Second. The fraudulent order by Brady for increase of trips, July 16, 1880. The only objection to this route is that the expedition was made before service was put on. This was in the power of the Postmaster-General. It has been done many times, and is still being done by the Postoffice Department, and the fact that it was done in this case does not even tend to show that any fraud was committed or intended.
That is all there is in that case. The petitions were never acted upon. One was never filed, and the other is not described, or rather is misdescribed.
Route 48150. Overt Acts: A fraudulent order by Brady reducing service to three trips a week, and allowing a month's pay on service dispensed with July 26, 1880. This point, gentlemen, I have already argued.
Whenever the Post-Office Department dispenses with any service it is bound to give one month's extra pay any time after the contract has been made and any time after the bid has been accepted. It is bound to give the month's extra pay on the service dispensed with, and this question, as you heard me say a little while ago, has been decided by the Supreme Court in Garfield's case. This route was operated by Sanderson. He was the subcontractor, and, according to the subcontract filed and presented here in evidence, he received every cent of the pay. We could have had no interest in perpetrating any fraud upon that route. Why? Because another man, J. L. Sanderson, received every dollar, and we not one cent.
Another fraudulent order of increase, August 24, from Powderhorn to Barnum, seven miles. No fraud was shown, but the order in fact, was made for the benefit of Sanderson and not for the benefit of any of the defendants in this case. In other words, it was made for the benefit of the people, it was made because they wished to reach another post-office.
Another charge is that the subcontract made by Sanderson was filed September 18, 1878. Recollect the charge is about filing this subcontract. The fact is it was filed in 1878 to take effect from July 1, 1878. See record, page 1406. On this very route the subcontract took effect the 1st of July, 1878, with Sanderson, and from that moment until now he has received every dollar. This route, as a matter of fact, is out of the scheme. Sanderson carried the mail from the 1st of July, 1878, until the end of that contract, the last day of June, 1882. So much for that route. It is gone. Nobody can get it back, either, in this scheme.
Route 40113. Overt Acts: Filing of a false oath. When? June 3, 1879.
When was it filed? May 7, 1879. That oath is gone. Was it false? They did not attack it. They never impeached it. Good.
Second. False petitions filed. When? June 3, 1879. All the petitions were filed prior to May 10, 1879. They are gone. One was filed May 23, but none was filed as alleged on June 3. They are gone. A magnificently written instrument. A fatal variance as to every petition. And yet not a solitary petition was attacked. Every petition was genuine and honest.
Third. A fraudulent order by Brady for increase and expedition. This order was asked for by the petitions. No fraud was established. See record, page 1503 on this route; also page 2159.
Fourth. They also charge that Brady made a fraudulent order on the 4th of January, 1881. But the Government never proved that order, never offered any order of that date. That is the end of that order.
Fifth. A fraudulent order of February 11, 1881. This was not offered by the Government, and no evidence was offered as to the existence of the order, neither the jacket, nor the order, nor the petitions, so far as I can find. That is the end of that. Every overt act so far, except some of the orders, wrong. The overt acts charged were filing fraudulent petitions. When? May 23, 1879. These are the petitions said to have been gotten up by Wilcox. Mr. Wilcox was a Government witness and he swore that every petition was honest, that every name was genuine, and that in order to get the names he did not circulate a falsehood, he circulated only the truth. To use his own language, "I did only straightforward, honest work." That is all there is on that.
44140 is the number of this route, and this evidence is on record, page 1568, and in regard to getting up these petitions you will recollect the language used by the Court. His Honor said in effect clearly, "Every man carrying the mail has the right to take care of his business. He has the right to get up petitions. He has the right to call the attention of the people to what he supposes to be their needs in that regard. He has the right to do it; and the fact that he does it is not the slightest evidence that he has conspired with any human being." Deny me the right to attend to my own affairs? If I have taken the route from the Government, and contract to carry the mail, tell me that I cannot suggest to my fellow-citizens that they ought to have a daily mail instead of a weekly? Tell me that I have not the right to talk it on the corners, in every postoffice for which I start, and that if I do I am liable to be pursued and convicted of an infamous offence? Every man has the right to attend to his own affairs, and he has the right to get all the people he can to help him. He has no right to go around lying about it, but he has the right to call their attention to the facts the same as you would have the right to get a road by your house; just exactly the same as you would have the right to get a school-house built in your district, no matter if you were to have the contract for making the brick. You have a right to say what you please in favor of education, no matter if you are an architect and expect to be employed to build the schoolhouse, and any other doctrine is infinitely absurd.
There is another charge: That a false oath was filed on the 24th of May.
The affidavit was made by Mr. Peck, and I believe it has been admitted that Mr. Peck never did anything wrong. Then there is alleged to be a fraudulent order for increase, signed June 26, and they never introduced the slightest evidence tending to show that there was fraud in the order. It was made in accordance with the petitions. It was made in accordance with what we believed to be the policy of the Post-Office Department. And allow me to say to your Honor that I think that the general policy of the Post-Office Department, as disclosed in the documents that have been presented in the reports made to Congress that have become a part of this case, I think even from that evidence I have the right to draw an inference as to what the policy of the department was.
The Court. I have no doubt in the world as to the views of the Post-Office Department in regard to that subject. The Court refused to receive evidence on that subject in defence, for the simple reason that the Court was of opinion that no Second Assistant Postmaster-General had the authority to establish any policy for this Government or for any branch of this Government. The policy of the Government is to be found in its laws, and the Court was unwilling to allow a Second Assistant Postmaster-General to set up his policy in his defence against a charge in this court. He had no right to have a policy.
Mr. Ingersoll. We never set up the policy of the Second Assistant. We never asked to be allowed to prove the policy of the Second Assistant.
We never imagined it, nor dreamed of it, nor heard of it until this moment. What we wanted to show was the policy, not of the Second Assistant, but of the Postmaster-General. But I am not speaking now upon that branch.
The Court. The Postmaster-General by law is the head of the department of course. But several assistants were given him by law, and he had the authority to apportion out the business of the department amongst those several assistants. The particular business of the department pertaining to the increase of service and expedition of routes belonged under this apportionment to the Second Assistant Postmaster-General. His acts, therefore, are to be looked to.
Mr. Ingersoll. I do not claim, if the Court please, that his policy had anything to do with it. I simply claim that from the orders that have been introduced, not of the Second Assistant, from the books that have been introduced, showing the views of the Postmaster-General, not of the Second Assistant. I also admit that if the Postmaster-General had ordered by direct order the Second Assistant Postmaster-General to expedite every one of these routes, even then there could have been such a thing as a conspiracy to expedite them too greatly, and to receive money from every man for whom they were expedited. I understand that.
But in the absence of any proof that it is so, all I have ever insisted was that the general policy of the head of the department might be followed by any subordinate officer without laying himself open to the charge that he had been purchased. That is all.
Now, gentlemen, all these things had been asked. They had been earnestly solicited by hundreds of Congressmen, by Senators, by Judges, by Governors, by Cabinet officers and by hundreds and hundreds of citizens.
Now, let me recapitulate all the overt acts--and I have gone over them all now excepting one, and I will come to that presently. In the indictment there are twelve charges as to filing false petitions.
There are ten charges as to false oaths. There are seven charges as to fraudulently filing subcontracts; and the evidence is that the ten oaths are substantially true; that it is impossible to fraudulently file a subcontract; and as to the petitions, that every one is absolutely genuine and honest with the exception of three. They prove that the words "schedule, thirteen hours," were inserted; that is, they tried to prove that by Mr. Blois, who is an expert on handwriting, as has been demonstrated to you. One with thirteen hours inserted in it, and the very next paragraph in that same petition begs for faster time. I have not the slightest idea that that ever was inserted by anybody. I believe it was in there when it was signed. And why? There would have teen, there could have been, there can be, no earthly reason for inserting those words. You cannot imagine a reason for it.
Now, that is thirteen hours. Then there is another one they say had some names of persons living in Utah, and we say that that is not described properly; not only that, but that it was never acted upon, and in my judgment that whole thing is a mistake and not a crime, because there were plenty of petitions without that. There was no need of it. All the other petitions have either been proved, or have been admitted to be absolutely genuine.
Now, I have gone over every overt act except payments, and when it was said here in court, or when the objection was made to these being proved as overt acts, the Court will remember that again and again and again, the prosecution denied that they were offered as overt acts.
The Court. I never understood them as being offered as overt acts.
Mr. Ingersoll. At that time the Court made just the remark that your Honor has made now. He said: "But what are the payments?" Now, I will take up the payments, and we will see whether there are any overt acts in the payments, gentlemen.
Now, let me call your attention to that magnificent rule that has been laid down by the Court. When you describe an offence you are held by the description. When it is said that I made a false claim against the Government in a conspiracy case, for instance, that I conspired to defraud the Government, that I presented a false claim, it may be that the laxity or lenity of pleading might go the extent of saying that the pleader need not state the amount of that false claim, but if the pleader does state the amount of that false claim he is bound by that statement. Now, that is my doctrine.
The Court. What I understood in regard to the evidence of the payments is this: The charge was a conspiracy to defraud and the averment was that the fraud had been completed, and this evidence of payments was to show that the fraud had been carried out.
Mr. Ingersoll. That is all. Now, let us see if this can be tortured into an overt act. I now come to the presentation of false claims charged to have been presented and collected by these defendants. It is a short business. On the route from Kearney to Kent the charge is that Peck and Vaile presented false claims on the third quarter of 1879 for five hundred and fifty dollars and seventy-two cents. The entire pay for that quarter, three trips and expedition, was seven hundred and ninety-five dollars and seventy-eight cents. And there is no charge that the increase of trips was fraudulent. Only the expedition was attacked. The three trips, according to the old schedule price, came to seven hundred and thirty-five dollars and eighty-one cents, all of which was honestly carried, honestly earned. Now, deducting from the pay seven hundred and ninety-five dollars and seventy-eight cents, the amount of the three trips on the old schedule honestly performed, seven hundred and thirty-five dollars and eighteen cents, if the expedition was fraudulent, we have a fraudulent claim of sixty dollars and sixteen cents. And yet the Government charges that we made a claim of five hundred and fifty dollars and seventy-two cents. Not one cent is allowed for carrying the two additional trips without expedition.
There is another trouble about this. It is charged that Peck and Vaile presented this claim for their benefit. The record, page 386, shows that Peck did not present this claim; that it was presented by H. M. Vaile; that H. M. Vaile received the warrant for the full amount; that he held a subcontract at that time for every dollar. This is another fatal variance, and the evidence of Vaile is that every dollar belonged to him; that not a dollar of that money was ever paid to any other one of the defendants; that he paid all the expenses; that he paid the debts, and that there never went a solitary cent to any Government official. So much for that payment.
The next charge is that on route 41119, from Toquerville to Adairville, Peck presented a false claim for the third quarter of 1879 for two thousand four hundred and sixty dollars and fourteen cents. The pay for that quarter was three thousand six hundred and twenty-eight dollars and fourteen cents for seven trips and expedition. The pay for the three trips on the old schedule was eight hundred and seventy-six dollars, a difference of two thousand seven hundred and fifty-two dollars and fourteen cents. And yet the Government charges that the false claim presented was two thousand four hundred and sixty dollars and fourteen cents. If they give the figures they must give them correctly. If I am charged with presenting a claim against the Government for two thousand four hundred and sixty dollars, that is not substantiated by showing that I presented a claim for two thousand seven hundred dollars. If you give the figures you must stand by the figures, and you are bound by them. You cannot charge one thing and prove something else. This is a fatal variance.
In addition to this fact, we find the deductions for failures in that very quarter amounted to five hundred and forty dollars and forty-two cents, and this deducted from the other amount leaves two thousand, two hundred and eleven dollars and seventy-two cents. So that in both cases the variance is absolutely fatal. I am showing you these things, gentlemen, so that you may see that there is in this case no evidence to fit the charges in this indictment.
44140, Eugene City to Bridge Creek. It is charged that Peck and Dorsey presented a false account for the third quarter of 1879 for four thousand seven hundred and eighty-three dollars and ninety-nine cents.
The pay for three trips with expedition was four thousand, six hundred and eighty-nine dollars and twenty-two cents; the pay for one trip on the old schedule was six hundred and seventeen dollars, a difference of four thousand and seventy-two dollars and twenty-two cents. The Government says the difference was four thousand seven hundred and eighty-three dollars and ninety-nine cents, an absolutely fatal variance.
Now, as a matter of fact, there were deductions in that quarter of one thousand nine hundred and thirty-two dollars and eighty-three cents, and this is deducted from the entire pay, leaving only as a claim three thousand seven hundred and sixty-six dollars and thirty-nine cents.
And yet the Government charges that we presented a false claim for four thousand seven hundred and eighty-three dollars and forty-nine cents. It will not do. It is a fatal variance. But when we take into consideration that there is no claim that the increase of trips was fraudulent, only the expedition, and that by the old schedule one trip came to six hundred and seventeen dollars, that three trips came to one thousand eight hundred and fifty-one dollars, and that added to deductions would make three thousand seven hundred and seventy-three dollars and eighty-three cents, to be deducted from four thousand six hundred and eighty-nine dollars and twenty-two cents, it would leave as a fraudulent claim, even if their claim was true, nine hundred and fifteen dollars and thirty-nine cents.
Now, the next is 44155, The Dalles to Baker City. The false claim was eight thousand eight hundred and ninety-six dollars, by Peck. The pay per quarter was sixteen thousand six hundred and sixty-six dollars and nine cents. The pay for three trips and expedition was seven thousand seven hundred and seventy dollars--a difference of eight thousand eight hundred and ninety-six dollars and nine cents. But there were deductions, ninety-nine dollars and thirty-four cents, leaving eight thousand seven hundred and ninety-six dollars and seventy-five cents.
But by making this claim the Government concedes that the expedition was legal, and another trouble is that the payment on this route was made to Vaile, not to Peck or Miner. It was made to Vaile, who was the subcontractor for the full amount, and this is another fatal variance.
Now, route 46132, Julian to Colton. The charge is that Peck and Vaile presented a fraudulent claim for the third quarter of 1879, for one thousand six hundred and fifty seven dollars and seventy-one cents.
The pay for three trips and expedition is one thousand nine hundred and fifty-four dollars and seventy-one cents. For three trips on the old schedule it was eight hundred and ninety-one dollars, a difference of one thousand and sixty-three dollars and seventy-three cents. A fatal variance. Besides it was not Peck and Vaile. Vaile was the subcontractor at full rates on this route. He presented the claim. He received the entire pay. Another variance. Route 44160, Canyon City to Camp McDermitt. The charge is that Peck and Vaile presented a false account for the fourth quarter of 1879, for eleven thousand eight hundred and nineteen dollars and sixty-six cents. It is charged in the indictment that this was paid in pursuance of the order set out in the indictment, and we find on page sixty-four that the order was dated July 16, 1880.
That was the order. No such payment was made in pursuance of that order for the reason that an order was made nearly a year afterwards, and the order of July 16, 1880, as set out in the indictment, was not retrospective, a fatal mistake in their indictment. As a matter of fact, the pay for the fourth quarter of 1879 was five thousand three hundred and seventy-five dollars. There were deductions to the amount of three hundred and fifty-two dollars and seventy-two cents and the balance was five thousand and twenty-two dollars and twenty-eight cents, instead of eleven thousand eight hundred and nineteen dollars and sixty-six cents.
And this was paid to Vaile, who was a subcontractor at full rates, and the variance in the case is absurd and fatal.
Route 46247, Redding to Alturas. The charge is that Peck and Dorsey filed a fraudulent account for the third quarter of 1879 for seven thousand four hundred and eighty-five dollars and six cents. This was in pursuance of the order set out in the indictment, and the only order set out in the indictment is dated February 11, 1881. That is another fatal variance.
The next route is 35051, Bismarck to Miles City. The charge is that Miner and Vaile presented a false account for the fourth quarter of 1879, for fourteen thousand one hundred. The pay for the quarter for six trips was seventeen thousand five hundred dollars. For three trips under the old order the pay was eight thousand seven hundred and fifty dollars, leaving eight thousand seven hundred and fifty dollars as the outside sum that could have been fraudulent, and yet the Government charges fourteen thousand one hundred dollars, an absolutely fatal variance. Besides that, there were deductions in that very quarter of four thousand five hundred and three dollars. This amount deducted from eight thousand seven hundred and fifty dollars leaves four thousand two hundred and fifty-six dollars and eleven cents as the greatest amount that could by any possibility have been fraudulent.
Three routes are lumped together next in the indictment, 38134, 38135, 38140, 38134, Pueblo to Rosita; 38135, Pueblo to Greenhorn; and 38,140, Trinidad to Madison.
The charge here is on page eighty-one of the indictment that Miner presented a fraudulent account for the fourth quarter of 1879 on routes amounting to two thousand seven hundred and seventy-six dollars and forty-seven cents.
The greatest possible difference that could be made on route 38135 is seven hundred and sixty-seven dollars and twenty cents. The greatest difference that could be made on route 38134 is one thousand nine hundred and forty dollars.
The greatest difference that could be made on route 38140 is six hundred and eighty-nine dollars and fifty-one cents. These three differences added together do not make what is charged in the indictment, three thousand seven hundred and seventy-six dollars and forty-seven cents, but as a matter of fact they amount to three thousand three hundred and ninety-six dollars and seventy-one cents. This cannot be the fraudulent claim described in the indictment.
But I find that on the first route there was a reduction of twelve dollars and sixty cents, on the second route of one hundred and fifty-four dollars and thirty-eight cents, and on the third of thirty-eight dollars and two cents, and these deductions added together make two hundred and five dollars and ninety cents, and deducted from the three thousand three hundred and ninety-six dollars and seventy-one cents leaves three thousand one hundred and ninety dollars and eighty-one cents. And yet the Government charges that the fraudulent claim was two thousand seven hundred and seventy-six dollars and forty-seven cents. It is impossible that the amount of the claim said to be fraudulent by the Government can be correct; but, as a matter of fact, according to the evidence, there was no fraud upon any claim in that route.
The next is route 38150, Saguache to Lake City. The charge is that Miner presented a false account for two thousand two hundred and two dollars and seventy-seven cents, and that he did this in pursuance of the order set out in the indictment, and the only order set out is dated August 24, 1880. That is an absolutely fatal variance. As a matter of fact, Sanderson was a subcontractor on this route from July 1, 1878, at full rates, and he carried the mail from July 1, 1878. The route was expedited on his oath and for his benefit. No point was made during the trial that the oath was not true. And the pay was calculated upon Sanderson's oath, and the money paid to him. The only claim is that there was an error in the order of four thousand five hundred and sixty-eight dollars per year, and it is admitted that the mistake was afterwards corrected and the money refunded. You remember it, gentlemen.
Mr. Turner, in making up the account showing how much the expedition would come to--and you understand the way in which they make up that expedition--made a mistake and added to the expedition and the then schedule the amount of the then schedule, four thousand and odd dollars.
He made the mistake and it was honestly made. No man would dishonestly do it because it was so easy of detection, and that was his only fault, gentlemen. The only crime he ever committed in this case was to make that mistake. That mistake was afterwards discovered, and the money was paid back by Mr. Sanderson; and, yet, that man has been indicted, has been taken from his home charged with a crime. He has been pursued as though he were a wild beast. He made one mistake. They could not prove the slightest thing against him. There was no evidence touching him.
There was only one way for them, and that was to dismiss him with an insult. You remember the case. Not one thing against that man--not one single thing. He stands as clear of any charge in this indictment as any one upon this jury. He is an honest man. It is admitted now there was no conspiracy on this route either. It is Sanderson's route, not ours. Not only that, but the Government says that it was not one of the routes with which Vaile had anything to do, or in which Vaile had any possible interest. The failure here is fatal to the indictment, and I shall endeavor to show that it is fatal to the entire case.
The next route is 35105, Vermillion to Sioux Falls. It is charged that Vaile and Dorsey presented a false account for the third quarter of 1879, for eight hundred and eighty-one dollars and fourteen cents.
The pay for six trips and expedition was one thousand and eighty-five dollars and fifty-eight cents. The pay for two trips on the old schedule was two hundred and four dollars and forty-four cents, showing a balance for once, as stated in the indictment--it being the only time--of eight hundred and eighty-one dollars and fourteen cents.
Parties are entitled to pay for the extra trips, and the number of men and horses has nothing to do with the value of an extra trip.
You understand that. If I agree to carry the mail once a week for five thousand dollars a quarter, and you wanted me to carry it twice a week, then I get ten thousand dollars a quarter, no matter if I do it with the same horses and the same men. That is not the Government's business.