Part 11

"We are of the opinion that the circuit court erred in refusing to instruct the jury, at the instance of the defendants, to find for all of them, except the defendant Metcalfe. He is the only one of the defendants proven to have touched the defendant Ann, and against the other defendants there is no evidence conducing in the slightest degree to prove them guilty of committing any assault or battery upon her, or of any intention to do so.

"It is true that it was proved that the other defendants confessed that they were at the house of Connor when the assault and battery charged is alleged to have been committed, and it was also proved that Metcalfe confessed that he and the other defendants had gone there for the purpose of taking from Connor by force an idiot boy whom he had in his custody. But the circumstances of the other defendants being at Connor's house, there is no evidence they were there for any unlawful purpose; nor can it of itself be sufficient to render them responsible for any act done by Metcalfe in which they did not participate; and the confessions of Metcalfe are certainly not legitimate evidence against the others to prove the unlawful purpose with which they went to Connor's, and thereby to charge them with the consequences of his act."

Now, to all appearances, they went there together; to all appearances, they went there for the one purpose, and Metcalfe, the man who really did the mischief, confessed that they all went there for the one purpose, but the court held that that was not sufficient.

"Where several agree or conspire to commit a trespass, or for any other unlawful purpose, they will, no doubt, all be liable for the act of any one of them done in execution of the unlawful purpose; and when the agreement or conspiracy is first proved by other evidence, the confession of one of them will be admissible evidence against the others. But it is well settled that the confessions of one person cannot be admitted against the others to prove that they had conspired with him for an unlawful purpose."

Now, the next evidence that I wish to allude to, gentlemen, is the evidence of Mr. Walsh, and I will only say a few words, because it has been examined and it has been ground to powder. Everything in this world is true in proportion that it agrees with human experience; and you can safely say that everything is false or the probability is that it is false in proportion that it is not in accordance with human experience. Other things being equal, we act substantially alike.

Now, when anything really happens everything else that ever happened will fit it. You take a spar crystal, I do not care how far north you get it, and another spar crystal, no matter how far south you get it, and put them together and they will exactly fit each other--exactly. The slope is precisely the same. And it is so with facts. Every fact in this world will fit every other fact--just exactly. Not a hair's difference. But a lie will not fit anything but another lie made for the purpose--never. It never did. And finally, there has to come a place where this lie, or the lie made for the sake of it, has to join some truth, and there is a bad joint always. And that is the only way to examine testimony. Is it natural? Does it accord with what we know? Does it accord with our experience?

Now, take the testimony of Mr. Walsh, and I find some improbabilities in it. Just let me read you a few:

1. Bankers and brokers do not, as a rule, loan money without taking at least a note. That is my experience. And the poorer this broker is, the less money he has, the more security he wants. He not only wants an indorser but he would like to have a mortgage on your life, liberty, and pursuit of happiness. That is the first improbability.

2. Bankers and brokers do not, as a rule, take notes that bear no interest, or in which the interest is not stated. People who live on interest find it always to their interest to have the interest mentioned--always. I never got a cent of a banker that I did not pay interest, and generally in advance.

3. Bankers and brokers do not, as a rule, take notes payable on demand, because such notes are not negotiable.

4. It is hardly probable that when a banker and broker holds the note of another for twelve thousand dollars--the note being unpaid--he would loan thirteen thousand five hundred dollars more, taking another note on demand in which the rate of interest was not stated.

5. It is still more improbable that the same banker and broker, with a note for twelve thousand dollars and one for thirteen thousand five hundred dollars, being unpaid, would loan five thousand four hundred dollars more without taking any note or asking any security.

6. When such banker and broker called upon his debtor for a settlement, and exhibited the two notes, and thereupon his debtor took the two notes and put them in his pocket, it is highly improbable that the banker and broker would submit to such treatment.

7. It is improbable that such banker and broker would afterwards commence suit to recover the money, without mentioning to his attorney, in fact, that the notes had been taken away from him.

8. It is also improbable that the banker and broker would commence another suit for the same subject-matter and still keep the fact that the notes had been taken from him by violence, a secret from his attorney.

9. If Mr. Brady took the notes by force, it is improbable that he would immediately put himself in the power of the man he had robbed, by stating to him that he, Brady, was in the habit of taking bribes.

10. It is impossible that Mr. Brady could, in fact, have done this, which amounted to saying this: "I have taken twenty-five thousand five hundred dollars from you; of course, you are my enemy; of course, you will endeavor to be revenged, and I now point out the way in which you can have your revenge. I am Second Assistant Postmaster-General; I award contracts, increases, and expedition, and upon these I receive twenty per cent, as a bribe. I am a bribe-taker; I am a thief; make the most of it. I give you these tacts in order that I may put a weapon in your hands with which you can obtain your revenge."

There are also other improbabilities connected with this testimony.

If Mr. Brady was receiving twenty per cent, of all increases and expeditions, amounting to hundreds of thousands of dollars per annum, it is not easy to see why he would be borrowing money from Mr. Walsh.

Now, if that story is true, boil it down and it is this, because if he got this twenty per cent, from everybody he had oceans of money--boil it all down and it is this: A rich man borrows without necessity and a poor banker loans without security. These twin improbabilities would breed suspicion in credulity itself. No man ever believed that story, no man ever will. There is something wrong about it somewhere, unnatural, improbable, and it is for you to say, gentlemen, whether it is true or not, not for me. What is the effect of that testimony? So far as my clients are concerned it is admitted, I believe, by the prosecution--it was so stated, I believe, by his Honor from the bench--that it could not by any possibility affect any defendant except Mr. Brady, and the question now is, can it even affect him? I call the attention of the Court to 40th N. Y., page 228. I give the page from which I read:

"To make such admissions or declarations competent evidence, it must stand as a fact in the cause, admitted or proved, that the assignor or assignees were in a conspiracy to defraud the creditors. If that fact exist, then the acts and declarations of either, made in execution of the common purpose, and in aid of its fulfillment, are competent against either of them. The principle of its admissibility assumes that fact."

That the conspiracy has been established.

"In case of conspiracy, where the combination is proved, the acts and declarations of the conspirators are not received as evidence of that fact, but to show what was done, the means employed, the particular design in respect to the parties to be affected or wronged, and generally those details which, assuming the combination and the illegal purpose, unfold its extent, scope, and influence either upon the public or the individuals who suffer from the wrong, or show the execution of the illegal design. But when the issue is simply and only, was there a conspiracy to defraud, these declarations do not become evidence to establish it."

"So far then, as the admission of the evidence in this case, of declarations, subsequent to the assignment, is sought to be sustained as evidence of the common fraud, on the ground of conspiracy, the argument wholly fails. A conspiracy cannot be proved against three by evidence that one admitted it, nor against assignees by proof that the assignor admitted it; it is a fact that must be proved by evidence, the competency of which does not depend upon an assumption that it exists."

So to the same point is the case of Cowles against Coe, 21st Connecticut, 220. I will read that portion of the syllabus that conveys the idea:

"To prove the alleged conspiracy between the defendant and G., the plaintiff offered the deposition of R., stating declarations made by G. to R., while G. was engaged in purchasing goods of him, on credit, and relative to G.'s responsibility and means of obtaining money through the defendant's aid; these declarations were objected to, not on the ground that the conspiracy had not been sufficiently proved, but because the defendant was not present when they were made; it was held that they were admissible, within the rule regarding declarations made by a conspirator in furtherance of the common object."

Now, let us see what the court says about it:

"The remaining question is, whether the declarations of Gale to Edmund Curtiss and William Ives were properly received. These declarations were not offered as in any way tending to prove the combination claimed. The motion shows that they were offered and received after the plaintiff's evidence on that subject had been introduced. Had they been admitted for that purpose, or if, under the circumstances, they could have had any influence with the jury on that point, we should feel bound to advise a new trial on this account."

All that I have said in respect to Walsh applies to what is known or what is called the confession of Rerdell. It was admitted by the prosecution that not one word said by him could bind any other defendant in the case. But, gentlemen, is there enough even to bind him? Did he confess that he was guilty of the conspiracy set forth in this indictment? And I want to make one other point. In this case there must be not only a conspiracy, but an overt act, and no man can confess himself into it without confessing that he was a conspirator, and that he knew that an overt act was to be done; because it takes that conspiracy and the overt act to 'make the offence. What overt act did Rerdell confess that he was guilty of--what overt act charged in this indictment? One. Filing a subcontract; and by no earthly method, by no earthly reasoning can you come to the conclusion that that could carry it into conspiracy. He must have confessed that he was guilty according to the scheme, according to the indictment set forth, and in no other way. That indictment says that the money was to be divided, that it was for the mutual benefit of certain persons. Unless that has been substantiated this case falls. According to the case of the King against Pomall the scheme of the indictment must be established, otherwise the case goes. In that case they charged it was one way, and they proved it was that way, and one of the defendants did not understand it that way and he was acquitted. Now, suppose they had not proved the scheme as they charged it, then all would have been acquitted, and unless the jury believe beyond a reasonable doubt, from the evidence that the scheme set forth in the indictment here was the scheme, then they must find everybody not guilty. There is no other way.

What is the next argument? The next argument is extravagance. What is extravagance? If I pay more for a thing than it is worth that is extravagance. If I buy a thing that I do not want, that is extravagance, and if I do this knowing it to be wrong, if I do this understanding that I am to have a part of the price, that is bribery, that is corruption, that is rascality. Nobody disputes that. How do you know that a thing is extravagant unless you know the price of it? For instance, an army officer is charged with extravagance in buying corn upon the plains at five dollars a bushel. How do you prove it is extravagance? You must prove that he could have obtained it for less or that there was a cheaper substitute that he should have obtained. How are you going to prove that too much was paid for carrying the mail upon these routes? Only by showing that it could have been carried for less. What witness was before this jury fixing the price? How are we to establish the fact that it was extravagance? We must show that it could have been obtained for less money. What witness came here and swore that he would carry it for less? And would it be fair to have the entire case decided upon one route when it is in evidence that my clients had thirty per cent, of one hundred and twenty-six routes? Would it be fair to decide the question whether they had made or lost money on one route? Your experience tells you that upon one route they might make a large sum of money and upon several other routes lose largely. A man who has bid for one hundred routes takes into view the average and says "upon some I shall lose and upon others I shall make." How are you to find that this was extravagance unless you know what it could have been done for? They may say that they subcontracted some of the routes for much less. Yes; but what did they do with the rest of them? I might take a contract to build a dozen houses in this city, and on the first house make ten thousand dollars clear, and on the balance I might lose twenty-five thousand dollars. You have a right to take these things and to average them. When a man takes a contract he takes into consideration the chances that he must run in that new and wild country. It takes work to carry this mail. You ought to be there sometimes in the winter when the wind comes down with an unbroken sweep of three or four thousand miles, and then tell me what you think it is worth to carry the mail. All these things must be taken into consideration. Another thing: You must remember that every one of these routes was established by Congress. Congress first said, "Here shall be a route; here the mail shall be carried." It was the business then, I believe, of the First Assistant Postmaster-General to name the offices, and the Second Assistant to put on the service. Take that into consideration. Every one of these routes was established by Congress. Take another thing into consideration: That the increase of service and expedition was asked for, petitioned for, begged for, and urged by the members of both houses of Congress, and according to that book, which I believe is in evidence, a majority of both houses of Congress asked, recommended, and urged increase of service and expedition upon some of the nineteen routes in this indictment.

The Court. What evidence do you refer to?

Mr. Ingersoll. I refer to the Star Route investigation in Congress.

The Court. That record is not in evidence.

Mr. Ingersoll. I thought that was in evidence.

The Court. No, sir.

Mr. Ingersoll. It was used as if it was in evidence. I saw people reading from it, and supposed it was in evidence.

The Court. It is not in evidence.

Mr. Ingersoll. Well, we will leave that out. Now, upon these nineteen routes--this is in evidence--increase and expedition of service were recommended by such Senators as Booth, Farley, Slater, Grover, Chaffee, Chilcott, Saunders, and by the present Secretary of the Interior, Henry M. Teller, and by such members of Congress as Whiteaker, Page, Luttrell, Pacheco, Berry, Belford, Bingham, chairman of the postoffice committee, by Stevens of Arizona, a delegate, and by Maginnis of Montana, and Kidder of Dakota, by Generals Sherman, Terry, Miles, Hatch and Wilcox In addition to these, recommendations were made and read by judges of courts, by district attorneys, by governors of Territories, by governors of States, and by members of State Legislatures, by colonels, by majors, by captains, and by hundreds and hundreds of good, reputable, honest citizens. They were the ones to decide as a matter of fact whether this increase was or was not necessary.

I believe in carrying the mails. I believe in the diffusion of intelligence. I believe the men in Colorado or Wyoming, or any other Territory, that are engaged in digging gold or silver from the earth, or any other pursuits, have just as much right, in the language of Henry M. Teller, to their mail as any gentleman has to his in the city of New York. We are a nation that believes in intelligence.

We believe in daily mail. That is about the only blessing we get from the General Government, excepting the privilege of paying taxes. Free mail, substantially free, is a blessing.

Now, there is another argument which has been used: Productiveness; but that has been so perfectly answered that I allude to it only for one purpose. How would the attorneys for the Government in this case like to have their fees settled upon that basis? Productiveness. Is it possible that this Government cannot afford to carry the mail? Is it possible that the pioneer can get beyond the Government? Is is possible that we are not willing to carry letters and papers to the men that make new Territories and new States and put new stars upon our flag? I have heard all I wish on the subject of productiveness.

Now, gentlemen, that is all the evidence there is in this case, that I have heard. What kind of evidence must we have in a conspiracy case? You have been told during this trial that it is very hard to get evidence in a conspiracy case, and therefore you must be economical enough to put up with a little. They tell you that this is a very peculiar offence, and people are very secret about it. Well, they are secret about most offences. Very few people steal in public. Very few commit offences who expect to be discovered. I know of no difference between this offence and any other. You have got to prove it. No matter how hard it is to prove you must prove it. It is harder to convict a man without testimony, or should be, than to produce testimony to prove it if he is guilty. All these crimes, of course, are committed in secret. That is always the way. But you must prove them. There is no pretence here that there is any direct evidence, any evidence of a meeting, any evidence of agreement, any evidence of an understanding. It is all circumstantial. I lay down these two propositions:

"The hypothesis of guilt must flow naturally from the facts proved, and be consistent, not with some of the facts, not with a majority of the facts, but with every fact."

Let me read that again:

"_The hypothesis of guilt must flow naturally from the facts proved, and must be consistent with them; not some of them, not the majority of them, but all of them_."

The second proposition is:

"The evidence must be such as to exclude every single reasonable hypothesis except that of the guilt of the defendant. In other words, all the facts proved must be consistent with and point to the guilt of the defendants not only, but every fact must be inconsistent with their innocence."

That is the law, and has been since man spoke Anglo-Saxon. Let me read you that last proposition again. I like to read it:

"The evidence must be such as to exclude every reasonable hypothesis except that of the guilt of the defendants. In other words, all the facts proved must be consistent with and point to the guilt of the defendants not only, but they must be inconsistent, and every fact must be inconsistent with their innocence."

Now, just apply that law to the case of John W. Dorsey. Apply that law to the case of Stephen W. Dorsey. Let me read further. I read now from 1 Bishop's Criminal Procedure, paragraph 1077.

"It matters not how clearly the circumstances point to guilt, still, if they are reasonably explainable on a theory which excludes guilt, they cannot satisfy the jury beyond reasonable doubt that the defendants are guilty, and hence they will be insufficient."

Just apply that to the case of Stephen W. Dorsey and John W. Dorsey. I would be willing that this jury should render a verdict with that changed. Change it. You are to find guilty if you have the slightest doubt of innocence. Even under that rule you could not find a verdict of guilty against John W. or Stephen W. Dorsey. If the rule were that you are to find guilty if you have a doubt as to innocence you could not do it; how much less when the rule is that you must have no doubt as to their guilt. The proposition is preposterous and I will not insult your intelligence by arguing it any further.