STAR-ROUTE TRIAL. 



763 



ants belonging to this conspiracy, the case is made 

 out. 



Counsel interposing here with requests as to 

 instruction on certain points, the Court declared 

 that the time had gone by for that, and refused 

 to be interrupted, continuing : 



The law requires that the overt act shall be proved 

 as laid. There must be one or more overt acts identi- 

 cal with the charge in the indictment. The proof 

 must be that some overt act described in the indict- 

 ment has been made out. There are about forty overt 

 acts described in the indictment, and if none of them 

 are described correctly according to the evidence ex- 

 cept one, and you find that the proof in regard to that 

 one corresponds exactly with the description of the 

 overt act in the indictment, that, I tell you upon my 

 responsibility under the law, is sufficient. In regard 

 to the overt act on the Vermilion and Sioux Falls route, 

 if there be a paper in a case requiring interpretation, 

 that interpretation belongs to the Court, and there is 

 no question between the Court and the jury on such a 

 proposition as that. It _is absolutely the business of 

 the Court to interpret written instruments. I read in 

 the indictment the description of the overt act in regard 

 to a certain route, and I read on the jackets produced 

 here a description of an overt act done by one of the de- 

 fendants, and that description corresponded verbatim 

 to the last and minutest particular with the descrip- 

 tion in the indictment. It became the duty of the 

 Court to say to you, gentlemen, that if you believe that 

 the jacket is a genuine paper, and the order, signed 

 "Do it. Brady," was written by Brady, there is no 

 escape that the overt act is proved. I think now, gen- 

 tlemen, I have made myself as plain as I am capable 

 of doing. 



Exception was taken to some of the remarks 

 of the judge, and a colloquy ensued, during 

 which the Court repeated to the jury, " Be sure 

 you have a conspiracy, and then be sure that 

 some overt act (one or more) performed by one' 

 of the conspirators is proved as laid, and, so far 

 as you are concerned, the question is settled." 

 In reply to a statement of Mr. Totten, that he 

 excepted to all the Court had said, the judge 

 replied : " I do not think that what I have said 

 is at all gratifying to the gentlemen. I think 

 that they do not like the law, and they have a 

 right to except to it, and to hold the Court re- 

 sponsible to a higher tribunal." In reply to an 

 exception of Mr. McS weeny to 'the expression 

 " there is no escape " from certain conclusions, 

 the Court said : 



I will explain that, too. We are talking so that we 

 can get the proper grounds for a decision in this case, 

 and I shall be ready at all times to talk with the jury 

 in regard to any difficulty they may have. As to the 

 validitv of the indictment, you are not judges. The 

 Court has passed upon the indictment _as a valid in- 

 dictment long ago. We are engaged in trying not 

 whether the indictment is a well-drawn instrument, 

 but whether the evidence sustains the indictment. 

 There is a conspiracy charged to defraud the Govern- 

 ment, and there is only one conspiracy charged. You 

 may find any two or more of the defendants guilty 

 under this indictment. If the others are guilty of 

 something else, they must be acquitted. Now, as to 

 the overt act. If an overt act set out on the indict- 

 ment is an overt act done by one or more of the con- 

 spirators, and that act is proved, I do not see where 

 there is any gap left between the conspiracy and the 

 overt act. If you are satisfied that the conspiracy ex- 

 ists, and then that an overt act has been proved as set 

 forth in the indictment, the two elements necessarv 

 for a verdict are linked together by hooks of steel. 



Where an overt act is proved in writing, the Court has 

 a right to say whether that overt act corresponds in 

 form to the overt act described in the indictment. It 

 is for you to say whether those papers were brought 

 from the department, whether this signature of Brady 

 is a forgery or not, whether the execution of that 

 order has been proved. But I am bound to say, that 

 when a man's signature has been proved on one side, 

 and not disputed on the other, it makes a pretty strong 

 prima facie case. 



Some of the jury remarking upon the diffi- 

 culty of recollecting the dates and particulars 

 of the evidence, Mr. Ingersoll expressed a will- 

 ingness that they should have a copy of the 

 record. This was objected to, but it was 

 agreed that they might have recourse to their 

 own notes, which they had been required to 

 leave behind them in the first instance. The 

 jury was dismissed, and not again recalled 

 until 6 o'clock p. M., at which time the fore- 

 man said : " We desire to report to the Court 

 that the jury have come to an agreement as to 

 some of the defendants named in the indict- 

 ment, not as to others." The Court was un- 

 willing to accept a verdict in that form, say- 

 ing : " The verdict of the jury, in my judgment, 

 ought to be complete. You have a number of 

 defendants here. Those who are guilty (if 

 there are any) will have to submit, of course, 

 to a verdict. Those who are innocent (if there 

 are any) are entitled to the verdict of the jury. 

 I do not mean to say that if, after a fair test, 

 the jury should come into court and say that 

 they are able to agree on a verdict as to some, 

 but that they are really unable to agree as to 

 others, the Court might not accept such a ver- 

 dict. But it would only be after a longer trial 

 on the part of the jury." In reply to a sug- 

 gestion of Mr. Ingersoll, that if the jury were 

 ready to acquit any of the defendants they 

 might as well have the benefit of it at once, 

 the judge said : " When it comes to the time 

 when the Court is prepared to discharge the 

 jury, and the jury should say, ' We find certain 

 of the defendants not guilty, and are unable to 

 agree as to others,' that would be the time for 

 the Court to determine that question. But 

 that time has not come. I think that no in- 

 stance could be found in which a court of com- 

 mon law has accepted a verdict of acquittal as 

 to one to-day, as to another to-morrow, and as 

 to another the next day, or proceeded on any 

 other such principle as that." The jury were 

 shut up for another night, and, although the 

 next day was Sunday, the Court met for the 

 purpose of receiving their report, there having 

 been no adjournment, but only recesses, since 

 Friday. No agreement had been reached on 

 that day, and the marshal was directed to en- 

 force the common-law rule, and shut the jury 

 up in their room until a verdict was reached. 

 On Monday, September llth, it was decided 

 to accept as final such report as the jury had 

 to make. At the morning session of the court 

 on that day, the foreman, in reply to the usual 

 question as to agreement, said : " I will report, 

 sir, that the jury stand the same as they did 



