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About Morning Oregonian. (Portland, Or.) 1861-1937 | View Entire Issue (July 19, 1905)
THIS 3IORXIXG- OREGOXIAN, WEDNESDAY, JULY 19, 1905. 5 DEFENSE WIES ITS IB Gil EOT (Continued From First Page.) out having: them recalled to their minds. i "It Is not the duty of the prosecuting attorney to convict whether the de fendants are innocent or guilty." said -Mr. Heney, "but to see that Justice Is done- It is the duty of the attorneys to state their cases and to show the truth by the evidence of the witnesses exam ined during the triaL "You hear a great deal about the District Attorney Indicting and about iis convicting men. but it Is not so. The indictment and the conviction rests witn the people, who enforce the laws. The government and myself, ask for no verdicL in this case unless you may !be convinced beyond a reasonable doubt of the guilt of the defendants. If you are convinced I do appeal to you to let nothing swerve you from your duty, that you be swayed by notning except the evidence." Mr. Heney then told how to And your way In a city. He stated that when a stranger went into a new place. If he wanted to learn how not to be lost, ne went to some high place where he could get a bird's eye view of the streets and the lay of the town. In this Instance in order to show the Jury the case without any obstruction he wanted to give the Jury a bird's eye view of the evidence and of the case, as in his estimation proved by the Government. Biggs and Williamson and Gesner had been charged with a conspiracy to Huborn perjury. If it apearcd that they agreed to have men take up lands, wlt.i the prior understanding and agreement that when title had passed, the claims should be transferred to Williamsan and Gesner for $500, then it was shown that tne 'defendants were guilty, for It was supposed that they had contem plated the consequences of their acts. Mr. Heney then told the story of the conspiracy as outlined by the Govern ment. Williamson and Gesner had been running sneep on the ranges of Crook County, and there had been trouble be tween the sheep and cattlemen. About July there had been a conversation with Gray, according to the testimony of Williamson. Tnls was before there had been any filings and Gesner tells now the tilings had been made on account of this talk. The cattlemen had threatened the Williamson firm and told them to keep off the land leased by it. Gesner had then gone to Biggs and had discussed how to take timber land with him. About June 15th. said Mr. Heney. Wil liamson admits that the word "Prine vllle" upon the Polndextcr Hotel. Prine Vllle, register was written by him. and the name Wakefield Immediately under It, probably in the handwriting of Wake Held. June 13th. of 1902. Now. Willlam con doesn't swear that he wasn't there and he tells you that he mlKht have defi nitely located himself at all times If he had known it was coming up. Well, didn't he know It was coming up? Wil liamson and Gesner were both led by counsel, their own counsel, to testify, and I don't mean by leading questions, but by questions that led them along the lines of the facts that they wanted to bring out, and what was the story? The story was, to keep away keep llllam son away from being there bofore any of these filings were made, at the time when there could have been any talk. Now, why? Why do I say this? Be cause Biggs says, "Oh. I never talked with Williamson, or saw Williamson, or knew anything about Williamson in the matter at all, until one day he came Into the office and said 'Well. I have got the fever, too. and 'Can you file me?" and I filed him." Now, it Just, happens Mr. Biggs hadn't framed this thing up so he nad the data before him at the time, or he probably wouldn't have made that statement. Just happens that Mr. Williamson happened to get that fever and to go in there and tile on the same day that Van Gesner got it. and the same day that Biggs himself got it. and on the same day that Henry Hudson, after having the talk with Williamson and Van Gesner, as he testifies, upon the street and being shown the plat and told what to file on. got it and went In there and Biggs furnished the number for It himself, according to Hudson's testimony: on the same day that Joslah Hlnkle got it. whose claim was selected by Gesner: on the same day that Elmer Kaylor got it, whose claim was selected by Gesner: on the same day that J. A. Brown got It. whose claim was selected by Gesner: and on the same day that Monroe Hodges got it. whose claim was selected by Ges ner: and on the same day that Sam Hod ges got it. and his brother says that he had no money to prove up with or to take up a claim with, and that he didn't apply to him to borrow any money, and whose claim was selected by Gesner: and on the same day that Irwin Wakefield got the fever and came In there: and on the same day that Emmett B. Holman got the fever and came in there. Now. then, doesn't his story bear the stamp of inherent improbability upon the lace of it that he never talked with Wil liamson and that all he knew about it was when Williamson came In there and said that he had the fever and "can you file me?" Under the circumstances. Wil liamson admitting now. himself that he was up In the timber, and he was up in the timber prior to the filing, as shown by all this testimony: that he was tip in the timber: that he had an understand ing at that time with Gesner: that Ges ner was making these loans and was go ing to make them: that Gesner told him he was: before he made his filings now. but after some of the locations of July S had been made. Now, he wanted to give the Impression, they all wanted to give the Impression, in the hope that they could get Wil liamson out of this, and I think it is a fair inference that, because of the of fice which he holds his Influence might e of some value to them afterwards If they got him out of it and they couldn't help themselves any by keeping him in It it wouldn't make them any the less fiiMtv if thv tcent Williamson In. and Ft might be of some benefit to them to get him out of It, Now. 1 say that that is a fair inference or deduction from all the evidence in this case that they were endeavoring to keep him out of It. Biggs Story Improbable. Now Biggs tells you that story and I say on the face of it. it Is Improbable: It Is inherently improbable: It bears inter nal signs of being Improbable. Now. be cause of the fact that Williamson knew, and as he says he believed they were taking it up for the grass; that they were making loans in order to get the grass: that his understanding wasn't quite the same as Gesner's in regard to that his understanding, now mark you. at the time he filed and Gesner had made an agreement with Biggs that Biggs was to, attend to all the mortgages and notes and conduct this business for him. and Biggs had been telling people to go' up there, and yet when "Williamson comes In and files the same day that all these peo ple filed who are giving notes, and who don't even furnish their own filing money, like Henry Hudson he has no talk with Williamson about it at all It is Improb able: it is unnatural: It isn't the natural course of business: it isn't what would naturally happen between men; It isn't common sense, and therefore 1 think it a fair inference that it is not true. Now. then. Gesner having told Biggs two or three weeks before, and I think It Is fairly to be presumed that William son was there, because Williamson him self is careful to testify that he was up there after the nomination a short time, and then he doesn't remember being up there until July: he doesn't remember or Gesner telling him until after some of the locations had been made. Does he tell you that he wasn't up there? Docs he tell you that Gesner did not tell him so? No. Now. wliy doesn't he tell you that he was not up there?. Because ho didn't have warning. Why. Isn't the whole theory of their case, as shown by their own witnesses. Williamson. Gesner and Biggs that Williamson couldn't be. in it because he wasn't up there until after some of the filings were made, and when he comes on to the stand and Is careful to tell you that he believes he was up there in April and not again until July: when Van Gesner is so careful to tell you that he believes he was up there in April and not again until July didn't ho have warning? Didn't he know he was going to be called on to sai Just when he was up there? Didn't he prepare for it, and didn't he tell you. now. when he te confronted with that hotel register. r4 Geencr'a attention had been called to It at least two or three days before upon this witness stand, and be was asked If Williamson didn't stop at the Prineville Hotel on June 15: he said he didn't remember; he wouldn't say no. there. , Wasn't Williamson's attention called to It. and be tells you If he had Known, tie would probably nave i oca tea hlmtelf cxactiy. Now. let roe tell you ; something. It Is human nature for a man to tell everything absolutely, when he Is , confronted with the conviction of a crime. that hiifvp win hiin him. The m-in- ' clplc of elC preservation leads him to do i I . -J . .W AM.n linn it, and that principle of self preservation , loori. Viim o nmun for fh trial tn an. I ticlpate; and they did prepare for the trial ana tney am anticipate; ana tney ; anticipated and saw that it wouldn't do to have Williamson there in time to make that agreement. Now. then, they didn't dare swear that he wasn't there, because it might be possible that the hotel register4 would confront him and that we had It. -and it might be possible that the hotcl- keeper remembered, with the aid of that register, and It might be possible that tney couia ne proven to have stated false- I Iv as to such a malarial matter bv tirh i LJ..S. iu2 roaV7??.1 Infur -Sucn proa i inai mey couian i get away irom, if backed up by that register. Therefore, we find these men whose every reason would be to tell all the facts, and espe cially to prove and demonstrate to you that Williamson was not there In June, if they could demonstrate It. we find them saying, as 10 mat material matter "i uDnbViK7 I St their range and" evidently TecuVad- .iS1?,MtIlat hK illttlc ln dltlonal range, and It haxing become fash Ittu lnfy JSlSi ST JM. SEL, ex' ! lonable to take up timbeF claims, they ..in-" i i Ci ' . iL" j - r'V'r ville Is In his own handwriting puts him I there for it is In his own handwriting; he wrote it. presumably, at the time of the date It bears. "Williamson There June 15. Well. now. from a birdseye view. then. I should say that Williamson was up there on June 15; that Van Gesner had a talk with him whether this cattleman had talked with them in February or March, or whether he had talked to him at that Ume. that Williamson ana Van Gesner had a talk; that they agreed that they would borrow money upon the firm note from the bank, because this was so done by Van Gewier. who was managing the firm's business; this was for the protection of the firm property, a is ptated by both of them; they agreed that they would borrow money upon the firm note and that Van Gesner would employ Big and that they would get all the people they could to file upon lands with the agreement that they would give them 0 a claim when they got through; and that. In having these filings made, they would select them, not for the tim ber, but so as to most benefit themselves for a sheep ranch. Now. Dr. Van Gesner swears he admits that he selected. even" piece; every piece for all these outfWer?. even Biggs; that he told Biggs which Elece to file on; Biggs denies it. and says e picked It hlmrelf. but Gesner says he picked it. as I shall show you In his testi mony later on; Gesner picked all of thcsv for the outsiders with the exception of Mrs. Williamson. Now. right here Is an other point that nhows that Williamson understood this thing perfectly; prior to July 1, two or three weeks before any filings were made. Gesner goes to B'ggs. acccordlng to Biggs' own testimony on June 30 the first bunch of filings were made. The people went out there; they found Van Gesner out there; they were told what claims they were to file on and they came back and filed on them. June 30. When did Mrs. Williamson rile? On ' July 1. the following day. Now. doen t that show oh the face of It that William son had an understanding before going , down to The Dalles he was- up there on , June 15 he had an understanding with 1 Gesner he was to have his wife file: he went back and he did have his wife file. 1 and she filed at The Dalles the day after these people filed who went out there, and went back to Prineville and filed on the 30th of June. Now. what further shows that? Two of those who filed on June 30 were Campbell Duncan and Susie Duncan; they arc of the first bunch that went up there. Now. here Is Mrs. Will iamson's claim; here Ib Campbell Dun can'sfour in a row; right under it: and here Is Surfe Duncan'?; now here Is Campbell and Susie Duncan, up here at the timber Just a day or two bofore June 30. Gesner r showing them which pieces to file on; and here was William son down at The Dalles and Mrs. Will iamson filing on a piece and taklns it all in a row; a piece which they couldn't know, in advance, up there now. was going to be taken unlrat Williamson wired Gesner, and got word to him that he whs going to have her file on the fir?. Mark you, Campbell Duncan filed the day before the fln?t; now, lfow Is It they Han't put Campbell Duncan on top and Mrs. Duncan's claim right there? Why is it that they didn't put these claims adjoining there? Why did they leave that vacant one above on June 30? Why? Because there was an understanding with Williamson that that is where his wife's claim is to go. and that that would be the shape of it; right alongside of their leaned land. All of that in green is their leased road land; everything that ap pear? on there is leased road land, as shown by the testimony in the case, and everything In the darker color here Is land that was filed upon selected by Gesner. and proven up or final proof made upon. The lighter ones arc- the ones that the selections were made by Gefncr. and they were relinquished before final proof was made, but every one now there, nlatted on there, outside of the ; creen and yellow, are the filings. The I darker ones the filings that were proven up; the lighter oner tnose mat were se lected by Gesner and that were relin quished. The yellow lands are the school lands, i-chool sections; the green ones leased from the road company. Were there selections made by Gesner to get the timber, or where they made to make solid tracts of grazing land? Look at It and say for yourself. Can anybody look at the plat and doubt for one minute, in spite of Ges ner's positive testimony that he se lected it for the timber, that, as a mat ter of fact, they were selected for the pumose of making as solid as possible a body of land to keep other people out. so that they would have it for WllliainsoiEvaslve. It is always significant when a de fendant tries to get away from the ac tual facts. Now. what did Williamson tell you about his wife's claim? He was evasive, was he not? Didn't he say that he didn't remember whether he succosted the piece to her or not; that he didn't know whether he told her it was alongside of anv of tli? i leased land they had or not? And i then didn't he finally admit that It was taken because of the creek that was 1 there: and If it was taken because of t the creek that was there, it was be i raufi he wanted the creek for the firm of Williamson & Gesner. on account of their sheep range; and yet he told you n few moments before that. "Oh. my wife's claim l away off In another township, and on another ranee." Well, was It away off In another township and on another range? Wasn't It abso lutely the same range? There Is the sheep-shearlntr plant, and didn't he testltv himself that this land they had leased, and that this land was level until it got here near the head of that creek, and then it commenced to go down? . Now. they not onlv had Mrs. Will iamson file there, but they picked this for Duncan, and this for Mrs. Duncan: and they had those under lease: and they nicked this, and this, and this, and this Gesner did. For whom? This one for Ernest Starr; that one for Sam Hodges Sam Hodges, who had no money, who didn't anply to his brother for money Sam Hodces. who went up there as one of lhat crowd Sam Hodges, whose piece was selected by him. but who relinaulshed before he made final proof. Ernest Starr, for whom the Doctor selected the piece, accordinc to Ernest Starr's own testi mony and he Js a nephew of WIHIam gon'i: and it was apparent that he didn't want to hurt anybody, but It was I also apparent mat. ne naa maae up nis t mind to tell the truth absolutely; and he did tell it. I think It Is apparent i from his testimony that he did tell the : truth from beginning to end. and tell It. no matter where the chips might , fall. And what did he nay? He says. ! "Gesner asked me if I didn't want to ! take up a claim, and said if I would ! tnke up a claim they would give me t ivu iur lk n lieu 4. iiau k iiiuru ufcj on. and that I could make S75 out of It. about. And he told me where to take It, and I acreed to mat. And then j they asked h.im. under cross-examina-: tion. "Do you mean to say that you swore to this thine when you had an (agreement?" And he said. "Yes. I had an agreement-' That is the nephew of ; Williamson. Thev have had very little I to say about him so far. Let us see j what thev will ay In argument. I Now. that was selected by Gesner. ! Those two were selected by Gesner. 1 and that one. I think the proof shows. J was selected bv Williamson. Was ' there an understanding? Did they 1 know what, they were doing? Did ! WUiamson know what he was doing? Was his wires taicen on in anotner township, on a different range? Wasn't it art of the very range they were using? Wasn't that the western ex tension of the Cadle ranch that they were using? Weren't thev trying to hold that land by the leases that they had udob the m4 JabAb vr tlttr? I Weren t they trying to protect the road lands by taking the two adjoining sec tions? Now. lust look at Bitm claim. Hera Is the Cadle ranch and here Is Van Ges- ners claim (Referring to plat). Here Is Williamson's claim. There Is the Biggs ciaim. Mere is land under lease all around It. Now. what was that taken for? What was that taken for? And that? Those '"'ere all three selected by Gesner. What WfT lhM f M VfTt fflT aMVI that? T)lV these taken for above that? T were selected bv Gesner. Now. look They on the outside of that one. Here was a "'y , . , ,V it They get Into both these; they get on tne outride or mat one and they get on the outside of this one; on every side as to this one. That Horse Heaven Creek, the con nection is not shown there, and I don't Know, out I understood from Mr. Wil- " K.a""railJ" . .ufA1 iil0!, &?vrn hf to them There it ,,iT rvT TJit-- : r , , , lnto t"s Crooked River. Now. you will wf. that nndrr lfa thv at that t!irn see that under lease they at that time had on the west ide of the river only that portion of that section and the por tion on inat siae oi mis section, ana that little piece of this section. And here were their main ranges. Now. we find that, these people being In the sheep business up there, and the question arts- made up tneir minas mat tney would eeUrc a ranee which thev could hold secure a range which tney could hold on to by having people take up timber filings. And you will notice that the most of the people whom they selected were people who would not be very apt to sncculate In It. because they were practically all people of small means, to whom $75 for making the proof would be an object. Now, then, having had these people file for the purpose of getting the grazing and for the purpose of securing the con trol of this land, some of them made final proof; and after some of them had made final proof, and before some others had. there was an article appeared In The Oregonian which showed that Sec retary Hitchcock was going to Interfere with the taking up of lands fraudulently In Oregon, especially timber lands, and that the matter was going to be Investi gated. Now. then, here wc have Wil liamson on the scene again. William son Is back up there. Henry Hudson had been asked by Van Gesner. according to Hudson's testimony, in the presence of Williamson, to file, and a plat was shown to him. and he was told he would get clear if he did file, and that Gesner would take the land. Hudson testifies that Wil liamson was sitting right there and heard It. Now. then, when Craln and Gaylord come to relinquish they go to the of fice, after having the talk with Biggs and making the relinquishment, they go to the office of Williamson & Van Ges ner. and when they get to the office Wil liamson is sitting there with Van Ges ner. and Williamson reads this article in the paper, and having read the ar ticle In the paper he says to them now, they both testify to this that William son .says. "I am sorry, boys, that you cannot prove up now. but I am afraid there might be trouble, but this thing will quiet down after a. while and you can prove up later on." I. may not get the exact language, but that is the sub stance of It. I will give you the exact language later. Now. then, does Wil liamson deny that? He doesn't, and neither docs Van Gesner deny It. that I can find; but Williamson, at any rate, docs not. and I will look for Van Ges ner's later and show you. What does Williamson say about it? He says he doesn't rccaii ever having seen Gaylord until he saw him on the witness stand. Well, now. wc know that Williamson's memory is not to be trusted at all. Why? Because the testimony of Watklns. the testimony of Gaylord. and the testimony of Craln Is that up at the timber, at the time their pieces were selected for them. Williamson told them which pieces to take: that Williamson wrote it down In Watklns book; that he not only wrote down the section, but wrote down which piece each one of them was to take, and specified which quarter section each one waa to take: and Van Gesner admits that that talk did take place: that Wil liamson did write ln the book and ex- filain it by saying. "I was going to write t and Williamson Interfered, and said You had better let me write It. because when it gets cold there can't anybody read it If you write It." Now. William son himself tells you that he doesn't re member; that he would not have remem bered wjiting those things In that book at all. and would not have remembered mat conversation, and does not remem ber It yet, but that he thinks that It probably occurred because It sounds Just like him to have made that facetious re mark about Gesner s handwriting; and that he never thought of It, however, until after he heard Van Gesner's testi mony upon the stand, which called It to his mind. Well. If that Is the best of his recollection, if. having been out there In the timber and lunched with those men. as they testify they got there, and they had dinner together, and they had & gen eral talk at dinner, and after dinner It was that Williamson told them how to find the land, to go and look at It, and that Williamson wrote It down ln the book, and vet he tells you that to his knowledge he never saw Gaylord until lhen hla knowledge Is not worth much he saw mm upon mis witness stand. to this Jury. a n8 remembrance is not worth much to this Jury; because you cannot doubt that that happened; you cannot doubt the testimony of Gay lord. Craln, Watklns and Van Gesner that It did happen, and Williamson's half ad mission that he remembers it after hear ing the statement, or thinks It must have occurred because it sounds so familiar. And yet he told you that be hadn't, to his knowledge, ever seen Gaylord before. Now. what as to the talk when "Gaylord and Craln went together to the office? Craln tells you that Gaylord was with him. Williamson admits that Craln came Into the ornce on more man one occa sion, and may have come ln and had Kme such talk, but he doesn't remember It. He doesn't deny It. Van Gewier doesn't deny tr. Then the teKlmony of Gaylord aad Craln s tan As uncantrtuflcted cn that point. And K vncllrBdlcted. what ttoec it sfcow? It afeow mat in lHt, or ax axrale early la's. WUHmb- I DR. VAN GESNER. J. N. WIIOJAMSON. MARION R. BIGGS. j i i ! son. Just, the minute he found out that the Secretary of the Interior meant busi ness, and that he was going to Investi gate three fraudulent timber claims. Williamson took fright. Now why? They permlt you to prove, when a man Is charged with a crime, that he fled and tried to escape arrest. Now. why do they permit you to prove that? They permit you to prove that because, ordinarily, it aU?? SniS? t owne&r guilty conscience is Its own accuser. Ordinarily, the honest man docs not flee from a charge, but goes right to Its face foremost, and confronts it boldly. That U the reason that It te permitted. becaui the common experience or mankind tens us Zr-rS A-" wh he U h cnarged with crime, it uj e viae nee mat Is proper to be considered, and that Is very convincing, ordinarily, that the man Is guilty. "Just as the ax." as is said by WIgroorc on Evidence. "Just as the ax leaves lu mark upon the speechless tree, so the guilty act leaves its mark upon the conscience of the evildoer." And with that mark on the conscience, the moment we open the window of the mind so as to look In. wc see there that brand, that mark. Just at me mark is left upon the tree by the ax. Now. what ' shows It to us? What external signs show it to us? Any act on the part of a ucic.iiii.nl mai riiu i uwi .- ecutlon. The Innocent roan does not fear prosecution. If these men took the ad vice of two lawyers, whom they believed In. that they had a right to loan money upon mortgages and they did have there Isn't any question about that, and there har never been any rul ing of the Department of the Interior, to my knowledge, to the contrary, and cwr- THREE DEFENDANTS IN THE LAND-FRAUD TRIAL talnly the Supreme Court of th& United States has so decided that they did buvc the right to loan money If tney took the advice of a lawyer In advance, and knew from the advice of two lawyers, mat they had the right to loan money upon mortgages, what were they afraid ot? Why did they feu r when they read that Hitchcock was going to Investigate land frauds in Oregon, or elsewhere? It was the rear that come? from a guilty conscience. It was the knowledge that In this case the mortgage waa a mere subterfuge. It was because, ait testified to by one or more of these witnesses, whose testimony I will refer you to later. when the talk was made by Van Gncr up in the woodi.'. the proposition wus tnis: ' HSrtiitCan 1 makr a C?nillJi;ct.T!;Uh :. "71 1 " . " J ' ' . '. . . : ncoslc understood that a contract meant Ul". h.1,d,i0..,1" ?llns' .?sX".?an we by their testimony, or It wasn t contract; one of them says Biggs told him. "When you set before the grand Jury Just testify that there was no con tract d rawed up:" If there was no con tract "drawed up" there was no contract, that was their understanding, purposely Fut Into their minds by Gesner and Bigg, think, as Is shown ty this evidence; I think that is a fair deduction irom the evidence, that Gcuner says to them: "Now, I can t enter Into a definite con tract, boys, but will select the land for you to file on. I will pay all the expenses, and I will take a mortgage, but that will only be for a short period, until you get your title, because I will buy it on! you and give you JOO for it the minute you get your final receipt; but I can't make a contract in advance; but that is all right; this is Juk temporary, for the purpose of securing me until you do get your title: ar.d Just as soon as you do fet your title you can deed It to me. and will give you the 0. And there Is T75 In It for you." Now. didn't that oc cur up there ln the woods? Isn't that ex actly what occurred? And if that Is what occurred, they violated the law. There Isn't any question about It. Because If that Is what occurred, there was an un derstanding, a definite understanding, that, as a matter fit fact, these men were taking up this land as the agents, as the dummies, as the rep resentatives of Van Gesner. They were not taking It up for thmselver; they were taking It up for him; they were tak ing It up because of the profit of $75. but they were taking it up for him; and it was wholly Immaterial to them which piece they took. You sec that none of them was particular as to which piece he took; he was willing to take any piece that he was told. If be was taking up land with the Idea that he wanted to sell It to the highest bidder, and wai rimply borrowing the money, then he would have wanted to have some say about the piece that he would take. Moreover, if he was borrowing the money, and that Is what he understood, and mat is all that he was doing, why wouldn't he give hi note and mortgage at the time that he got the money? Biggs tells you that Ben Jones objected to giving any note and mortgage, because he had nothing to show for it yet. He had nothing to show for It yet. because he didn't have the final receipt: he didn't have me title to the land; therefore, he didn't want to give the mortgage. Why, if he was bor rowing the money, he had the money to show for It the minute the money was put up. But he considered that be had nothing to do with It: he didn't put up the filing feet? even; he didn't put. up anything, neither he nor hlft wife. All he did was to go before Biggs and file on the piece of land he told him to file on. with the understanding that when he got through he would net about $73. and that when he got through he had to deed It over to Williamson and Van Gesner. That Is all there was to the proposition. Now. take the way In which they filed. Biggs said that he didn't remember tell ing anybody when to meet Van Gesner up there. Well. Isn't it strange that Ben Jones, and Nancy Jone. and Campbell Duncan, and Susie Duncan, and Frank Ray. and Ethel Kay. and Aver Calavan and Joel Calavan all happened to get up n ft,. ..rv.. j-.m,.! .,, first batch that went up. And isn't It : V" re.a.y. to,ack nlra me question, strange that when they got up mere, they . , A. I dldn t xnow you had that found Gesner and Graves there, and 1 Kind of a signature. Gesner and Graves had been surveying! Q- I asked that question of-Ges-out the claims so that tbey could give 1 ner. whetner you hadn t been at Prine them the numbers of them; so that they ville. when he was on tne stand the could select them for them. And he Just ' other day. on June 1. Now. then, didn't L happened to hit It to get them up there at the right time. Now the next batch that went up were Laura Foster. Robert Foster, Sarah Parker. Ora. Parker. Laura B4fgs. Men la. Grave. Ada. Foster, and Alfred Parkey. Isn't strange that they happened all to so up at the sexse time. July S. a little ever a week later, and that when tlwy got up there they found Van Geser. and were toM by Mm what to Ate ufsoa. And he telle you Sul he dHn't, talk it over with his wife as to when she should go up. but that she told him she had heard that Gesner was going to put up the money, and that-she was going up to file. What .can you think of Biggs' testimony In that "respect? Now the next crowd who were up there, filed on July IS. and there was Joslah Hlnkle. and Kayler. and Brown, and "the two Hodges, and Holman. Feuerhslm and Hudson filed theSSe day. but" didn't up t5 rrhe tlmber. and ih-rl, wer Gavlord and the timber: and there were Gay lord and Craln. and the two Watklns. and .Jennie Craln who filed on the 19th. But they were up there while Williamson was there. evidently before the ISth I think, they - it un there that they filed. Now that crowd bad gone up together. Then Henry Beard was up there when Williamson was up there surveying, and Henry Beard It Is who testifies that Williamson helped to survey his claim the claim that he was to file upon, and that that evening at dinner Gesner came back to the camp, and said to Williamson "We must get that claim, sure, because there is a spring on It." Now. there was a spring on it. and It turned out that It had been filed upon by McRae. some other sheepman, And what did they do? They changed the filing, and put him on another quar- ..... .v, ...... .v ......... afterward. after it had been done. That Is his testimony as to what Gesner told him. Now there are Jeff Evans and Mahala Evans, who say they met Beard coming down when they were going up. and they filed on July 33. Adolph Kotzman and Sarah Kotzman on July 2S. and Chester W. Starr July 3. Jennie D. Pickett on August 1, and Earnest D. Starr on August 5. Money Paid ny Gesner. Now the money for all of these was paid by Van Gesner. The first J3C0O was money borrowed at the' Prineville Bank, on which they paid 10 per cent. The "second money was JfiC'W that was borrowed at The Dalles, upon which they paid 7 per cent. Williamson was on the note at The Dalles, and negotiated the loan, and the Doctor drew against the loan some days about a week or two. I think It Is be fore. The first was December 13. J1W4. j 37-11 days after. The note had been signed by Williamson evidently already. ana ne nad aavisea ucsner. and had t .. r- .' , ! S of them, admitted that it was r- rowea largely ror the purpose of making these loans. Now. then. I have tried to make a fair opening statement of what I conceive to be the facts In this case, and of what I believe to be the evidence ln the case: and after I have heard what explanation of these facts Is offered by the attorneys for the defendants. I will attempt to aid you further in reaching a proper con clusion. If I think that ft looks as If any thing requires an answer. Mr. Williamson's testimony In regard to the talk with the man. and with Gesner in regard to protecting the range is as follows: First, he said he wouldn't swear that he wasn't in Prineville on June 15. and that he thougnt tho Prineville there in the register was In his handwriting. Then this was his testimony: "Q. You don't recall having any conversation with Mr. Gesner and Mr. Wakefield In the middle of June. 1302. about the necessity of protecting your sheep range out there by acquiring lands? "A. The chances are if I was out there the 15th of June, we had talk along those lines. f "Q. Do you remember having a talk with a cattleman In regard to tneir keeping you from running sheep there? You heard the testimony of Mr. Ges ner. didn't you? "A. Yes. air, I remember of having a talk with a cattleman. "Q. Who was the man? ''A. Do you really want to know? "Q. Yes. of course I do. "A. Mr. J. H. Gray. "Q. J. H. Gray. Has he a cattle ranch "Q. Where Is It about where from the sheep ranch? -Q. It is about 22 miles from Prine ville. "'J. About how far Is lt from the sheep ranch? "A. From what? "CJ. From the sheep-shearing plant? "A. I would say that Mr. Gray's range Joins ours above us on the river. "Q. On the north? A. Ease "Q. On the east. How far east Is his ranch, or any land that he owns; iiow far ecst of Horse Heaven Creek "A. Well, the mouth of Horso Heaven Creek Horse Heaven Creek empties Into the river immediately through his range: about through me center of It. I am speaking of Mr. Gray's range now." That Is all there seems to be on that subject there. He says: "I think If I had th opportunity. I could place my self exactly when that signature was made In Prineville. "Q. Haven't you had plenty of time? "A. 1 didn't know you had that kind of a signature. Now. he didn't know we had that kind ot a signature, but he certainly know that Van Gesner had been asked two or three days before If he wasn't there on June 15, and if he didn't stop at tne Polndexter HoteL What evidence we had of mat fact. I will admit that hs didn't know; and I will admit that I Vr.1.. 1 xnow ?nu i WV1 amit. mat 1 dldn t propose he should know until you, as a matter of fact, talk It over urlri Rtnir hfnr vnnr wlf HmA aa. come to an understanding that if yeu could sarure the control eC sme landa up therein 15-19 and 15-1S. In addition to thnso you md laaed, yeu wnM do se? "A. Te are. ipaa Icing f my wife's elate? -U. Ye. before -rowr wife MM.. , "A 1 on't Ulak I tJk Ok mmU- ter over with Gesner unless I was up there in June, which I can't recall; I had no opportunity to talk it over with him except the days I was there after convention." Now. that Is the very point that I am making, that their theory of the case was that he didn't have a chance to talk It over with him from the time that he was up there after the conven tion until after some of these filings were made. And I will leave It to you to say as to whether this evidence doesn't show that, as a matter of fact, he was up there on June 15: that at that time he wrote that word "Prine- ' ville" -on the register: that at that time j he had a talk with Gesner; that he went back to The Dalles with a mor ough understanding of where his wife was to file, and that Gesner was to se- j cure these other people to file, and as ! to where Gesner was to file the other people, and that that Is the way it 1 comes about that there was no conflict l between the filing of Williamson's wire on July l, and the tilings or tnese half-dozen or more other people on June 30. who nad gone up there and had their land selected by Gesner: and there not only was no conflict, but. as a matter of fact, they matched In Just as you would want them to match In order to make that -solid tract of land. If you were doing it yourself, and want ed to -have a sheep ranch there. JUDGE DE HAVEN'S CHARGE Defense Waives Argument and Court Instructs the Jury. At the close of Mr. Heney's statement the defense asked to be allowed until afternoon to begin their argument and the request was granted. Upon the re sumption of the session at 2 o'clock. Mr. Bennett stated that, owing to the fact that the Jury had been listening to the testimony for twelve days and it would be unjustifiable to force them to listen through several days of argument, he would consent to submit the case without argument. The court asked Mr. Heney If he would desire to make the closing argument, and the District Attorney waived his right, stating that he was willing to allow the Jury to reach a ver dict without further speech. The case was then sent to me Jury after the charee by Judge De Haven. The statement made by the court was as follows: Gentlemen of the Jury: It Is a principle of law that a defendant upon trial is presumed to be innocent. This Is a sub stantial right of the defendant, and the presumption itself is a matter of evidence ln his favor, and Is sufficient to entitle him to an acquittal unless It has been overcome by evidence which leaves in the minds of the Jury no reasonable doubt of his guilt. By a reasonable doubt is meant such a doubt as a reasonable man might entertain after he has endeavored to reach a fair and honest conclusion as to the weight of the evidence on which he Is required to act in returning a verdict: or. stated in other words, a Juror may be said to entertain a reasonable doubt of the guilt of a defendant when after con sideration of all the evidence his mind Is in that condition that he cannot say that he feels an abiding conviction to a moral certainty of the guilt of the defendant. mat is. wnen ne cannot conscientiously say that he Is fully satisfied from tho evidence of the truth of the charge made against the defendant. Charges In Indictment. The indictment In this case Is volumin ous, but It will be sufficiently accurate to say that It charges. In substance, that the defendants and divers other persons conspired together to Instigate and pro cure a large number of persons, to-wit, one hundred, to make timber entries un der the laws of the United States and ln making such entries to willfully and cor ruptly commit perjury by appearing be fore one of the defendants. Marlon R. Biggs, who was then and there a United States Commissioner, and stating, under oath, at the time oT applying to enter such land, that the applicant was apply ing to purchase for his 6wn exclusive use and benefit, and had not. directly or indi rectly, made any agreement or contract In any way or manner, with any person, by which tne title he might acquire should Inure In whole or part to the benefit of any person except himself: when, in truth and In fact, the entry was made for the benefit of the defendants. Williamson and Van Gesner. under an agreement that the title to be acquired was to Inure to the benefit of said Williamson and Van Gesner. The Indictment further charges that cer tain overt acts were performed by the denfendant Biggs in preparing statements for the signatures of the entrymen named In the indictment. ln order to constitute perjury, there must be willful and corrupt making of a false statement, and however false or untrue a statement may be. there Is no perjury If the person making the state ment bellfeves It to be true at the time of making it. The suborning of perjury necessarily Involves every clement of actual perjury, and In order to constitute that crime, it is necessary that one person shall pur posely and Intentionally procure or In duce another to commit perjury: that Is. to willfully, corruptly and Intentionally swear to something which the party tak ing the oath docs not believe to be true. Xo Difference if Unsuccessful. Conspiring to suborn perjury, which is the crime charged ln this indictment, in volves every element of subornation of perjury except the actual completion of the offense. It does not make any dif ference whether the conspiracy Is suc cessful or not. There must be the same Intention to procure the parties to be suborned to swear to something which the party taking the oath does not believe to be true, and It must be Intended by the person who procures the taking of such oath that the false statement there in shall be willful and corrupt. Although you may believe that the de fendants advised or induced various per sons to make application to enter the lands referred to ln the Indictment, still if they believed that the applicants could truthfully make the statements set out in the Indictment and required by the law. then the defendants are not guilty of the crime charged In the Indictment. The statute authorizing the sale of tim ber and stone lands, provides that any person desiring to avail himself of Its provisions, shall file with the Registrar of the proper district a written state ment In duplicate, duly verified by his oath, describing the land which ho de sires to purchase, and setting forth, among other things, that he does not apply to purchase the same on speculation but In good faith to appropriate it to his own exclusive use and benefit, and that he has not, directly or Indirectly, made any agreement or contract, in any way or manner; with any person or persons whomsoever, by which the title which he may acquire from the Government of the United States, should Inure, ln whole or in part, .to the benefit of any person ex cept himself. Any citizen of the United States, or any person who has declared his inten tion to become such, may purchase lands under this statute, when- such purchase Is for his own exclusive use and benefit, notwithstanding at the time of making application to purchase he may have in contemplation a future sale of the land. Right to Borrow 3Ioney. An applicant for timber land has a-right to borrow money to prove up on his land, and. If necessary, to mortgage the land to secure payment of the money bor rowed, but the mortgage must be made in good faith and not given under any agreement, directly or indirectly made, that as soon as the title to the land Is secured the mortgage shall be canceled and the land Itself conveyed to the mort gagee. In other words, the transaction must be a loan of money to be repaid, and not advanced by one party to the other upon an understanding or agree ment that It Is not to be repaid, but that, when title Is secured to the land ap plied for. such title shall be Immediately conveyed to the person advancing or fur nishing the money. A man who desires to purchase timber land has a right to offer any price he may. see fit therefor even before the land Is taken. He may lawfully go into a Ideality where there ie vacant timber land and let It be known that he wants to buy such land and the price which he will pay. and in so doing there Is no violation of the law. He may also loan money to applicants to enable taeta to prove up, with the intention on Ms part of buying it. If possible, after title Is secured, and if then; no direct r Indirect contract or agreeaesL for the perchase. of the land at the time of makinc the loan, his action In Waning the money would be lawful. What te statute denounces te that a prtjr shall not. when aeptyiar to pr eha.. have directly or indtreetly. saale any mrmwat or, contract, la any way r mnaner, with any person, r peraoaa, by ihlcw tle Utte Whfck be my awquirt A LETTER TO OUR READERS 53 Cottage St.. Melrose. Mass. Jan. 11th, l&M. Dear Sir "Ever since I was ln the Army I had more or less kidney trouble, and within the past year It became so severe and complicated that I suffered everythingr and was much alarmed my strength and power was fast leaving me. I saw an advertisement of Swamp-Root and wrote asking for advice. I began the use of the medicine and noted a decided Im provement after taking Swamp-Root only a short time. I continued its use and am thankful to say that I am entirely cured and strong. In order to be very sure about this. I had a doctor examine some of. my water to day and he pronounced It all right and ln splendid condition. I know that your Swamp-Root Is purely vegetable and does not contain any harm ful drugs. Thanking you for my com plete recover- and recommending Swamp Root to all sufferers. I am. Very truly yours. I. C. RICHARDSON. You may have a sample bottle of this wonderful remedy. Dr. Kilmer's Swamp Root sent absolutely free by mall, also a book telling all about Swamp-Root. IC you are already convinced that Swamp Root Is what you need, you can purchase the regular fifty-cent and one-dcllar size bottles at the drugstore everywhere. Don't make any mistake, but remember the name. Swamp-Root. Dr. Kilmer's Swamp-Root, and the address. Bingham ton. N. Y.. on every bottle. shall Inure in whole or In part to the benefit of any person except himself. The application to purchase the land must be made In good faith, for the ex clusive use and benefit of the applicant. He must not be acting as the agent or hireling of another to obtain the land for someone besides himself. In other words, the law does not permit land to be taken under this statute by a mere dummy; by one who. ln effect, sells his right to enter such land: sells the priv ilege of purchase which the statute con fers upon him and allows his name to be used for a consideration to acquire the title, for the purpose of immediately transferring the same to some other per son, and under a direct or Indirect agree ment or understanding that such is the purpose for which the entry is made. In order to effect the object anl carry out the policy of the law. the statute requires the applicant to make oath that he has not. directly or Indirectly, made any agreement or contract ln any way or manner, by which the title he might acquire shall Inure in whole or In part to the benefit of any person except him self: and one who willfully swears falsely In this matter commits perjury, and anyone who Induces the applicant to take such oath, knowing that when he takes It. the applicant will commit per jury, is guilty of subornation of per jury. Agreement 3Iay Be Implied. Now the agreement here referred to need not be in writing; it need not be one which can be enforced ln a court or law of equity: it is sufficient that In some way the minds of the applicant and some other person have met upon the proposition that when title to the land is acquired it shall be conveyed to such person, that it was definitely understood between the applicant and such person that the title should be conveyed for a consideration agreed upon, and that the applicant Is really to enter the land for the benefit and use of another. The offense in this case consists In two or more persons conspiring to advise and encourage one or more persons to commit the offense of perjury by taking their oaths respectively before a com petent officer and person in cases in which a law of the United States au thorized an oath to be administered, that each of said persons would declare and depose truly that certain declarations and depositions by him to be subscribed were true, and by thereupon, contrary to such oath, knowingly and corruptly stat ing and subscribing material matters con tained in such declaration that he did not believe to be true. The conspiracy need not be successful. It may fall short of the actual commission of the crime. Merely agreeing or combining together to advise, induce and encourage tne com1 mission of the oerlurv is sufficient to constitute the offense of conspiracy with out the perjury being ln fact committed, if any one of the parties has taken a step toward advising. Inducing and en couraging its commission. Was Merely a Conspiracy. The questions then for you to determine upon the evidence and under the law. as given you are, first. Did the defend ants or two of them, enter Into an agree ment or combination to induce or pro cure persons to enter the lands or some part of the lands referred to In the in dictment as timber lands, after having first come to an agreement or under standine with such Dersons that thei would convey the title which they might I acquire to Williamson and Van Gesner or to either of them? And. second. Did the defendants, or two of them, contem I plate or intend that the persons, or some I one of the persons whom they might i procure or induce to make such entries. should willfully and deliberately. In mak ing application tor sucn iana. swear falsely, that the application was not made on speculation, but In good faith, to ap propriate it to the exclusive use and benefit of the applicant: and that they had not, directly or Indirectly, made any agreement or contract, in any way or manner, by which the title to be acquired from the United States should inure, in whole or ln part, to the benefit of any person other than the applicant? If you find from the evidence, beyond all reasonable doubt, that both of these questions should be answered in the af firmative, and further find; beyond all reasonable doubt, that some one of the oovert acts alleged In the indictment, was performed for the purpose of effecting the object of the conspiracy, charged in the Indictment, then it will be your duty to render a verdict of guilty, as against such of the defendants as you may find entered Into and formed such, conspiracy. Joint Assent Must Be Inferred. In order to establish a conspiracy evidence must be produced from which fConduded on Haste IO MINISTER'S TRIAL Coffee Hit Him Hard, Indeed. A minister ot the gospel writes" about Postum: "I was for years a sufferer from headaches: Dometimes they were so vio lent that groaning In agony I would pace the floor or garden holding my throbbing head for relief. "I tried all sorts of remedies known to the allopathic and homeopathic schools, sometimes T thought It was caused by the stomach or biliousness and again I would suspect It was purely nervousness and treated myself accordingly, but nothing ever gave me permanent relief. Having to appear before the public nearly every night. It was sometimes almost Impossi ble for me to fulfill my engagements. Fi nally I came to suspect that the use of tea and coffee had something to do with my disorder and abruptly discontinued the use ot both and took on Postum for a trial. "From that happy hour I commenced to mend; gradually I got better and bet ter, and now I do not have a headache once -In six months and all my other troubles are gone. too. I am now using Postum exclusively and want no better beverage. "I know of others who have been bene fited jy the use of Postum In place of coffee. A friend of mine hare In Key West, a hardware merchant, suffered for years with stomach and other troubles while he was using coffee; finally he quit and began us4ng Postum and got well. He Is devoted to Postum. and when worn and weary 'with business cares takes a cup ot It piping hot and In a short time feels rested and nourished. "Some I know have become prejudiced against Postum because careless or Igno rant cooks tried to make It as they would, coffee, and will not allow it to bell full 15 minutes, but when they, try it again, well boHed. U says. for It is as deHcieug and snappy as the mttd smooth, high grade Java;"' Name given by Postwa Co., Battle Creek. Xlck. 1 Oct the Httle book "Tiw JUwd to Wi vUte' In aCBVrff t o 1 )