The Works of Robert G. Ingersoll, Complete Contents...

"If a recovery is to be had, it must be secundum allegata et probata; and the rule is one of entire inflexibility in respect to all such descriptive averments of material matters. The cases upon this point, many of which are collected in the case of State vs. Copp, 15 N. H., 2F5, are quite uniform."

Now, if the Court please, I not only read this with regard to the overt acts, but with regard to the description of the crime itself—the conspiracy. I will then refer to State against Copp, 15th New Hampshire. I will also refer to the case of Rex against Whelpley, 4th Carrington & Payne, 132; to 3d Starkie on Evidence, sections 1542 to 1544, inclusive; also to the United States against Denee and others, 3d Wood, page 48, and a case under this exact section, 5440:

"It seems clear that the statute upon which this indictment is based is not intended to relieve the pleader from any supposed necessity of setting out the means agreed upon to carry out the conspiracy by requiring him to aver some overt act done in pursuance of the conspiracy and make such act a necessary ingredient of the offence." The court then refers to the Commonwealth against Shed, 7th Cushing, 514, and continues—in that case it was different:

"But in all cases the principle is simply this: That where the act which was done in pursuance of the conspiracy is described in the indictment it must be described with accuracy and completeness, and if there is a variance in the proof it is fatal to the prosecution."

Now, then, we have got it established, gentlemen of the jury. There is no longer any doubt about that law, and the Court will so instruct you, that wherever they set out in the indictment that we did a certain thing in pursuance of the conspiracy, they must prove that thing precisely as charged, no matter whether the description was necessary or unnecessary. They must prove precisely as they state. They wrote the indictment, and they wrote it knowing they must prove it, and if they wrote it badly it is not the business of this jury to help them out of that dilemma.

Now, as I say, we come to the dust and ashes of this case, the overt acts, and I take up these routes precisely in the order in which they were proved by the prosecution. First. I take up route 34149. Now, let us see where we are. The first charge is that we filed false and altered petitions by Peck, Miner, Vaile, and Rerdell. When did we file them? The indictment charges that we filed them on the 10th day of July, 1879. When did the evidence show they were filed? On the 3d day of April, 1878. That is a fatal variance, and that is the end eternal, everlasting, of that overt act. Without taking into consideration the fact that every petition was true and genuine, the petitions were not sent by the persons as charged. It was presented by Senator Saunders, and that is the absolute end of that overt act, and you have no right to take it into consideration any more than if nothing had been said upon the subject.

Second. That on the 10th of July a false oath was placed upon the records. Now, that is an overt act, and you know as well as I do that the description of that must be perfect. If they say it is of one date and the evidence shows that it is of another, it is of no use. It is gone. They say, then, that a false oath was filed. When? On the 10th day of July. Suppose the oath to have been false. When was it filed? The evidence says April 3, 1879. That is the end of the false oath, no matter whether that oath is good or bad. No matter whether they committed perjury or wrote it with perfect and absolute honesty, it is utterly and entirely worthless as an overt act.

Third. An order for expedition July 10, 1879, alleged to have been made by Brady. As a matter of fact the order was signed by French. There is a misdescription. No matter if Brady told him to sign it, it was not as a matter of fact signed by Brady—it was signed by French. They described it as an order signed by Brady. It is an order signed by French, and the misdescription of variance is absolutely fatal, and you have no more right to consider it than you have the decree of some empire long since vanished from the earth. Now, this is all the evidence on this route. That is all of it with the exception of who received the money, and I will come to that after awhile. That is route 34149.

According to their statement in the indictment, holding them by that, there is not the slightest testimony. We can consider that route out. We have only eighteen now to look after. That is the end of that. It has not a solitary prop; upon the roof of that route not a shingle is left—not one.

Let us take the next route, 38135. What do we do in that according to the indictment? And now, gentlemen, recollect, they wrote this indictment. You would think we did, but we didn't. They wrote it, and they are bound by it. But if I had been employed on behalf of the defendants to write it I should have written it just in that way.

First. Sending and filing a false oath. When did we send it; when did we file it? On the 26th day of June. That is what the indictment says. What does the evidence say? April 18, 1879. Now, that is the end of that. It was a true oath, but that does not make any difference. That oath is gone. That has been sworn out of the case, and dated out of the case. What is the next?

Second. Filing false petitions. When did we file them? The 26th day of June, 1879. The last petition was filed the 8th of May, 1879, and it does not make one particle of difference whether these dates were before or after the conspiracy as set forth, but as a matter of fact, every one of the petitions was true. That charge is gone, A fatal variance. What is the next fraudulent order? That of June 20. There was never the slightest evidence introduced to show that it was a fraudulent order—not the slightest. And what is the next charge? Fraudulently filing a subcontract. And right here I stop to ask the Court, of course not expecting an answer now, but in the charge to the jury, is it possible to defraud the Government of the United States by filing a subcontract?

Now, gentlemen, I want you to think of it. How would you go to work to defraud the Government by filing a subcontract? If the subcontract provides for a greater amount of pay than the Government is giving the original contractor, the Government will not pay it; it will only pay up to the amount that it agreed to pay the contractor. It is like A giving an order on B to pay C what A owes B. He need not pay him any more. That is all. And if the ingenuity of malice can think of a way by which the Government could be defrauded by the filing of a subcontract I will abandon the case. It is an impossible, absurd charge, something that never happened and never will happen. Well, that is the end of this route with one exception. This is the Agate route. This is the route where thirty dollars it is claimed has been taken from the Government. It is that route. You remember the productiveness of that post-office. They established an office and nobody found it out except the fellow that was postmaster, and in his lonely grandeur I think he remained about eighteen months and never sold a stamp. That is all that is left in that route, that order putting Agate upon the route and taking it off, and then giving one month's extra pay. That is all—another child washed—38135—that is all there is to that route; no evidence except epithets, no testimony except abuse. If anything is left under that it is simply "robber, thief, pickpocket." That is all.

Now we come to another route, and I again beg pardon for calling attention to these little things. The Government has forced us to do it. It is like a lawsuit among neighbors. Each is so anxious to beat the other they begin to charge for things that they never dreamed of at the time they were delivered. They will charge for neighborly acts, time lost in attending the funeral of members of each other's family before they get through the lawsuit. So the Government started out in this case, and not finding a great point had to put in little ones, and we have to answer the kind of points they make.

41119. Overt acts. First. Filing a false oath. When did we file it? The 25th day of June, the indictment says. Who filed it? Peck and Miner. Well, when was it filed or when was it transmitted? According to their story, June 23, 1879. This oath is marked 8 C, and an effort was made to prove by a man by the name of Blois that it was a forgery. That was objected to, first, that it was not charged to be forged in the indictment; and second, that a notary public had already sworn that it was genuine, and that he could not be impeached in that way, and thereupon that oath was withdrawn, and you will never hear of it any more. I do not know whether it is true or not. That is found on record, page 1469. Now, recollect that oath was withdrawn. That is the end of it.

Second. Filing false petitions. When were they filed? July 8, 1879, and it turned out that that charge was true, with two exceptions: First, that they were not filed at that time; and, second, that all the petitions were true. That is the only harm about that charge.

Third. A fraudulent order made by Brady, July 8th. Now let us see what the fraud consists in. The fraud is claimed to be in expediting to thirty-three hours when the petition only called for forty-eight. You remember the charge expediting to thirty-three hours, when the petition only called for forty-eight. Now, let us see. It is claimed that to grant more than the petitions ask is a crime; certainly it must be admitted that to grant less is equally a crime. The only evidence now of fraud in this is that he was asked to expedite the forty-eight hours, but he expedited to thirty-three. That is to say, he violated the petitions, and if that is good doctrine, then the petitions must settle whether expedition is to be granted or not. If that is good doctrine there is no appeal from the petition. I do not believe that doctrine, gentlemen. I believe it is the business of the Post-Office Department to grant all the facilities to the people of the United States that the people need. He must get his information from the people, and from the representatives of the people; and while he is not bound to give all they ask, if he does give what the people want, and what their representatives indorse, you cannot twist or torture it into a crime. That is what I insist. Now, the only charge is here, and while they ask for forty-eight hours he gave thirty-three. That is the only crime. Did he pay too much for it? There is no evidence of it. Before I get through I will show you that there is no evidence that he ever paid a dollar too much for any service whatever.

Now, then, if the doctrine contended for by the Government is correct, then a petition is the standard of duty and the warrant of action, and if they gain upon this route they lose upon every other route. Let us examine. There are three charges. First, false petitions. They were all true. Second, false oaths. They offered to prove it, and then withdrew it. Third, that while the petitions called for forty-eight hours he granted thirty-three, and before you can find that that was fraudulent you must understand the precise connections that this mail made with all others, and it was incumbent upon them to prove, not an inference, but a fact, that there was not only reason, but reason in money—sound reason for expediting it instead of forty-eight to thirty-three. That is the end of that route. There is not a jury on earth, let it be summoned by prejudice and presided over by ignorance, that would find a verdict of guilty upon the testimony in that route. It is impossible. Another child gone.

44155. Let us see what we get there, and I have not got to my client yet. First, filing false petitions, by Peck, Miner, Vaile and Rerdell. When? On the 27th of June, 1879. Were they false? Let us see. Mr. Bliss, speaking of these petitions contained in a jacket held in his hand, dated the 29th of June, 1879, record, page 687, said: "We do not attack the genuineness of these petitions." That is the end of that. So much for that.

Second. A fraudulent order increasing service, and yet all the petitions are admitted to be genuine, and the order was in accordance with the petitions on the route. Before the order was fraudulent because it was not in accordance with the petitions, and in this route it is a fraud because it is in accordance with the petitions. Now, just take it. Here is the route. Every petition is genuine, the oath is true, not a petition attacked, the order in accordance therewith, and the only evidence that the order is a fraud is that it was in accordance with genuine petitions recommended by the people and by the representatives of the people. That is all.

Third. Another fraudulent order by Brady, of April 17, 1880, and it turns out that this order was in fact made by French. That was the only evidence that it was fraudulent, but the mere fact that French made it takes it out of this case, and you have no more right to consider it than you would an order made in the Treasury Department. The only objection to this order now is what? That it was in violation of the petitions. How? That it took off one or two of the trips. That was the fraud of the order of April 17, 1880. The fraud consisted in taking off two or three trips that had been put on.

Now, let us see. The next fraudulent order was July 16, 1880. What was that for? For putting the service back precisely as it was. Now, I want you, gentlemen, to understand that, every one of you. Here is a charge in the indictment of a fraudulent order that took off, say, two trips from the service. That is a fraud they say. Then the next order put those two trips back, and that they say is another fraud. It would have been very hard to have made an order in that case to have satisfied the Government; it was an order to decrease it; it was an order to put it back where it was; that is, it was a fraud, consequently it was a fraud to do anything about it. That is all there is in that case.

Let us boil it down. False petitions. That is the charge. The evidence is that the petitions are all true. A false oath is the charge. The evidence is that the oath is true. A fraudulent order decreasing the service, another fraudulent order increasing the service, that is, leaving it just where he found it. In other words, according to this indictment, Brady committed a fraud in reducing the trips, and another fraud by putting the trips back. I think it was only one trip that he reduced. Now, that is all there is in that case. People may talk about it one day or one year. That is all there is, and that is nothing.

38145. Fraudulently filing what? A subcontract with J. L. Sanderson. I say you cannot fraudulently file a subcontract against the Government. It is an impossibility. Besides all that, Mr. Sanderson filed his own subcontract. There is no evidence that anybody else did file it or present it for filing. It was not our contract; it was Sanderson's subcontract. How comes that in his indictment? Let me tell you. In the first indictment they had Sanderson; and when they copied that first indictment, with certain variations to make this, they forgot this part and put in the fraudulent filing of Sanderson's contract. It never should have been in this case. It has not the slightest relationship. The real charge of fraud in this route is that a retrospective order was made, and this order bore date February 26, 1881, and was retrospective in this: that it was to take effect from the 15th of January, 1881; but understand me, this was Sanderson's route. He received that money, and it has nothing to do with us. Still I will answer it. That retrospective order gave pay from the 15th of January, 1881. Now, it seems that before the order of February 26, an order had been made by telegraph, dated 15th of January, 1881, to Sanderson, and this telegraphic order was for daily service on eighty-nine miles. The jacket order of February 26, 1881, was for daily service on the whole route from January 15, 1881. If that order had been carried out he would have received pay for daily service on the whole route, instead of for daily service on the eighty-nine miles to which he was entitled.

It turned out that the order of February 26, 1881, was signed by Postmaster-General Maynard. The only possible charge is that Sanderson received pay for a daily service on the whole route from January 15, 1881, to February 26, 1881, instead of eighty-nine miles. But we find in the table of payments introduced by the Government, that for that quarter a deduction was made of three thousand four hundred and twenty-two dollars and nineteen cents, showing that the department could only have paid for the daily service on the eighty-nine miles, and that is exactly what the daily service would come to on the balance of the route. That ends that route. We had nothing to do with it anyway. It was Sanderson. He filed his own contract, he got his own orders, he collected his own money and settled with the department. We have nothing to do with it and we will bid it farewell.

The next is No. 38156. First, filing false oath June 12, 1879. The oath was filed May 6, 1879.. That is the end of that. I do not care whether it is true or false, that is, so far as this verdict is concerned. I care whether it is true or false, so far as my clients are concerned, but so far as this verdict is concerned, it makes no difference. There is a fatal variance. Second, it is alleged that Brady made a fraudulent order June 12, 1879. The order of June 12, 1879, was made by French. There is another fatal variance. You have no right to take it into consideration. French is not one of the parties here. Third, sending a subcontract of Dorsey and filing it. As I told you before, you cannot by any possibility thus defraud the Government; not even if you set up nights to think about it. There is no proof that the subcontract was a fraud. Let us have some sense. It is an absolute impossibility to commit this offence, and therefore we will talk no more about it. Fourth, the fraudulent order of Brady increasing the distance four miles. This was done on the 20th of December, 1880. That is the only real charge in this route. I turn to the record and find from the evidence, on page 943, that the distance was from five to six miles, according to the Government's own proof. Beside all that, the order of which they complain is not in the record. It was never proved by the Government and never offered by the Government, so far as I can find. That is the end of that route.

The next is 46132. Overt acts: Filing a false oath by everybody June 24, 1879. The evidence shows it was filed April 11, 1879. That is the end of that. No matter whether it is true or false, it is gone. Second, the fraudulent filing of a subcontract. Well, I have shown you that that cannot be fraudulent. The subcontract of Vaile shows that Vaile was to receive one hundred per cent. It was executed April 1, 1878, in consequence, as my friend General Henkle explained, of a conspiracy made on the 23d of May following. The service commenced July 1, 1878. There could have been no fraud in it. It was filed as a matter of fact May 24, 1879, and not June 4. Even if it had been a fraud, which is an impossibility, the description is wrong and the variance is fatal. There is no evidence that any order was fraudulent. Every one in this case is supported by petitions, and every petition is admitted to be honest, or proved to be honest and genuine. There is no proof at all, and not the slightest attempt on the part of the Government to prove that there was any fraud on this route. So much for that.

No. 46247. Let us see just where we are. First, filing false and forged petitions. When? July 26, 1879. By whom? By Peck, Dorsey, and Rerdell. Now, after they had solemnly written that in the indictment, and after it had been solemnly found to be a fact by the grand jury, the attorneys for the Government come into court and admit during the trial that all the petitions upon this route were genuine; every one. It was admitted, I say, that every petition was genuine. Read from page 1008 of the record and there you will find what the Court said about these very petitions:

The petitions were so good, they were so honest, they were so genuine, they were so sensible, that the curiosity of the Court was aroused to find what on earth they were being read for on the part of the prosecution. You remember it. Every one genuine, honor bright, from the first line to the last. In reply to the Court at that time Mr. Bliss said:

It is thus admitted that every petition was genuine. Second, a fraudulent order increasing one trip. This order was never proved by the Government. It was not even offered by the Government, so that the route stands in this way: First, a charge of false petitions; second, an admission that the petitions were all genuine; third, a charge that a fraudulent order was made; fourth, no proof that the order was made. That is all there is to that. And that is the end of it.