762 



STAK-KOUTE TRIAL. 



his discretion fairly in regard to the increase 

 of service and expedition whenever the public 

 interest required such increase to be made. 

 But here was an increase made at a heavy ex- 

 pense when the revenues had hegun to run 

 down. It could not be negligence. Negli- 

 gence itself was a crime, when the injury fell 

 upon the innocent and when the negligence 

 was gross. There was no evidence in the his- 

 tory of this route to show that this remarkable 

 result sprang from negligence. Manifestly it 

 was purposely done ; it was done with a mo- 

 tive. The question for the jury to consider, in 

 trying this case, was whether the action of 

 the second assistant postmaster-general was a 

 mistaken exercise of his discretion, or was 

 taken purposely, and with such a motive as 

 ought not to inspire any man. It had been 

 argued in this case, that if increase of service 

 and increase of expedition have been allowed 

 granted, rather in instances where there 

 have been fraudulent papers, fraudulent affi- 

 davits, untrue affidavits, still, if the public ser- 

 vice had been promoted, the acts of these parties, 

 if they be criminal, are not subject to punish- 

 ment, because they result in no injury to the 

 public. He thought there was no soundness 

 in such a view as that. That was doing evil 

 that good may come, and that was neither good 

 gospel nor good law. In regard to the proof 

 of the conspiracy, several prayers had been pre- 

 sented, containing the principle that the con- 

 spiracy must be proved independent of the 

 overt act; that the conspiracy could not be 

 established a posteriori. Now, that was not 

 so, and it had never been so. The proof of the 

 conspiracy may be made out from the conse- 

 quences that followed from the conspiracy. 

 On another important point the Court said : 



The doctrine is maintained in several of the prayers, 

 that if the jury believe that expedition was ordered 

 on false affidavits, and there were genuine papers on 

 file, they must attribute the order to the influence of 

 the genuine papers. Is the bad saved by its alliance 

 with the good ? That, gentlemen, is not to be toler- 

 ated. That doctrine can not be tolerated in any court. 

 There is nothing so odious in a court of justice as fraud. 

 It is not only vicious itself, but it contaminates every 

 thing that is associated with it. It is like a drop of 

 poison in a tumbler of pure water. The party who 

 commits a fraud very often finds it convenient to use 

 truth for a scheme of falsehood. Truth and falsehood 

 are always quarreling when left to themselves. The 

 truth is, that falsehoods are of so impish a nature that 

 they quarrel among themselves. But fraud is not 

 exactly identical with falsehood. Fraud is a double 

 cousin to falsehood, no doubt. But fraud, for its own 

 purposes, will make use of truth or falsehood indis- 

 criminately. Truth is impressed very often into the 

 service of fraud, and can not get away. I have seen 

 fraud of the most abominable character with a line of 

 truth in its front, and all its impish tribe behind. The 

 more of truth fraud can work into its service, the bet- 

 ter chance is there for its success. But it is no less 

 fraud after all. So that the fact that truth is some- 

 times found under the banners of fraud, is not to bo 

 suffered to justify the case of fraud. 



In conclusion, the judge made an earnest ap- 

 peal to the jury to disregard all improper ef- 

 forts to influence their action. 



The jury went out about noon on the 8th of 

 September, and the Court took a recess until 

 6 o'clock to await the verdict. At that hour 

 it was announced that they had not agreed 

 " except as to one of the defendants " ; and they 

 were directed to retire for further consultation, 

 and a recess was taken until 10 o'clock the next 

 day. At that time no agreement had been 

 reached, but the foreman desired to ask of the 

 Court for further instructions, and handed up 

 a paper. Judge Wylie said the jury had a 

 right to be instructed by the Court upon any 

 difficulty regarding the laws. As to the ques- 

 tion of fact, that was their province. It seems, 

 from the question, that the jurors were divided 

 in opinion in regard to whether there were one 

 or two conspiracies after May 30, 1879. That 

 he understood to be the substance of the ques- 

 tion now presented to the Court. It was a 

 question of fact. He had endeavored to advise 

 the jury yesterday in regard to the law to be 

 applied to the fact in regard to this question. 

 He could only repeat now substantially what 

 was said yesterday that if the jury were of 

 opinion that the evidence showed that there 

 were two conspiracies instead of one, it was 

 impossible to find a verdict under the indict- 

 ment. This was an indictment for one conspir- 

 acy, but it was not necessary that all of the de- 

 fendants should be guilty, or none. It might 

 be that some were not guilty of the conspiracy, 

 arid others guilty. As to the effect of the in- 

 terchange of interest between certain of these 

 defendants, which, it was claimed, took place 

 about March 30, 1879, the Court had instructed 

 the jury that no mere change of interest in the 

 contracts ought to affect at all the question of 

 conspiracy. If the conspiracy continued still, 

 the interchange of interest between the mem- 

 bers of the. conspiracy would have no effect 

 whatever on the conspiracy itself. 



In reply to the question whether the date of 

 an overt act as proved must agree with the 

 date as set forth in the indictment, the Court 

 replied : 



This indictment is based on the statute approved 

 May 17. 1879. You, gentlemen, have been sworn to 

 try 'the ' case of conspiracy under that law, and the 

 character of the conspiracy is set out in this indict- 

 ment. If you believe that these defendants, or any of 

 them, are guilty of this conspiracy, that is one step set- 

 tled. When you reach that conclusion, sink a post 

 there. That question being settled, the next one is 

 as to the overt acts. There are forty or fifty pages of 

 this indictment employed in setting out distinct overt 

 acts. If any one of those overt acts is correctly set 

 put, and sucn an act corresponds with the indictment, 

 it is enough, though all the others may be incorrectly 

 set out. I called your attention yesterday to the Ver- 

 milion and Sioux Falls route. I compared the overt 

 act set out in the indictment with the overt act as it is 

 proved in this case. The overt act in this case as 

 proved corresponded in date and form to the overt 

 act charged in the indictment, if you believe the evi- 

 dence. 1 did not think it was necessary to go over all 

 these overt acts seriatim, but I confined myself to a 

 specimen. If in your judgment there is one conspir- 

 acy established as in existence since May 20, 1879, 

 and it was in existence at the date of these overt acts, 

 or any one of them, committed by any of the defend- 



