I
10
THE 3EORXIXG OREGOXIAN, THURSDAY, JTJ3TE 22, 1905.
ATTORNEYS OUTLINE AIMS OF PROSECUTION AND DEFENSE
(Continued From First Pge.) I y"'i tiiti J
He contended that indictment for perjury
and of a plea of guilty was a bar to
testimony.
Mr. Heney argued that a plea of guilty
without sentence was subject at any time
lo a reversal.
Tanner Allowed to Testify.
Judge DeHaven held that a judgment
was necessary to bar one convicted of
perjury from testifying, and overruled the
objections. Mr. Heney opened the case
with his statement in which he outlined
the Government's contention. He stated
that the allegation in the indictment that
Senator Mitchell had accepted fees from
Frederick A. Kribs was the beginning and
the end of the offense charged. Realizing
that a serious offense was charged, the
Government would not ask the Jury to
Teturn a verdict of guilty unless it was
proven beyond a reasonable doubt that
the defendant had knowingly done the
things charged in the Indictment.
The Government would show that tne
defendant had entered into an agreement
with Kribs and Tanner to expedite claims
for the timber-dealer and that various
payments of money had been made. That
he had talked with Kribs about the mat
ter and sent him to Tanner to arrange
the financial details of the proposition.
Mr. Heney also promised to show for
the purpose of evidencing the knowledge
of the defendant, that similar agreements
had been made with Benson of California
in October, 1801, in which Benson agreed
to pay 51500 for expediting claims.
Cases would be shown in which Mitchell
had appeared before the Department of
Commerce and Labor for the Jung Wan
Company asking the department to re
frain from indiscriminate arrests of
Chinamen in Portland, for which service
he received 5300. He had been told by
Tanner he would get a big fee in the
event of his efforts being successful.
Besides this, the government would
show, said Mr. Heney, that Senator
Mitchell had come to Portland In Decem
ber, 1901. and had asked to go before the
Grand Jury and at that time had testi
fied that ho had never done business for
Kribs. He had upbraided Tanner for
keeping the books as he had, and had
urged that a new set be made.
Mr. Heney then told the history of the
partnership agreement and the manner
In which it had been prepared and alleged
that the government would prove by the
testimony of Judge Tanner and of his
6on that the agreement had been writ
ten during the time the Senator was In
Portland last "Winter.
Judge Bennett presented the ride of the
defense. He maintained that if the Sen
ator had worked before the departments
for money it was in cases which" were
not effected by his office as Senator.
The fact charged was wrong simply be
cause It was contrary to statute and not
because of Inherent unlawfulness.
The speaker then went back over the
history of the Senator and told of his
arrival in Oregon and of his life in the
state. He had occupied a very exalted
position In National life and if he had
been the grafter that Mr. Heney had
painted him he would have been fabu
lously rich by this time. Instead of this
he was now a poor man and dependent
upon his friends for his defense in the
trial now being prosecuted. If It were
possible that the firm had done things
contrary to the law, or that Senator
Mitchell had done the things alleged, he
had done them unknowingly and without
thought of gain.
He stated that the defendant would
be 70 years of age today, that he was an
old man. broken in health, in mind and
in body. If the prosecution was-able to
show anything wrong that he had done
It would be nothing more ttatjci the
changing of the contract, which was ad
mitted by the. defense.
Mr. Bennett closed his presentation at
11:30 o'clock, and after the court had ex
cluded all of the witnesses from the room
Frederick A. Kribs was called by the
prosecution as its Jlrst witness.
Kribs told of his agreement made with
Mitchell and Tanner by which he was to
pay for the expediting of 40 claims of
timber land.
At the afternoon session Kribs resumed
the stand and told of having made an
agreement with Tanner about the middle
of February, 1902. He agreed to pay
51000 for having ten claims passed to
patent, 5500 down and 5500 when the
patents Issued. The witness identified
the list of claims in a letter to Mitchell,
and also the check of 5500 given In first
payment. He next identities a check for
51000 given as the last payment for pass
ing the claims In both lists to patent.
He had made another agreement with
Mitchell & Tanner in September, 1902.
for the expedition of a list of claims in the
forest reserve, agreeing to pay 51000 for
the services 'rendered under the same
provisions as the other two had carried.
He Identified a check for 5500 given as
first payment under this agreement.
On cross-examination by Senator Thurs
ton. Mr. Kribs stated thnt the conversa
tion he had had when presented to the
Senator by -Mr. Tanner, at which time
he had discussed the expediting of his
claims and had been referred to Mr. Tan
ner as to the financial terms of the agree
ment, had been the only time he had dis
cussed the matter with the defendant.
The witness Mated that he had been
called upon by Mr. Burns, who had told
him it would be best for him to tell the
truth about his connection with the kind
frauds, but that he had never been threat
ened with indictment. Neither had he re
ceived any promises of Immunity, nor
had any one connected with the Govern
ment told him that they were after big
ger game than he. Mr. Kribs was ex
cused at 3:15, and Judge Tanner was
called.
Judge Tanner stated that he had en
tered Into partnership with Mitchell In
lt91. which partnership had continued un
til the recent trouble. The first partner
ship agreement had befcn made In Febru
ary. 189L There was another agreement
of March S. 1901. upon which he identified
the signature of himself and Mitchell.
The witness had known Kribs since Oc
tober, 1901, when he had done timber
land business for him, and had agreed to
help in the expedition of his claims for
51000. Senator Mitchell had been in the
city, and Mr. Tannor had introduced
Kribs to him at the office.
The witness identified the day book of
the firm, showing the entry relating to
the Kribs agreement, and written in the
handwriting of Harry C. Robertson. He
then identified the check for 5500 paid as
a retainer and formerly identified by
Kribs.
After Judge Tanner had explained the
manner of handling the firm accounts by
which he had deposited the half of the
net proceeds to the account of Senator
Mitchell as trustee, the court adjourned
until this morning at 10 o'clock.
FULL BEPOKT OP THE TRIAL
Stenographic Account of the Arjrn-
menLs and Testimony.
The stenographic report of. the opening
statements, arguments and testimony of
the second day of the Mitchell trial fol
lows: Mr. Heney's Statement.
Mr. Heney If your Honor pleases. Gen
tlemen of the Jury: It becomes my duty
to outline to you at this time what the
- ifoue Is that you are to try in this case,
and briefly what the evidence is that the
Government expects to produce In sup
port of its contentions.
The Indictment in this case charges
John H. Mitchell with having received
fees for services performed before Gen
eral Land Office or Department of the
Interior during the time that he was a
United States Senator from the State of
Oregon, and that those fees were paid to
him for twrvlces to be performed in mat
ters in which the United States was in
terested. Now, .that is the beginning and
the end of this offense: that John H,
Mitchell while, a United States Senator
received fees for services before a De
partment of the United States in which
the United States had an Interest.
The statute under which this indictment
is drawn provides:
"That no Senator, Representative or
Delegate after his election and during
Ms continuance in omce. ana no neaa oi
a department or other officer or clerk in
the employ of the Government shall re
ceive or agree to receive any compensa
. tlon whatever, directly or indirectly;
and I call your attention to - that lan-
guoee now, that he . must not receive it
HARRY MURPHY'S PEN
ii im hi ' mwrAiwvf iZMtrjmmr v uvu. - i
I .......
either directly or indirectly the object
of the Legislators evidently being to pre
vent a Senator or Congressman from en
tering into a law partnership and having
the firm employed so that the money
would be paid to the firm and he thus
indirectly receive his compensation for
services to be performed either by him
self or his partner before a department.
And the statute proceeds and says "that
he shall not receive or agree to receive
any compensation whatever, directly or
indirectly, for any services rendered or
to be rendered to any pern either by
himself or by another." for instance, his
partner: he must not receive either di
rectly or indirectly for services to be per
formed by himself or for services to be
performed by another "in relation to any
proceeding, contract, claim, controversy.
cnarge. accusation, arrest or otner mat
viimsi actuaauuii, aiiri't. ui uuicr inni-
tor or thing in which the United States Is
a party, or directly or indirectly interest-
cd before any department, court martial.
bureau, officer or any civil, military or
naval commission whatever. Every ?r-
son offending against this section shall
be deemed guilty ot a misdemeanor and
shall be Imprisoned not more than two
years and fined not more than 510.000. and
shall, moreover, by conviction therefor
bo rendered forever thereafter incapable
of holding any office of honor, trust or
profit under the Government of the Unit
ed States."
That is a law passed by the Congress
of the United States. Including the Sen
ate of the United States, and fixing as a
part of the. penalty that any person who
violates It shall ever thereafter be dis
qualified to hold any office of honor, trust
or profit under the Government of the
United States: indicating the conviction
of the Senators and Congressmen of the
United States that an act of that sort
must be prohibited in such a way as is
possible to prevent it, and that it is a
serious offense, and not a mere technical
one. In other words, the theory Is. and
in this case you are to try the question
as to whether John H. Mitchell used a
public office for private gain, to put it
tersely.
The Government realizes that It is a
serious matter to the defendant, and that
therefore with this penalty attached you
ought not to be asked to find a verdict
of guilty in this case unless the Govern
ment Is able to prove beyond a reasonable '
doubt that John H. Mitchell did receive
fees for services performed before the de-
partment in a matter in which the Unit-
ed States was interested; and 1 will go
one step further and say that we will
not ask a verdict at the hands of this
Jury unless we prove to you conclusively
tnat ne did it with rail knowledge of the
fact that he was receiving these fees and
witn run Knowledge of the fact that ha
was violating the law when he did It.
What He Hopes to Prove.
.. . ., . ,
V bat the Government proposes to prove
In this case is that John H. Mitchell
was elected to the Senate of the United
ouiiue uuui urc oiaie ui urcgon in ino
month of February. 1501. and that bo
qualified as a United States Senator In
March. 1901, and entered upon the per
formance of his duties and has continued
to exercise that office ever since. That
in October, 1901. on the lith day. John H.
Mitchell returned to the Cltv of Portland.
and on that very day. the lath of October, t tional Bank; that on or about the 2d or
1901, an agreement was entered Into be- 3d day of November two checks were
tween Fred A. Kribs and A. H. Tanner, drawn to Tanner for the net proceeds of
the law partner of John H. Mitchell, by ;the month for the firm and that this was
which it was agreed that the firm of, the regular custom of dividing it. and
Mitchell & Tanner was to take charge ot that one check was deposited in the Mer
the ex-pedltlng of 40 Umber claims that ! chants National Bank which was a check
were -then pending for patent In the Land , upon the firm account, payable to A. H.
Office at Washington, and that were un- Tanner, rfnd then indorsed by Tanner and
dr Investigation at the time for fraud i deposited to the credit of John H. Mitchell,
and upon a charge of fraud. That It was trustee; and we will show you that the
agreed by Kribs that he would pay 55CO account of John H. Mitchell, trustee, was
casn retainer ana sw more wnen tne
natents wer Issued to those 40 claims.
That that agreement was made with
i anncr. Tnat on tne 5th day of October.
1901, or about that date. Kribs went to
PORTRAITS OF SENATOR MITCHELL AT THE SECOND DAY OF
the office of Mitchell & Tanner and was
intr.)duccd by Tanner to Mitchell and had
a talk with Mitchell In regard to those
claims, and announced to him that he
had made this agreement with Tanner,
and that Mitchell told him to talk all de
tails in regard to fees and in regard to
those cases with Tanner. That he had
another .conversation within a few days
with Mitchell in his office In this city, in
which Mitchell stated that he had written
a letter or would write a letter to the
Conynlssloner of the General Land Of
fice in regard to those claims, and that
he would sec the Commissioner when he
reached there. We propose to show you
that letter written from San Francisco
or from Portland on the 22d day of Octo
ber. 4901. to the Commissioner urging the ;
J expediting of the claims, and stating that ,
i jujicncn wouui isKc me mailer up wnen
he got there with Hermann personally.
, That thereafter Mitchell returned to i
j "Washington and uied his best efforts by 1
! personally seeing the Commissioner and j
I fey writing letters to him to expedite these
claims: that he received letters from
I Tanner in which Tanner referred to the j
! fees and referred to the amount due upon
; them. That Ifi IMC on February 13,
Kribs went to the office or Mitchell &.
Tanner and made another agreement to
employ the firm of Mitchell &z Tanner to
put tnrougn aoout m more craims mat
were then pending In the department at
Washington and which were being Inves
tigated for fraud, which are known as the
Putcr claims, he being one of the appli
cants for one of those timber claims.
The first 0 were all timber claims, and
thce 30 were timber claims. That Kribs
then agreed with Tanner that he would
jay a fee of 5109X 5500 down and 55(0
after patents Issued, for the services of
Mitchell &. Tanner In expediting those
claims to patent, and that Kribs did pay
the 5500 on the 13th of February, 1S02.
That thereupon Tanner wrote to Mitchell
and explained to Mitchell that the firm
bad been employed and that Kriba had
a creed to pav this 51000. 5500 of which was
paid down. 550) to be paid when patent
was Issued, and that Mitchell thereupon
proceeded to do all he could to expedite
those claims by seeing Hermann In per
son and by writing letters to Hermann as
Commissioner of the General Land Office.
That Mitchell Was Paid.
That on the October payment of 5300 the
i fees were divided about the 1st or 2d or
3d of November; that Mitchell and Tanner
immediately after Mitchell's election to
. office entered into a written agreement
i of partnership by which it was agreed
! that for all services performed oy antcneu
before anv of the departments In Wash
lngton or In Congress that he (Mitchell)
should receive and retain the whole of
the fee; that the balance of the agree
ment was that for all business taken In
acre ay uie unu mc itru w w ui-
i vlded equally between them, and that the
. division was to be made at the end of
i each month by deducting the office ex-
i nenees for the month and equally aivio-
Ing She balance. We propose to show to
you that at the beginning of the month
of November. 1S01, after a payment of
SSOO had been made by Kribs on October
16. 1901. which was made by check to
Mitchell & Tanner, that it was deposited
, m tVi fi-m' rrAit in Vi rrohnt v
, his own personal account. That at the
same time a check for a similar amount
less any money Tanner may have re
tained tor cash that came In which he
j charged to himself during the month, was
deposited to Tanner's credit in the First
National Bank. That under this agree
ment of February IX 1&J2. for the second !
batch of claims, called the Puter claims,
and after Tanner had written to Mitchell
about it, and as to what the fee was to
be that on March 2 or 3 ot 102. as usual,
the checks were drawn to Tanner for
the net proceeds of the month, and one
of them was deposited to the credit of
John H. Mitchell, trustee In he Merchants
National Bank. That thereafter. In May
1502. Mitchell wrote to Tanner and asked
him to send him a copy of the firm books
showing all moneys received, for what
they were received and from whom re
ceived, and to nend it on the first of the
following month, which would be the first
of June, 1M2. That a copy of the day
book of Mitchell & Tanner was made oy
Miss Spencer, an employe in the office at
the time, who kept the books, and who did
stenographic work; that that copy was
sent to Mitchell on June 3. ISO!; that that
copy contained, as the book contains, the
entry of the agreement with Kribs for the
payment of the 5500 cash retainer and
5500 after patent Issued for the claim?
known na the S. A. D. Puter claims; that
the entry of the agreement made In Oc
tober. 1901. was made In the books before
Mitchell left here at the time of the agree
ment Itself, on October IS. 1W1. Following
the receipt of this copy of the books,
acknowledged by a letter from Mitchell
that It had been received on June 9. fol
lowing that, these claims. 70 of them did
go to patent. That they had gone to
patent as a matter of fact, notice was
received by Mitchell on May 17. 1S02; that
he wired on May 21. 1SQ2. that he had
succeeded In getting them to patent, and
that on June IX I think is the date, of
1902, Kribs paid 51001 by check; that that
51000 was the remaining 5500 due on the
first agreement and the remaining 5500
due on the second agreement, both. agree
ments having been completed now by the
patents having Issued for the 70 claims.
That the receipt of this 51000 was entered
In the books -of Mitchell & Tanner. That
Tanner wrote Mitchell that the 51000 was
due when the patents issued, and to
hurry them up: that he wrote Mitchell
wnen tne iiv.Q was paw. and tnat on tne
2d or 3d of the following month the di
vision was made and one-half was placed
to the credit of John H. Mitchell, trusted.
That He Had Knowledge.
. That in September following. 1502. Kribs
made another agreement with the firm of
Mitchell &. Tanner, agreeing to pay them
5500 cash and 5500 after the selections were
approved for patent as to some lieu selec
tions In the State of Oregon. That he
paid that 5500 down, and that agreement
was entered in the books: that Tanner
wrote Mitchell about it. and told him
what to do In regard to getting the mat
ter expedited, and that Mitchell there
after wrote letters to the Commissioner
and saw the Commissioner personally and
did all that he could to expedite that mat
ter. That those were slow in going to
patent, but that some of them finally
went to patent, and payment was made
In October. 1S04. by another check of 5200
as a partial payment on account of bal
ance due upon those claims for securing
patent, and that In each Instance these
checks were placed to the credit of Mitch
ell &. Tanner In the Merchants National
Bank, at the time of their receipt, in
dorsed by Tanner, and on the 2d or 3d of
the following month the first checks were
drawn for tne net proceeds of the first
business and a check was deposited to the
credit of John H. Mitchell. Trustee. In
the Merchants National Bank: for that
account, and that bank account of John
H.. Mitchell, trustee, was constantly
checked unon bv him.
We propose to -show further, for the
purpose-of showing that this matter was
done with knowledge on the part of John
H. Mitchell, that a similar agreement for
a payment of fees to the firm was made.
witn jonn A. Benson, or California, witn
regard to ilea selection wcica he naa
i
THE FORMER'S TRIAL-
pending In the Land Office. That that
agreement was made In October. 1901.
That Benson agreed to pay the sum of
5i to the nrm of Mitchell &. Tanner tor
procuring and expediting these claims to
patent. That Tanner wrote Mitchell and
explained to him fully 'that Benson was
to pay the firm the sum ot 51500 for the
expediting of those claims and that Mitch
ell thereupon interested himself in the
expediting of those clams and filed let
ters with the General -Land Office, urg
ing that thev be pushed to patent, and
that at the suggestion of Benson. Tanner
suggested to Mitchell that he should rep
resent that these claims were owned by
some Oregon citizens, because It might
bring some adverse action or Interfere
In- some way with securing the expedition
of the patvnt if he permitted It to be
known that he represented John A. Ben
son and that John A. Benson was inter
ested In these claims.
We proposeto show further for the pur
pose of showing knowledge of the fact
that he was receiving a portion of these.
Kribs fees, that the firm of Mitchell &
Tanner was employed by W. B. Burke. In
May. 1902. in regard to some desert-land
selections under the Carey act In this
state, and that a fee of 5500 was paid to
the firm upon that account upon May 29.
1902. and that Tanner wrote Mitchell fully
about the matter, and that Mitchell per
formed services In the department in re
gard to IU
Other Illegal Fees.
And further to show knowledge on the
part of Mitchell, we propose to prove that
a tee of 5250 retainer and 5250 in case of
success was agreed upon between tho
Cook's Inlet Coal Field Company and the
firm df Mitchell & Tanner, and that Tan
ner wrote Mitchell as to that transaction.
And further to show knowledge on tho
part of Mitchell, we propose to prove
that the firm of Mitchell & Tanner was
employed by the Shung Wan Company, a
Chinese .benevolent society of this city,
and that a fee of 5350 was paid on Decem
ber 15. 190X for Mitchell to appear before
the Department of Commerce and Labor
to restrain the Chinese Inspector in Port,
land from Indiscriminate arrest of. Chi
namen and deporting them, and that
Mitchell was advised of that fact and
that he did appear there and make an
oral argument in thnt behalf, and that a
brief was filed there signed by Tanner,
and that when the brief went on. 'tho
name of the attorneys for the petitioner
was not written on the copy that was
sent, and that Mitchell became alarmed
for fear Tanner had Inadvertently signed
the firm name, and wired him to with
draw the brief, if he had done so. "be
cause, you know. I have no right to ap
pear before the department."
We propose to show further for the pur
pose of proving knowledge on the part
of John H. Mitchell that he was receiving
a portion of these Kribs fees charged in
the Indictment, that the firm of Mitchell
& Tanner was employed by Lu N. Sue
and was paid a fee of 550 for Mitchell to
appear oexore tne .Department of Com
merce and Labor to have the wife and
daughter of Lu Sue permitted to land in
this country, and that this fee was paid
as a retainer In the matter of the appeal
from the inspector's decision at Port
Townsend. and that the. agreement was
that in case they succeeded in getting a
decision allowing them to land, they were
to get 5150 more, and that this Informa
tion was given to Mitchell at the time
by Tanner, and that Mitchell appeared In
that matter before the department.
And further, to show knowledge on
the part of Mitchell that he was re
ceiving a portion of the Kribs fee. we
propose to prove1: That the firm of
Mitchell & Tanner was employed by
the Booth-Kelly Lumber Company in
. November, 1Sv2. In the matter of the ap
plication to select lieu lands In the
Cascade forest reserve In behalf of the
California & Oregon Land Company,
and that Tanner wrote Xltckeli ls're-
-
gard to It and Informed him that if perjury la that matter, which Robert
tney could win that case they could I son read about in the newspapers be-
cnarge as tney contemplated a Dig; tee i
for services in the matter, and tnat at
that time I propose- to prove that
Mitchell was a stockholder himself. In
the Booth-Kellr Lumber Company, that
he did perform those services before
the department under tnis agreement
for a fee.
Now there are numerous smnll cases.
some of which we may prove and we
may not go Into them, according- to
the time It takes to try the case.
That Agreement AVas Changed.
The Government Dronoses to prove
further that John H. Mitchell came to
Portland In December, 1904, while the
grand Jury was In session and insisted
on going before the grand jury as a
witness: that he did appear there: tnat
he testified that he never did any .busi
ness with Frederick A. Kribs: that he
had no knowledge as to whether the
firm of Mitchell it Tanner ever did any
Business with Frederick A. Kribs in
regard to land before the department
or not. Prior to trolnsr before tne trrand
Jury, Mitchell on his way wired Tan
ner 10 meet nim; tnat Tanner dia
meet him at some station outside of
Portland; that Mitchell then questioned
Tanner In regard to what the books
might show in relation to Kribs em
ployment of the firm: that after Mitch
ell appeared before the grand jury he
nau conversations wun xanner in wnicn
he upbraided Tanner for so keeping
the books and in which Tanner told him
that if he wanted them kept different
ly he should have told him so because
tne partnership agreement provided for
such a division of the fees; that Mltcn-
ell then examined the books and pre
tended surprise at finding those entries
in them and urged tnat a new set of
"books be written; that Tanner pointed
out that it would not be safe because
they had hud a number of different
bookkeepers whom the Government
might secure as witnesses: that Mitchell
wanted tnen to nave the books de
stroyed and that Tanner suggested that
that would do no good, as tne original
agreement provided for a division of
the fees: that Mitchell then suggested
that the original agreement be changed
in that respect and another one sunsti
tuted for it and appealed to Tanner
to stand bv him and that Tanner agreed
so to do and that thereupon Tanner
prepared an agreement identical Jn
words with tne first agreement, except
as to the clause providing1 for a divi
sion of the fees for 3er7ice3 before
the departments in Washington: that
that clause was so changed later that
It read tnat all fees, received for serv
ices by either Tanner or Mitchell before
the department In Washington should
go entirely to Tanner and that Mitchell
should not be called upon to perform
any services before the department
other than such as he was lawfully en
titled to perform for a constituent
without pay: that Tanner went before
-fthe grand Jury and produced tnat
agreement, which was dated me same
as the original true agreement In
March. 1901. signed by Mitchell here
before ho returned to Washington In
December. 1S01: that agreement was
written on Kdinample Bond paper and
was run oft on a typewriter with a
black ribbon. We will prove that the
firm of MItcneU &. Tanner never pur
chased or used Edlnample Bond paper
prior to 1901: tnat the firm of Mitchell
& Tanner never had a black ribbon
upon its typewriter prior to about four
or five months before this last agree
ment was run off; that the black rib
bon was then placed thereon By Mr.
Robertson, the private secretary of
Senator Mitchell, coming to Portland
and using- a black- ribbon; that Mitchell
nHlczri Tanner when he produced this
agreement for him to sign after that
rouversatlon, who typewrote it. and
that Tanner told him his son did; that
Mitchell asked him If the son couiu De
relied upon to testify that it was not
fvnewr ttn ov mm: tnai ne saia ye.
that he would do anything he told
him to do: that the son appeared beforo
tho trrand Jury and testified that it was
not written bv him: that as a matter
of fact we will prove it was written
hv him. and we will prove It by the
son himself and by the father: that
Mitchell returned to Washington and
.hat ttrhon thl indictment was returned
on February 1. 1905. the following day,
Fhriuirv 2. 1905. Mitchell was inter
viewed by Mr. Breckens for the Jour
nal and by Mr. Brown, for The Orego
nlan. and that he stated to each of
those gentlemen that he had never
.tnm anv business with Kribs: that he
did not believe the firm of Tanner &
Mitchell had ever done any business for
Kribs. and tnat he haa never receiver
anv of the fees from Kribs, if any were
naid. because the partnersnip agree
ment between him and Tanner pro-t-Ma.i
that Tanner was to receive all
r the. fees for services before any of
the departments In Washington: that
thereafter the- private secretary of
John H. Mitchell as Senator. Mr. Rob
ertson, was subpenaeu in wasningion
to appear nece ueium mo b""u
that nftnr Mr. Robertson was sub-
nnn h went to Senator Mitchell anl
informed him of the fact: that Senator
Mitchell then read to mm a xeiegram.
nitmnrtinp tn come from Tanner, to the
effect that Tanner had appeared be
fore the grand Jury ana tesunea inai
the agremcnt tnat was maae m Jiarcu,
19.11 nrovlde.i that Tanner was to re
ceive all fees for services before the de
partment. And we propose 10 prove iur
ihor that -a-lipn Tanner & Mltcnell
made the agreement here In December
to change the agreement and to stand
by It, that Tanner agreed further that
lis would see to It that tae Government
did not get hold of those books if he
h-.i to .iMtrov them: he wanted to
know if Robertson could be depended
upon (because Robertson had type
writt.n tn original agreement In
1901). and that Mitchell staled: "I will
fw nnhArnnn. or woras 10 mill ei.cvi-i
that after Robertson was suDpenaeu.
when Mitchell read him this telegram,
Robertson sat there without replying
and Mitchell then offered In explana
tion of this telegt-am. tnis siaieraem
"Tanner and I fixed that up when I
was out there. We thought that any
means was Justifiable to defeat those
s. o b.s who are after us; that
Mitchell then told Robertson that he
must be very careful how he testified
before the grand Jury: that the Gov
ernment would endeavor to get nim to
testify differently from Tanner and
from what Mitchell proposed to say.
and that he must remember that a3 to
tint agreement of Marca. 19-11. taat
Tanner was to get all the foes, and
must so testify.
The Tanner Letter.
We propose to prove that on the following-
day. or the same day. I forget
which It was. that Mitchell sent to
Robertson by Max Pracht, who was a
special agent In the Land Department,
who had been operating in Oregon, a.
sealed letter addressed to Tanner and
to be delivered to Tanner, we propose
to show, that befjre tbat letter was
written. Tanner had wired Mitchell and
informed him that he and his son were
thrsat;nedwith Indictment for perjury
for their testimony In relation to the
contract of 1901. and asking him how
Robertson would stand, and that
Mitchell replied by telegram saying
that he was sending a letter by Rob
ertson and to watch Robertson s ar
rival and to be sure to meet Robertson
there nt the train or some wnere up the
road: that this letter, which was deliv
ered hy Max Pracht to Robertson is
entirely in the handwriting- of Mitch
ell: that In this letter Mitchell warru
Tanner what It is he Is to testify to In
relation to the contract and not to be
come frightened but to send the books
on to Washington, and tnat ne Is to
remember that.that agreement provides
that Tanner is to get all of the fees
and something about having talked
with Harry, (meaning Harry Robert
eon) in regard to the matter; and
Robertson, we will prove, came direct
from the train to the grand Jury room
without having seen Tanner or any
representative of toe Government and
appeared In the gtand Jury room and
testified that he wrote the original
rnent of 190L We will prove by
Robertson that he produced that letter
there under advice ot tne uniteu saaies
Atmrnev: that he was bound to sur
render it upon, belns requested for it
nnd we will produce that letter In evi
dence before this jury; that thereafter
when Robertson returned to Washing
ton, Mltcnell aeraanaea to Know wnat
he had testified to. And we will show
further that the day before Robert
sen's arrival, an indictment for per
jury way returned against Tanner, for
tore reacting; Portland.
I think. Kentlemen. thnt I have fairly
and fully outlined the Government's
case.
Judge Bennett's Opening Statement.
Judge Bennett's opening statement:
May It piease the court and the gentle
men of the Jury, It now becomes ray duty,
on "Behalf of the defendant, to present to .
you, in so far as I may, the defendant's
side of this contention.
In the first place. In relation to the
statute to which Mr. Heney has called
your 'attention, and which he claims Is
aimed against a public officer making
money out of the performance of his
public duties. I differ with Mr. Heney
on that proposition. The appearing be
fore a department In any matter in which
private persons are Interested Is no part
of the public duty of any United States
Senator or Representative no part of his
official duty. He Is not paid by the Gov
ernment for doing that. He cannot be
required by the Government or any priv
ate party to do It and It Is no part of
his official duty. It is a voluntary thing,
which is done outside of his official duty.
If it is done at all, by Members of Con
gress and United States Senators, for
which they are not paid by the Govern
ment. It Is no duty thnt they owe to. the Gov
ernment and which the Government has
anything whatever to do with. The ob
ject of this law. as I understand it. is
to prevent possible Influence upon th'e
departments or the officers of the depart
ments in matters where the United
States Is Interested by reason of the offi
cial position of the person receiving the
pay. In other words, It Is feared that a
Member of Congress who was receiving
pay in a matter, and therefore perhaps
exercising extraordinary zeal in that mat
ter, where the Government was Interest
ed, might have an influence with the
heads ot the department and the officers
of the department that an outsider would
not have, by reason of the fact that he
was a member of Congress or of the
United States Senate. And it was xo
prevent this possible Influence that this
law was passed. And official duty has
nothing to do with it. It is not any part,
as I said before, of the official duty of
Senators or Representatives at all. and
they are not paid by the Government for
aomg tnese things. And It Is not be
cause tne tnmg in ltseir is wrong that It
Is prohibited, because there would be no
wrong In a member of Congress present
ing an honest claim falrlr and nronerlv
to the department: but It Is because there
Is danger of wrong growing out of It
that It Is prohibited and the law Is a
very proper one for that purpose.
Offense Is Technical.
not out of the fact that It Is. In itself
wrong, because It Is not a natural wrong
iiKe stealing or anytning of that kind
It Is a wrong simply because It Is pro
hibited by statute for a member of Con
gress or Senator to do these things. Ha
may sun appear m tne supreme Court
although the evil Is Just as great there
as It would be before the departments m
all matters In which the Government la
Interested, although there will be. the
same danger of Influence tn that case as
there is In a case of this kind. But the
law has seen fit to prohibit the appear
ing in tnis Kina or cases, and because IE
Is prohibited It is wrong, and not other
wise. Therefore the Importance In tha
matter lays, not In the heinousness of
the offense, which is a technical offense
In Its nature, but it lays in the punish
ment, which is of such a serious charac
ter, as has been stated to you. that It In
volves Imprisonment, absolutely must In
volve Imprisonment and fine both, and In
addition to that It decrees the disquali
fying a man for all timer from ever hold
ing any office of trust or profit under the
United States. The Importance there
fore, of the matter lies, not In the nature
of the offense, which Is technical In its
character, but in the punishment which
follows a conviction of the offense.
Mr. Heney Pardon me. but there Is onet
statement there that I do not think ought
to go to the Jury that the punishment
must involve Imprisonment, I do not so
understand it.
The Court That Is a matter that 13 not!
material at this time.
Judge Bennett The statute, however
says. Tour Honor, that it Is both flne.andf
imprisonment.
Court Proceed. '
Senator's Long Service. "
Judge Bennett Of course I should not
have gone into this matter if the District
Attorney had- not seen fit to go Into it.
Now. gentlemen. In order that you may;
fully understand this matter. It Is neces
sary to go back somewhat, in my making:
of ray opening statement, to matters in
the history of the state, which will be de
veloped upon the trial.
It will appear that Senator Mitchell
came to this state, I think, along In 1S66.
or about that time, and he has resided in
the state ever since that time. He. soon
became prominent in politics and was
finally elected to the United States Sen
ate. Since this time he has served, I
think, In the United States Senate he has
been elected four or five different times,
and has served some 20 or 25 years In the
United States Senate. During that time,
of necessity, he was under the searchlight
of a political glare the glare of a political
searchlight, of course, all the time, and
made, necessarily, many bitter enemies as
well as very many warm friends. Dur
ing that time that he has been In the Uni
ted States Senate, he has occupied a very
prominent position in National affairs: he
has been upon many- Important commit
tees, and has been the chairman of some
of the most Important committees that
there were In the United States Senate.
His position there has been one of
greatest influence, and If he had been the
grafter that he Is painted to you by Mr.
Heney. he has had opportunities that he
could have been and would have been
fabulously rich at this time. He could
have made hundreds of thousands of dol
lars. In the position that he has occupied.
every year ln the UnUed States Senate,
n.1t instnrf nf.th.tt hlnr the easo h
But. instead of 'that being the case, ha
stands before you today, at the end of hl3
long service in public office, a poor man,
actually dependent upon his friends that
he may make a decent defense before you
in this trial.
Now. gentlemen, after having served in
the Senate of the United States, for a
good many years, there came a time
when the people saw fit. in their Judg
ment, to elect some one else to the posi
tion of United States Senator, and for
four years previous to 1901. Senator Mitch
ell was out of office. He was a private
citizen. He came back here and picked
up his practice he had been in the prac
tice of law before. Had been, a prom
inent attorney-at-law here before he was
elected to the United States Senate at all.
and had always maintained his practice
here had always maintained his practice
after he left here. When he went out of
the United States Senate, in 1S97, I think,
he came back here, as I have said, and
picked up his practice here, and continued
his relations with Mr. Tanner in the prac
tice of law here, making his llviinc by the
practice of his profession, and during that
time he and Mr. Tanner, probably at the
commencement of that time we don't
know about that had a written agree
ment between themselves ln which there
was a provision in relation to their differ
ent wdrk which they were to do, and the
compensation they were to have for It.
And because of Senator Mitchell's greater
experience and reputation, and the sup
posed value of his services, as I under
stand It. Senator Mitchell was to have
two-thirds of the receipts, and Mr. Tan
ner was to have one-third of the receipts
of the office.
Now. I may not be accurate about this
matter, but this Is just my understanding-,
and I think it will so turn out In the evi
dence. And there was a further provision
ln the contract that all matters before
the departments at Washington it wa3
supposed, because of his long experience
In Washington and his acquaintance and
all that sort of thing, that his services,
when he was out of the United States
Senate, would be especially valuable In
that matter and there was in the agree
ment a provision that Senator Mitchell
for services performed ln the departments
in Washington that he was to have all
of that. Now. this was at a time when
Senator Mitchell -was not a Senator at xill;
when he was out of office and had a per
fect right to make an agreement of that
kind the same as you or any one else, or
I or any one else would have had a per
fect right to appear before the depart
ments, and a perfect right to take pay
for appearing before the department.
Firm's Business Rearranged.
Now, they had this agreement. Bye-and-bye
at the end of four years, the
time came when the people saw fit to
elect Senator Mitchell again to repre
sent them in the United States Senate,
and he was elected again, tor tae" term