. Dorsey was upon the stand, he asked leave to consult his counsel. If Mr. Merrick will read the testimony he will find that Mr. Dorsey made that remark when he was asked about the affidavit of June 20, 1881.
Mr. Merrick. You are right.
Mr. Ingersoll. That just shows how easy it is to make a mistake when it comes to a matter of recollection.
Mr. Merrick. I think it was upon a question of the insertion of the change in the character of the affidavit--its being addressed to the President; and when I asked him if he had not made that change he asked leave to consult his counsel. For the moment I thought it was upon the books. But the substance still remains, that, on the question of the books, I asked him on his cross-examination--and the counsel will state his recollection to be the same--about the stubs and the books, and called upon him to produce them, and the counsel replied, "We will not."
Mr. Ingersoll. I presume I did. I made that reply a good many times.
Mr. Merrick. Will the counsel be frank enough to state when that decision was made?
Mr. Ingersoll. Which decision?
Mr. Merrick. When he was on the stand on cross-examination.
Mr. Ingersoll. And I said we would not produce them?
Mr. Merrick. After the testimony in chief and Rerdell was gone.
Mr. Ingersoll. Then I said we would not produce them. And now I will say that the decision of the Court was made before that time that we could not produce them, and if I do not show it then I will publicly take it back.
The Court. I do not think you can show it.
Mr. Ingersoll. If I do not, then I will beg your Honor's pardon, and if I do--if I do--Now, I think what happened afterwards in this case with that very witness justifies the course that we pursued. He also stated at the time that we had, I believe, some twenty thousand pages of letters on all possible subjects to a great number of people. We knew that there was a spirit abroad--and some of it in a part of the prosecution--to find something against somebody else somewhere. We made up our minds that our private books and correspondence never should be ransacked by this Department of Justice. We took the consequences, and we are willing to take them. We say that the inference from our refusal is an inference of fact, and must be decided by the jury, and is not an inference of law.
We have been asked a good many times why we did not put James W. Bosler on the stand. The prosecution subpoenaed Mr. Bosler. They appeared to have an affection for him. They subpoenaed him, and he came here.
Afterwards they issued an attachment for him. They had him, arrested at midnight and brought here. He gave some testimony, and you will find it on page 2611.
Mr. Merrick. I do not know that there was an attachment.
Mr. Ingersoll. You know you have a right to prove things by circumstances. Now, it is said that he put the marshal out of the house; I think that is evidence tending to show that an attachment was issued.
Mr. Ker. And kept him out with a club.
The Court. I understood also that Mr. Dorsey kicked somebody else out of his house about the same time.
Mr. Ingersoll. Oh, yes; it has been a very lively term of court.
There were two very important things that they were to prove by Mr.
Bosler, and they were patting him on the back here for weeks. Friendship sprang up between them. It was a very young plant at first, but the Bosler ivy grew upon the oak of the prosecution. I saw him sitting here, everything delightful. The prosecution, I hoped, began to flatter itself that Mr. Bosler was on their side; I hoped that was so. Finally they put Mr. Bosler on the stand. What did they want to prove by him? That Dorsey wrote a letter to him on the 13th of May, 1879, telling how much money he had given to Brady; that is one thing they wanted to prove by him.
The second thing was that Rerdell had written a letter to Bosler, I believe, on the 20th of May or 22d of May, 1880, stating that he (Rerdell) had been subpoenaed to go before the Congressional committee and take his books and papers; that he got very much frightened; that he had taken the advice of Brady and got a very valuable suggestion from Brady, which he was going to follow. They wanted to prove that by Mr.
Bosler.
Rerdell had already sworn that Dorsey sent a letter to Bosler on the 13th of May, 1879. Rerdell had sworn to the contents of that letter; that the contents were that he had paid Brady so much money, &c., which you remember, and then that he, in 1880, had written a letter to Mr.
Bosler, and I believe he pretended to have a copy of it. Now, here comes Bosler's testimony, on page 2611.
Q. Have you made a search among your papers to find a letter alleged to have been written to you by Stephen W. Dorsey, and dated on or about the 13th of May, 1879?--Yes, sir.
That is the letter that Rerdell swore about.
Q. Have you searched?--A. I have.
Q. Did you find it?-A. No, sir.
Q. Have you made search for a letter purporting to have been written by him to you, and dated on or about the 22d of May, 1880?--A. Yes, sir.
Q. Did you find that letter?--A. I did not.
The Court: Was there ever such a letter?
Bosler replied: "There never was such a letter received by me."
There is the testimony of Mr. Bosler, and on that testimony the two letters of May 13, 1879, and May 22, 1880, turn to dust and ashes.
Now, they say, "Why didn't you put Bosler on?" Not much necessity of Mr. Bosler after that. And besides, gentlemen, I believe I will take you into my confidence just a little bit. The evidence of Rerdell as to the affidavit of June 20, 1881, and the affidavit of July 13, 1882 (an affidavit in which he swore that there was nothing against Mr. Bosler, an affidavit that was made apparently for the benefit of Bosler), all that evidence, the evidence of Mr. Stephen W. Dorsey upon those questions, advertised the prosecution that Mr. Bosler knew of many circumstances; that he was present a portion of the time, and I did not know but finally the prosecution would get so much confidence in Mr.
Bosler that they would call him. I was hoping they would. They did not.
It did not work quite as I expected. That is all there is about that.
Now, there is one further point to which I wish to call your attention.
I want you to remember that a partnership is not a conspiracy, although all the facts about a partnership are consistent with the idea of a conspiracy up to a certain point; and all the facts about a conspiracy are consistent with a partnership up to a certain point. The fact that men act together does not show that they have conspired; does not show that they have a wicked design. The fact that they are engaged in the same business does not show that they have a wicked design or that they are there by conspiracy. In other words, I want your minds so that you will distinguish between a fact that may be innocent, and generally is innocent, and a fact that must be evidence of guilt. I want you to distinguish between the facts common to all partnerships, common to all agreements, and those facts that necessarily imply a criminal intent. If you wil do that gentlemen, you will have but little trouble.
[At this point a volume of the report of the trial was handed up to the Court by Mr. Ingersoll with a reference to a certain page].
The Court. Without looking at the book I take risk of saying that the Court never announced its opinion on that question until the case referred to a few moments ago.
Mr. Ingersoll. I just gave my memory on the subject. It does not make any great difference in this case, of course.
Mr. Carpenter. This is during the cross-examination of Rerdell.
The Court. Yes, the Court did state on that occasion:
That is not the point here. If they are allowed to go on and cross-examine this way without the production of the books, they cannot contradict the witness afterwards by producing the books.
I had forgotten that I had announced it twice.
Mr. Ingersoll. If the Court please, I did not want to bring this up, because I knew you had, and so I thought I would slip you the book and let you off easy.
The Court. I do not think it weakens the position at all that the same announcement has been made twice instead of once.
Mr. Carpenter. We thought it made it stronger.
The Court. Still, the books were not produced.
Mr. Ingersoll. Now, if the Court please, I am not arguing--
The Court. [Interposing.] I will leave you to the jury.
Mr. Ingersoll. Your Honor knows that I have always shown great modesty about trying to do anything against any decision.