Part 10

Nothing criminal about any contract, gentlemen. You will all admit they had to make the bids, and if they were the lowest bidders it was the duty of the Government to accept the bids and afterwards to make the contracts in accordance with them. There was nothing wrong in that. That is Dorsey's first step. His first step really was an act of kindness. What was the second step? He was unable to advance any more money. Mr. Peck, Mr. Miner, Mr. Dorsey, and Mr. Boone were unable to advance the money, so Mr. Boone went out and Mr. Vaile came in, and the new partnership agreed to refund this money that had been advanced; that is, the money advanced by the other parties. What one gets another to advance is really advanced by him as long as he is liable for it. Mr. Vaile, a man of large experience and means, was taken in Boone's place. Is there anything suspicious up to this time? That is the only test of this whole question. Is it natural? If it is natural there is no chance for suspicion. After Mr. Vaile came in, a written contract was made on August 16, 1878. There is no conspiracy up to that time. Not the slightest evidence of it; no arrangement with any officers up to that time. Now, under the August contract, Mr. Vaile took the entire business in charge, and he ran it, as I understand, until the first day of April, 1879. No officer had any interest in it then. There was no conspiracy then. Vaile received all the money and paid it out. Here we stand on the first day of April, 1879. Now, what is the history up to this time? That John W. Dorsey, Peck, Miner, and Boone were bidders; that certain routes had been awarded, they had not the money to stock the routes, and that S. W. Dorsey advanced some money and went security; that afterwards Boone went out and Vaile came in, and the contract was made by virtue of which Vaile became the treasurer and knew everybody, and ran the business to the first day of April, 1879. He swears positively that he made no arrangement and that he paid no money. It is also in evidence that in December, 1878, Stephen W. Dorsey and Vaile met for the first time, and met in the German-American Bank for the purpose of settling the claim upon which Dorsey was security, and replacing the notes upon which Dorsey was, by notes of Vaile, Miner & Co. Afterwards these notes were paid by Vaile and the security of Dorsey released. Now, in April, 1879, a division is made. The contract of August, 1878, was done away with and a division 'of the routes was made, seventy per cent, being taken by Vaile and Miner and thirty per cent, by John W. Dorsey and Peck. In April, 1879, the parties divided instead of coming together. They do not conspire. They separate. They do not unite. They go asunder. From that moment they agree to have nothing in common. Each man takes his own, and each man attends to his own and does not help anybody else except when they insist that a contractor or subcontractor shall make the affidavit. They made affidavits on the routes on which they were contractors. That is all there is to it up to that time. Then these routes were assigned to Dorsey for the purpose of securing him.

Now, I go to the overt acts charged against Stephen W. Dorsey. Do you know I am delighted to get right to that page of my notes. I am delighted that I now have the opportunity to answer and to answer forever all the infamous things that have been charged against this man. Here we are, before this jury, a jury of his fellow-citizens, a jury that has the courage to do right. I have finally the chance of telling here before men who know whether I am speaking the truth or not, what has been charged against Stephen W. Dorsey and what has been proved against him. Let us examine the overt acts charged. On route 38135 it is charged that Miner, Rerdell and S. W. Dorsey transmitted a false affidavit. The evidence is that the affidavit was made by Miner, not by Dorsey, transmitted by Miner, not by Dorsey, and that it was not transmitted as charged in the indictment, but transmitted on the 18th day of April, 1879. There is no evidence that Dorsey even heard of that affidavit, that he ever made it, that he ever transmitted it, that he ever saw it, that he ever knew of its existence. That is the first charge. There is not one particle of evidence to show that he ever knew there was such a paper. Upon that written lie, upon that mistake these infamous charges affecting the character of this man have been circulated over the United States.

What is the next? That he with others filed false petitions. I am telling you now all the charges; every one of them. What is the evidence? Oh, it is splendid to get to the facts. The evidence is that every petition is shown to have been genuine. There is no evidence that he ever filed one or sent one, or asked to have one sent on that route; and every petition is genuine and no charge made except as to one. In one they said the words "quicker time" were inserted; but the very next paragraph asked for quicker time, and nobody pretended that had been inserted. Besides that, it was charged in the indictment to have been filed on the 26th day of June. As a matter of fact, it was filed on the 8th day of May. It was never filed by Stephen W. Dorsey; it was never gotten up by Stephen W. Dorsey. There is no evidence that he ever knew of it or heard of it. Third, that he fraudulently filed a subcontract. Two mistakes and an impossible offence. That ends that route. That is everything on earth in it. I defy any man to make anything more out of it than I have. I have told every word.

The next route is No. 41119. It is charged that Stephen W. Dorsey with others transmitted a false oath. The evidence is that the oath was made by Peck, and it was transmitted by Peck and not by Stephen W. Dorsey. What else? That it is true. There are three mistakes in that charge. They say Dorsey made it. Peck made it They say Dorsey transmitted it. Peck transmitted it. They say it was false. The evidence shows it true. Thai is all there is to that route. It is the only charge on that route. No petitions were claimed to be false.

Now we come to route 38145. Let us see if we can do any better on that. The first charge is, that Stephen W. Dorsey fraudulently filed a subcontract. The subcontract was made with Sanderson, Sanderson got his own contract filed. This charge was copied from the old indictment. It is a mistake and that is all there is to it. These are the charges that have carried sorrow to many hearts. These are the charges that have darkened homes. These are the charges that have filled nights with grief and horror; every one of them a lie.

The next route is 38156. The first charge is that he transmitted a false oath. The oath was made by John W. Dorsey, and is true. The second charge is of fraudulently filing a subcontract, an impossible offence. That is everything on that route. Absolutely untrue.

Now we come to the next, No. 46217. The charge is filing base petitions. The evidence is that every petition was genuine. Every one. Mr. Bliss said--"We make no point about increase of trips on this route."

Every petition was for increase of trips. You will see that on record, page 1008. That is the only charge on that route, gentlemen. Utterly false!

Come now to route 38140. Charge: Filing false and forged petitions. Evidence: All the petitions genuine. Second charge: Transmitting a false oath and making it. Evidence: Oath made by John W. Dorsey, and true. That is all there is to that route. If they can rake up any more I want to see it. I have been through this record.

Route 38113. Charge: Fraudulently filing a subcontract. That is all. You cannot fraudulently file a subcontract.

Route 40113. Charge: Filing false and forged petitions. Evidence: Every petition admitted by the Government to be genuine. Good. Second: transmitting a false oath. Evidence: Oath made by John W. Dorsey, and the Government introduced no witness to show that it was false. See how these charges fall. See how they bite the ground. That is all.

I have told you every one in this indictment; every one. You will hardly believe it. Now let me give you the recapitulation. S. W. Dorsey is charged on eight routes with having transmitted four false oaths.

The evidence is he never made one nor transmitted one, and that the four oaths were all true. On five routes he is charged with having filed false petitions. The evidence is that all the petitions were genuine. None of the petitions charged in the indictment to have been transmitted by him were transmitted by him. He is charged with filing fraudulent subcontracts, and the evidence is that the subcontracts were genuine, and besides that, as I have said a dozen times, it is utterly impossible to fraudulently file a subcontract. Not a single, solitary charge in this indictment against Stephen W. Dorsey has been substantiated. Not one. He has been called a robber, he has been called a thief, but the evidence shows he is an honest man. Not one single thing alleged in that indictment has been substantiated against him, and I defy any human being to point to the evidence that does it. Now think of it. All this charge has been made against that man upon that evidence; no other evidence; not another line so far as the indictment is concerned. What is outside of the indictment? That he wrote two letters, taking possession of routes that had been turned over to him as security, which he had a right to do. What else? That he got up some petitions, or had them gotten up, in the State of Oregon. The man who got them up was brought here as a witness. I believe his name was Wilcox. He swore that everything he did was honest, and that every name to every petition was genuine. Now let us see. Another point has been made upon S. W. Dorsey. I want to read it to you. This is from the argument of Mr. Merrick:

"Peck, John W. Dorsey and Miner, or some other one of Stephen W. Dorsey's friends. Who was making up this conspiracy? Who was gathering around him arms and hands to reach into the public Treasury for his benefit, while his own were apparently unoccupied with pelf? S. W. Dorsey. 'My brother and brother-in-law will go in, and Miner, or if not Miner, then one of my other friends.'"

This is quoted.

"One-of S. W. Dorsey's other facile friends. That was in 1877, gentlemen, the morning of this day of fraud and criminality. In that room where Boone and S. W. Dorsey sat arose the sun, and there was marked his course. There was fashioned the duration and the business of that criminal day."

Now, let us see what the evidence is. The object of that speech is to convince you that Dorsey said to Boone. "I will either put in Miner or one of my friends." Do you know that there is not money enough in the Treasury of the United States, there is not gold and silver enough in the veins of this earth to tempt me to misstate evidence when a man is on trial for his liberty or his life. Let us see what the evidence is:

"Q. Who else besides his brother-in-law and brother?--A. I could not say positively whether Mr. Miner's name was mentioned. He either mentioned his name or a friend of his from Sandusky, Ohio."

Now, I submit to you, gentlemen, what does that mean? Mr. Boone, in effect, says, "He told me either it was Miner or a friend of his from Sandusky. That is, he either described Miner by his name or he described him as a friend of his from Sandusky." Then there was objection made, and after that comes another question:

"Q. Was anything said of Mr. Miner's coming to Washington?--A. I could not say whether his name was mentioned or a friend of his; a personal friend."

What does that mean? Boone cannot remember Whether he called him Miner or called him a friend of his from Sandusky. What else?

"A. There was to be nobody that I understood outside of the parties I spoke of.

"Q. You and John W. Dorsey and Peck?--A. And Mr. Miner."

"Q. Or one of his friends?--A. Or Mr. Dorsey's friend. The arrangement made was not made until they came here. It was only to prepare the necessary blanks and papers pending their coming because the time was getting short, and it was necessary to get the information to bid upon. Nothing was said about any interest at all until after they came here, and then there was a partnership entered into."

Now, I ask you, gentlemen of the jury, what is the meaning of that testimony. The meaning is simply this: Boone could not remember whether he mentioned Miner's name or called him a friend of his from Sandusky, yet the object has been to make you believe that the testimony was that S. W. Dorsey said, "I will either have Miner or I will get another friend of mine." Dorsey had no interest in it, not the interest of one cent, not the interest of one dollar, directly, indirectly, or any other way. He had no interest in having a friend of his. All that Mr. Boone said is that Mr. Dorsey either called this man Miner or described him as a friend from Sandusky, Ohio. The evidence is that Mr. Miner did come, and the evidence is that the arrangement was made. What else is there outside in this case against Stephen W. Dorsey? I ask you to put your hand upon it. I ask anybody to point it out. What other suspicious circumstance is there? I want you to understand that all the suspicious circumstances in the world are good for nothing. All the evidence on earth tending to show a thing does not show it. Anything that only tends that way never gets there; never.

You cannot infer a conspiracy. Unless you have the facts proved, you cannot infer the fact and then infer the conspiracy. There has not been--I want to say it again--there has not been a solitary fraudulent act proven against Stephen W. Dorsey. They have not done it and they cannot do it. All I ask of you, gentlemen, is to find a verdict in accordance with this testimony.

May it please the Court, it appears from the evidence in this case, I think the evidence of Mr. James, that Stephen W. Dorsey at one time, about sixteen or seventeen months ago, made a statement in writing of his connection with all these routes. That statement he gave to the Attorney-General and the Postmaster-General. There is no evidence of what was in that statement. The only evidence is that such a statement was made, embracing his connection with these routes.

The Court. You offered to prove that.

Mr. Ingersoll. Oh, no. The reason it was established was I wanted to show whether that statement was made before or after Mr. Rerdell made a statement. The fact simply appears that he made a statement.

The Court. You offered to prove the fact.

Mr. Ingersoll. I do not remember offering to prove it. I proved it.

The Court. If it was not proven--Mr. Ingersoll. [Interposing.] I did prove it as a fact.

The Court. That he made a statement.

Mr. Ingersoll. Yes, sir. Right here it is [taking up the record].

The Court. Oh, well, you cannot base any remarks upon that.

Mr. Ingersoll. Let me read what the evidence says:

"Q. Was this statement of Rerdell's made to you after you had received the statements of S. W. Dorsey as to his connection with all these entire routes or with this entire business?

"The Witness. To what statement do you refer?

"Mr. Ingersoll. To the statement that was made in writing and given to you and the attorney-general by ex-Senator S. W. Dorsey?

"A. It must have been after that.

"Q. You mean Rerdell's statement was after that?--A. Yes, sir.

"Q. Did you ever see that statement made by Senator Dorsey?--A. It was referred to the attorney-general.

"Q. Did you ever see it?--A. Certainly.

"Q. Do you know where it now is?--A. I do not."

I am not going to say a word about what was in that statement, but the Court will see that that has a direct bearing upon their action with regard to Rerdell's statement whether it was made before or after, which I will endeavor to show, and the only point that I wanted to make upon that statement now, was that the Government has not endeavored to prove that anything in that statement was inconsistent with the evidence in this case. I am not going to say what the statement was; simply that he made a statement, and it follows as naturally as night follows morning, and morning follows night, that if that statement had been incorrect it would have been brought forward. That is all.

The Court. For anything the Court knows it might have been a confession. We do not know anything about it.

Mr. Ingersoll. If it had been a confession it would have been here. That is the point I make. If there had been in that anything inconsistent with the testimony it would have been here.

The Court. Probably it would.

Mr. Ingersoll. Yes, sir; that is my point.

The Court. When a man is charged with crime no man has a right to say that because he did not deny it that is evidence of his guilt.

Mr. Ingersoll. No, sir; and no man has a right to say that because he did deny it is evidence of his innocence.

The Court. It is not evidence either way.

Mr. Ingersoll. It is not evidence either way, and if I am charged with a crime and I make a written statement to the Government of my entire connection with that thing, and they go on and examine it for one year and finally finish the trial without showing that that statement was incorrect, it is a moral demonstration that my statement agreed with the testimony.

The Court. On the principle, I suppose, of an account rendered and no objection made?

Mr. Ingersoll. Good. That is a good idea.

The Court. I do not see anything in that.

Mr. Ingersoll. I see a great deal in it, and it is a question whether the jury can see anything in it.

The Court. It is a question whether the Court too----

Mr. Ingersoll. [Interposing.] Very well.

The Court. [Continuing.] Whether the Court is going to allow an argument to be based upon a mere vacuum--wind, nothing.

Mr. Ingersoll. That would seem to be stealing the foundation of this case. [Laughter, and cries of "Silence" from the bailiffs.] We will consider the argument made to the Court, and not to the jury.

The next question, then, is what is the _corpus delicti_; that is, in a case of conspiracy? I do not believe the combination to be the corpus delicti--the mere association. It may be the corpus, but it is not the delicti, and under the law there must not only be a conspiracy, as I understand it, but also an overt act done by one of the conspirators to accomplish the object of the conspiracy. So that the conspiracy with the fraudulent purpose and the overt act constitute the corpus delicti. Now, I read from Best on Presumptions, page 279:

"The corpus delicti, the body of an offence, is the fact of its actually having been committed."

The dead body in a murder case is not the corpus delicti. It is the corpse and nothing more. It must be followed by evidence that murder was committed.

"The corpus delicti is the body, substance or foundation of the offence. It is the substantial and fundamental fact of its having been committed."

1 Haggard, 105, opinion by Lord Stowell.

I now refer you to Peoples vs. Powell, 63, N. Y., page 92. It seems that the defendants in this case were commissioners of charities of the county of Kings, and they were indicted for conspiring together to buy supplies contrary to law and without duly advertising. Their defence was that they were not aware that such a law existed; that they were ignorant of the law. The court below thought that made no difference. The court above said before they could be guilty of this crime there must be the intention to commit the crime, and this language is used:

"The agreement must have been entered into with an evil purpose, as distinguished from a purpose simply to do the act prohibited in ignorance of the prohibition. This is implied in the meaning of the word conspiracy. Mere concert is not conspiracy."

So combination is not conspiracy; partnership is not conspiracy; neither is it the corpus delicti of conspiracy. There must be the evil intent; there must be the wicked conspiracy not only, but there must be one at least overt act done in pursuance of it before the corpus delicti can be established.

"The actual criminal intention belongs to the definition of the offence and must be shown to justify a conviction for conspiracy. The offence originally consisted in a combination to convict an innocent person by perversion of the law. It has since been greatly extended, but I am of opinion that proof that the defendants agreed to do an act prohibited by statute, followed by overt acts in furtherance of the agreed purpose, did not conclusively establish that they were guilty of the crime of conspiracy."

It would be hard to find a stronger case, in my judgment, than that. Although they agreed to violate a statute--they agreed to buy supplies without complying with the statute by advertising--they claimed they were in ignorance of it, and the question was whether they were guilty of conspiracy, having no intent to do an illegal act, and the court of appeals decided that that verdict could not stand.

The Court. Because the court below had instructed the jury that whether what they did was done in ignorance or with knowledge it made no difference.

Mr. Ingersoll. Certainly; it made no difference. Everybody is supposed to know the law.

Now, the next point is, and great weight has been put upon it, gentlemen, that concurrence of action establishes conspiracy; that if one does a part and another another part and finally the culmination comes, that is absolute evidence, or in other words, an inference. Admitting, now, that they were perfectly honest, if any of these parties made a bid, that bid had to be accepted by the Government. They had to act together. The department and the man had to act together to have the bid accepted. The department and the man had to act together to make the contract. The department and the man had to act together to get the pay, and no matter how perfectly honest the transaction was they had to act together from the first step to the payment of the last dollar.

Now, in a business where they do have to act together, where one necessarily does one thing, and the other necessarily does another, the fact that that happens does not even tend to prove that there is any fraud. Upon this concurrence of action I refer to the case of Metcalfe against O'Connor and wife, in Little's Select Cases, 497. One of the men confessed that a large party went to the house where there was a disturbance and where they tried to take by force a boy from the custody of a man and woman. Now, the fact that these men did go the house, the fact that they were there at the time this happened, and the fact that one of the conspirators or one of the trespassers had confessed that he went there and that the other went with him for that purpose, the court decides that you cannot infer the purpose of these men from the statement of the other; neither can you infer it from the fact that they were there. You must find out for what purpose they were there by ascertaining what they did and when they were there, and that concurrence in actions shows nothing.

The Court. Did you not say that the decision there was that the conspiracy might be inferred from the combination to do the act?

Mr. Ingersoll. I will just read it and then there will be no guessing about it:

"This is a writ of error prosecuted by the defendants to a judgment for the plaintiffs in an action of trespass for an assault and battery alleged to have been committed upon the plaintiff Ann, the wife of the other plaintiff.