12
THE 3IORXING OREGOTAN, THURSDAY, JTJNE 22, 1905
JUDGE A. H. TANNER TESTIFIES AGAINST SENATOR MITCHELL
with you in those sex-eral lists of land
ujciiuuiu uui nave oecn presemea
here?
A. Who "were the owners?
Q. Who were lntorested financially
with you in the efforts to secure those
lands from the Government of the United
States?
Pillsbury's Were Interested.
A- In one of the lists was ex-Governor
Pillsbury, of Minnesota, on the start, and
shortly after that. John and Charles
Pillsbury, nephews, bought Interests, and
in another tract Charles A. Smith, and a
man named Johnson.
Sir. Heney Senator Thurston, pardon
me. I overlooked having- the witness
prove the execution of this paper, which
relates to the Pillsbury Interests In the
claims. I will do that now If you have
ao objection.
Q. (By Air. Heney.) I hand the wit
ness a document consisting of a number
of pages. Examine that and state whose
signature It bears.
A. It is my signature to this, wit
nessed before Albert H. Tanner.
Mr. Heney: I will have this marked
Xor identification.
Q. (Mr. Thurston resuming) Have
you testified to all interviews and con
versations you have had with Senator
Mitchell?
A. I have: I don't remember ever
speaking to him since the first of No
vember. Q. The first was on the lGth of Octo
ber, 1901?
A. Somewhere about that time.
Q. At Mr. Tanner's office?
A. Yes. sir.
Q. Was Tanner present at the time?
A. He took me in and introduced me
to Senator Mitchell and went out into
his own room.
Q. And you two were alone -when
that conversation took place?
A. Yes, sir.
Q. You have stated that you told
Senator Mitchell you had employed Mr.
Tanner to look after some land mat
ters? Was that the substance of the
conversation?
A. Yes.
Q. Tho next conversation took place,
if I remember correctly, about the
third day after that?
A. Well, it was two or three days a
very short time after.
Q. At the same office?
A. Yes.
Told Senator 31itchell.
Q. In that conversation vou again
told Senator Mitchell you had employed
Mr. Tanner to look after your land
matters, did you?
A. Yes, that is what it meant.
Q. Did you tell him how "much you
2iad agreed to pay?
A, Yes.
Q. And then Senator Mitchell de
clined to have any talk with you about
the mattor of payment, didn't he?
A. He referred me to Judge Tanner.
Q. Told you you must talk with
Tanner about any question of employ
ment or payment?
A. Yes, air.
Q. So that you had no agreement of
nny kind or character with Senator
Mitchell himself?
Objected to as calling- for a conclu
sion of the witness.
The Court: Ho has asked whether
he had anything personal. Tho purport
of the question is whether he ever per
sonally made any agreement with Sen
ator Mitchell in relation to It. I think
it Is proper.
(No answer was made to the ques
tion.) Q. Do you know where Senator
Mitchell was at tho time you gave the
check to Judge Tanner of February
asth, 1902?
A. I do not.
Q. Was he in the district of Oregon?
A. I don't know where he was.
Q. You did not see him?
A. Not that I remember.
Q. Do you know whore Senator
Mitchell was on Juno 14. 1902, when
you gave the 51000 check?
A. No, 1 do not.
Q. Was he in the district of Oregon?
A- I don't know where he was.
Q. Do you know where ho was on
September 20. 1902, when you gave the
check for $500?
A. No.
Q. Was he in the district of Oregon?
A. I don't know.
Q. Do you know where he was on Oc
tober 8. 1904? Whon you gave- the "check
lor $20)?
A. No.
Q. Was he in the district of Oregon?
A. I don't know.
Q. Mr. Kribs, are you under indictment
In this court?
A. No, sir.
Q. You have not been Indicted for any
anatters in connection with land matters
or others?
A. No. sir.
Q. Where is your office now?
A. 330 Chamber of Commerce, this city.
Q. What agents and representatives of
the Government have been frequently at
your office lately?
A. There have not been any there very
lately.
Q. How long ago?
A. There was an agent there some time
an reDruary, as I recollect.
Q. Did he secure from you a written
ictatement as to your testimony or the
acts of your transactions?
A. Ho dil some time thcrr-after.
Q. Do you know where that statement
t!s?
A. I suppose it Is in the possession of
the Government.
Q. Did you keep a copy of It?
A. I have a copy of it. yes.
Q. Can you produce it?
A. I think so, if I am given time to
Hook for It.
Xot Promised Immunity.
Q. I would like to ask you to look for
It and present It here at your earliest
convenience. When that statement was
obtained from you. or at anv other time,
what Inducements were held out to you
as to immunity from prosecution by any
one?
Q. Not my?
A. No.
Q, That wo.6 your voluntary statement?
A Yes.
Q. Have any such suggestions been
made to you since by any one?
A. Only such suggestions as I kind of
made myself in drawing it up. but I
never got a great deal of satisfaction.
Q. Then the suggestions as to immunity
from prosecution came from you?
A. BYes. sir.
Q. And you had talks on that subject
with the special agents of the Govern
ment? .A. Yes. some time after I had prac
tically made my statement.
Q At the time you made your state
ment, Mr. Kribs. was it not true that you
were being threatened by the special offi
cers of the Government with prosecution
and indictment?
A. Well, the most of the threats I ever
received came through the newspapers.
Q Were you not being throa toned?
A. There were not any of them mak
ing me any threats, but they were trving
to find out by asking questions and "on
thing ond another, to see If .they oould
get anv information out of me.
Q. They wanted to secure your evidence
lor the Government?
A. They wanted to find out what I
knew and I suppose If it was valuable
lht 1,s,.7vhat thov wanted to do with it.
Q, V ho were those mon?
A. The man that talked with me was
Mr. Burns.
Q Anybody else?
A. I talked with Mr. Heney.
Q. Do ycu know who Mr. Burns is?
A. es.
Q- Who is he?
A. He is in the Government Secret
Service Department.
Q- He has been out here investigat
ing these matters?
A. Yes.
Q Did not Mr. Burns tell you that
you might be prosecuted?
A. No, he never said 1 would be pros
ecuted. Q What did he say?.
do. that 1 would probably be subpoe
naed and anything that they asked me
about, to come in and tell the truth
about the transaction.
Q. You thought that was rather a
positive suggestion, didn't you?
A. No. I was not taking very much
Stock in any of them at that time.
. But after that you did give your
written statement?
A. Well, yes; I did.
Q. And consented to go before the
grand Jury as a witness
A. I was subpoenaed to go there.
Q lou knew you were going to be
subpoenaed, dldn t you?
A. Nothing certain about It.
Q. You gave your testimony there?
A. Yea, sir.
Q. Did anybody ia connection with
the Government make any statement
or suggestion to you mat they were
after bigger game than yourself?
A sir
Q. Or after any particular individ
ual? A. No. sir.
Q. You testified before tho grand
Jury?
A. Yes. sir.
Q. As to all of these land transac
tions of yours?
A. A good manv of my transactions
whatever they asked me about.
Q. They went over your land trans
actions? A. Well. I guess they did.
Q. In the Jury room, and after that
you wore not indicted?
A. Well, they did not ask me very
much individually about my own land
transactions.
Q. Look at that letter and see If
that is one of the letters you- say you
sent to eenaior auicneu.
A. I wrote that.
Q. Is that the one you swore to In
vour examination in chief in answer to
Mr. Heney?
A. No. that is another letter. The
one I had reference to was two or three
years old. something like that; and I
can not recollect Just when I wrote it
or very much about it.
Q. Then this is not the letter you
referred to in your testimony?
A. No, sir.
Q. How many letters did you write
to Senator Mitchell?
A. I recollect two or three letters.
I don't think of any more; I don't re
member. Letter or F. A. Kribs.
Mr. Thurston: We will offer this let
ter In evidence as a part of our cross
examination. Letter admitted In evidence without
objection as Defendant's Exhibit A. and
read to the Jury, as follows:
FREDERICK A. KRIBS.
Tlmoer Lands.
70 Chamber of Commerce,
Portland, Oregon.
February 1. 1904.
Hon. John H. Mltchel', Dnlted States Sen
ate, Washington, D. C.
My Dear Senator Mitchell: I had quite
a lengthy talk with Judge Tanner the
other day, who is my attorney in all my
land matters. He stated that he was
going to write you, concerning certain
matters.
What I wish to ask of you Is that If
you can see your way clear to knock out
the resolution introduced by Senator Hey
burn. of Idaho wherein he seeks to hold
up and have all forest-reserve lieu selec
tions canceled that have been made with
in the past two years.
I think his resolution refers to "base"
used that was surrendered by the differ
ent railroad companies, and of course
would be on the odd sections, or other
granted lands. The Government has been
freely accepting all such entries, and a
reat many of us on this Coast have
ought several thousand acres dlrectly
from the railroad companies and made
selections, and from time to time have
been procuring different requirements con
cerning these entries, and said require
ments have been demanded from us bv
the Interior Department, and it would
seem that all entries already made should
stand.
It would work quite a hardship on a
good many of us to have such a resolu
tion as that become a law.
If you have any information on the sub
ject that would be of Interest to me. I
would bo very much pleased to hear from
you. Very truly yours.
FRED A. KRIB3.
Q. Will you stato again what people
were Interested with you in those land
transactions?
A. At the present time, the estate of
Governor Pillsbury. John and Charles
Pillsbury. C. A. Smith and C. J. John
son. That would represent probably
the principal holders of the lands in
dispute.
Q. How were you operating? As a
syndicate?
A- No, sir: I would look up a tract of
timber and buy It, and sell it to differ
ent people as I would get a chance:
or anv other locations whatever I
would recommend, those other people
would buy.
Q. How were the profits divided?
A. In a part of those lands I owned
an interest outright for myself and"
paid for my own Interest: and tho other
locations 1 generally charged so much
per acre.
Q. How were the profits divided
when you made money: between whom?
A. Well, so far to date, there have
not really been anv profits to divide,
because we have not sold anything. In
some small transactions I would sell
those lands at an advanced price over
the cost and make whatever I could
myself out of it.
Q. Did you have any written agree
ment with those parties or any of them
aDout your land transactions?
A. No. only in one case the first year
or two I was in the country. I was to
receive so much per acre for all land
that I purchased or that they author
ized me to purchase.
Q. With whom was that contract?
A. That was with Mr. Smith.
Q. Who is Smith?
A. A lumberman of Minneapolis.
Q. Who was the Mr. Johnson vou
referred to?
A. He is a lumberman in Minneapo
lis. Q. Was you Interested with them in
any other lands here in this state?
A. No, no other lands but timber
lands.
Q. Isn't it a fact. Mr. Kribs, that
your business here was to secure the
timber lands of Oregon for this syndi
cate of Minneapolis lumbermen?
A. No. sir.
Q. That Is not true?
A. No, sir.
Q. You did lo some of it, "didn't you?
A. Some of what?
Q Obtain some timber lands for
those gentlemen?
A. I scrlpped by forest reserve scrip
and bought lands wherever I thought
there was any bargain in them.
Q. You tried to get more that you
failed on. didn't you?
A. I don't know of anj! such transac
tion. Denies' There Is Syndicate.
Q. All these lists that have been put
In. the three numbered' lifts of forest
lands In Oregon, you were attempting
to secure all those lands for yourself
and this syndicate of Minneapolis lum
bermen. Is not that true?
A. There was no syndicate, for dif
ferent Interests.
Q. For different Interests?
A. Yes.
Q. That is what you were here for?
A. I entered up those lands accord
ing to the laws of the United States.
Q. I am not asking you that. You
wero here trying to get this vast area
of Oregon forest for yourself and these
different capitalists: is net that true?
A. Yes.
Q. Was you Interested with Mr.
Puter in any list of lands you have re
ferred to?
A. I bought a list of lands through
him.
Q. Is that the only interest you had
with him?
A. And I bought abot 1000 acres
over in Curry County, another loca
tion: lands he coatralleJ; I don't know
whether he owned thorn oc net, but I
got them through him.
Q. Did you nave any partnership
deal with him In those lands?
A. No, sir.
Q. A straight-out purchase on your
part, was It?
A. Yes.
Q. (Redirect examination.) Did Smith
have any Interest in any of the lands
enumerated in that affidavit xs to the
Pillsbury estate lands?
A. Had no Interest whatever in it.
Q. Did Johnson have any?
A. No. sir.
Q. Did Pillsbury have nny interest
In the other lands which you were in
terested In?
A. That 1 selected for Smith and
others?
Q. Toe.
A. lie had no interest whatever.
Excused. '
A. H. Tanner Is Called.
A. H. Tanner was called, and the clerk
proceeded to administer the oath.
Mr. Thurston Before the oath is admin
istered, if the court please, we object to
the (wearing of this witness, and in sup
port of our bjectk-n we offer in evidence
the Journal of this court, page 73. being
the entry of February II.. 1905. We also
offer In evidence the original Indictment
on file in this court, covered ' by that en
try, from which It will appear that Mr.
Tanner has been Indicted In this court for
perjury and has entered a plea of guilty,
and stands. In my Judgment, subject to
the objection of section S2 f the Revised
Statutes of the United States.
I
Mr. Thurston thd rl thi jttatnt
referred tn.
Mr. Thurston's Argument.
After reading the statute, Mf. Thurston
proceeded as follows:
It wan a wise and beneficent provision
of the Congress of the United States to
declare that any person who had perjured
himself should thereafter be disqualified
as ii witness in any case. Manifestly, it
was the belief of Congress, and they have
accepted this belief aa an inheritance from
the English-speaking rnce. from our fore
fathers on both aides of the. ocean, that a
man who commit the offense of perjury
thereby disqualifies himself from becom
ing a witness whose testimony should be
received as of any weight whatever In any
tribunal or by any body of men. This
statute does not provide for bis disquali
fication after Judgment or sentence; it
firovldes that If he doc certain things he
s guilty of perjury, and shall thereafter
be Incapable of giving any testimony in
any court of the United States. I submit
that the record of this court which I have
offered, and which I suppose counsel will
permit me to band In later
Mr. Heney That may be considered
present, but we will object to the admis
sion of It as Incompetent.
?Jr. Thurston Yes. I understand that.
The record of an indictment and a plea
of guilty establishes the fact of record
in this court that perjury has been com
mitted. I am not here to make any re
flection upon the proposed witness, but
simply to perform my duty as an attorney
and to Interpone an objection which 1
believe to be good.
It would be unworthy of any fair prose
cution to hold up the entry of a Judgment
and the Infliction of a sentence in a case
where perjury has been charged and con
ffKsed in open court, for the mere purpose
of permitting a confessed perjurer to
evade the wise provisions of the law.
Mr. Heney Answers.
Mr. Heney It took the English-speaking
world to which my brother has referrea
several hundred years before it reached
the conclusion that a man charged with
murder was entitled even to be defended
by an attorney In court; and it took It
several hundred year to reach the con
clusion that a defendant charged as the
defendant In this case Is charged, was
competent to say one word In his own
behalf upon the witness stand. And It Is
true that this other benighted rule which
we have Inherited Is- still upon our stat
ute books, a blot, as I consider it. upon
the good sense and enlightenment of the
present age. which considers that a wit
ness, whether a defendant or a convict
in state prison, with the stripes upon his
back should be heard by the Jury, and
that the Jury should determine how much
credence to give to his evidence.
The rule Is settled, and apparently well
known to my brother. Senator Thurston,
because his closing remarks Indicate that
he, knows the law to be that mntll sen
tence is entered the witness Is not affect
ed one Iota. A conviction of any offense
without sentence is subject to reversal; a
new trial may be granted, and the person
charged may subsequently be acquitted.
A defendant is permitted at any time -to
withdraw a plea of guilty and enter a
plea of not guilty and go upon his trial.
Counsel cited several authorities In sup
port of his contention.
Mr. Bennett It Is very true, as has
been said by Mr. Heney. that in the ab
sence of a statute such as there Is upon
the statute books the Judgment of the
court is necessary. That applies to all
Infamous crimes, such as robbery, lar
ceny, eta, but the Federal Leginature
has seen fit to single out the crime of
perjury, and to leave the common law as
It was before as to all the other crimes,
but saying as to perjury that Its commis
sion shall disqualify the one who com
mits It. not when he Is convicted, as Is
the rule in the Federal court as to other
matters, but It has eeen fit to say that
the doing df the act shall thereafter dis
qualify him. and I submit to Your Honor
as a matter of right and Justice that that
is the true rule, unles syou are going to
wipe the statute away entirely r.nd say
that a perjurer shall stand the same as
anybody else. Because It does not make
a bit of difference: the Judgment of the
court does not make a man. worse than
he was before; Mr. Tanner won't be any
worse or better man after this court has
entered Judgment in relation to that mat
ter than he is now; his testimony will be
entitled to no more and no lew credit,
and to make the -question turn upon the
mere matter of whether Judgment has
been entered Is an Illogical and unnatural
conclusion. Therefore. I maintain that
the statute, instead of being a blot upon
the law. Is a wise provision.
The Court I am satisfied that the wit
ness is competent under the statute. That
section of the statute contemplates, in
order to render the person Incompetent
as a witness, that there must be a Judg
ment. The witness will be sworn. The
matter of his credibility Is for the Jury
to determine: that is something with
which the court has nothing to do.
The defendant excepts to the ruling.
Objection Is Overruled.
Th oblectlnn wn
defendant allowed an exception.
a. ii. lanner. nein? nrstr m it- cTrnm
behalf of the Government testified as 'fol
lows: Direct Examination.
By Mr. Heney
Q. Judge Tanner, where were vou born?
A. I was born In CVirlc Countv. Stato
of Washington.
V. Jn whut year?
A. In 1EK.
Q. How long have you lived In Oregon?
A. I have lived In Oregon since I was
a boy about S years old. I think.
V!. now long m ioruand7
A. I lived In Portland since 1S75.
Q. When were you admitted to practice
law?
A. In 1579.
Q. When did you met John H. Mitchell?
A- My best recollection Is that mv first
acquaintance with Senator Mitchell was
some time In 1SS0. along there.
Q. Have you occupied a position on the
bench as the reason you are called Judge?
A. I was Municipal Judge here three or
four years, some years ago. and I pre
sume that is where the title comes from.
Q. Were you engaged with Mr. John
H. Mitchell In the law business and In
partnership at any time?
A. . Yes. sir.
Q. When did you first enter into any
partnership with him?
Mitchell's Partner in 1891.
A. I think It was about 1S3L the first
partnership arrangement was made.
Q. How long did that partnership con
tinue? A. Well. It continued until a few
months ago. when this trouble came up.
covering a period, of about IS years. I
think, altogether.
Q. Were your partnership relations
with him cordkil or otherwise?
A. They have been very cordial; never
had a word with him in my life that I
know of.
Q- Were the partnership agreements In
writing?
A. es. sir.
Q. Will you produce them?
A. Well, there have been several.
Q. Have you any of them with you, the
first one and all of them?
A. Yes, 1 have them. I think, from
the beginning. The first one Is dated
February 1. l!M. That was the partner
ship agreement entered Into between the
Senator himself and his son. Hiram E.
Mitchell.
Q. Had there been a partnership be
tween you before then?
A. No. this was the beginning of the
partnership arrangements.
Q. I understood you to say that you
were in partnership with him first in
1S1. and now do you mean in 1901?
A. No. this agreement was In 1S31.
the beginning of the partnership arrange
ment. Mr. Heney We will offer that agree
ment in evidence, although we do not
consider It material to the case, but the
other party will probably call It up on
cross-examination, and It -will be better
to Introduce it In chronological order.
The Court I do not see how a part
nership agreement so far back Is ma
terial, ana l co not nice to nave the time
of the court taken up with Irrelevant
matter.
Mr. Henev Very well, we will not offer
it. but if the one Immediately preceding
the one that is in consideration in this
oase is offered, we think it would be com
petent to show the one preceding that.
Q. There are three agreements, are
there not?
A. Yes, sir: three I have here and then
the one you have, and the last one of
Mr. Heney Well. I will withdraw that
last offer.
Q. I hand the witness a paper indorsed
on the outside. "Agreement between John
H. Mitchell and Albert H. Tanner." Ex
amine that paper and state if you know
whose signature It bears?
A. Those are the signatures of Sena
tor Mitchell and myself.
Q. About when was that paper signed?
i " juwui iao aaie il pears. Jarcn a.
1 190L
Q. Do you know where the paper it
self was typewritten?
A. It was typewritten here In this
city, if I am not mistaken about It: in
fact. I know It was.
Q: Was Senator Mitchell here at tho
time that you signed that paper, and
that It was typewritten?
A. No. sir; I think not
Q" AJter you signed the paper, what
did you do with It?
A- I sent this one and the duplicate
copy of It to the Senator at Washington
to be signed by him and one copy re
tained by him for himself, and to send
oler copy back to me.
Q. Was it accompanied by a letter?
A. Yes. sir.
Q. Was it returned to you by mall?
A. Yes sir: In due time I received
miSp 8,snd by the Senator,
which Is this copy here.
Mr. Heney Te will now offer this
agreement In evidence.
The Partnership Agreement.
K7haZJ?rxclX.&.vrthout objection
"eJSmfoIlowsfhR5,t aSd "ad to
GENUINE AGREEMENT BETWEEN TAN
NER AND MITCHELL.
inTili2fe.emeat'.n,aa'e an entered
into this 5th day of March. 1901 bV hnS
w?nr;.. r Portland. Oregon:
tt-- -e.ss(Llh: That whereas said par
n,hiaJe,,t,ten do.,n bsne as part
fhl JLthc Prance of the law. tinder
inn ?hm ",ar?C ,of antchell & Tanner.
tut le. or,Klnal articles of copartner
Jh1,11 sa,,d Pinners have been
a.nedwand..n,od,fled rora time to time
hiU. .aus become necessary to again
?ohn r tS2mt? i?" ccount of said
t'nit-rf TtitceU hav,"K been elected
J5 i &tates Senator from Oregon, the
following are hereby agTeed upon as
constituting the articles of copirtner
shlp between said parties: """r
tw aLsalld.copartnersh,P between said
?hn imchell and Albert H, Tanner
..nni- tPIatfUce of the law be continued
U?. Le flrni nam of Mitchell & Tan
f'l hat.tn,e net Proceeds derived
r.?.miiaid.bus,ness sha" be divided
S2"a" between. sa,d Parties on the 5th
day of each and every mpnth. All ex-S-nies
?r 8ald business shall first be
paid out of the gross receipts of said
SHfi a.nd the net Profits shall be
dV,d!d.e.n5eeS. John H. Mitchell
and Albert H. Tanner as follows, that
Is to say said John H. Mitchell shall
be entitled to and shall receive one-
JLof lhe J16,1. Profits and said Albert
-2iannir ba be entitled to and shall
receive one-half of the net profits of
said business.
New books shall be opened and an
accurate account kept of all business
done, of all cash received by said firm,
from whom received, by which mem
ber of the firm received, the date of
receipt; and also an account of all mon
eys paid out on account of the firm, by
which member of the firm paid, tho
date paid and to whom and for what
purpose. The account of the firm with
the Merchants National Bank, of Port
land. Oregon, shall be continued, and
all moneys received on account of the
nrm shall by the person receiving It
be deposited as soon as received In
such bank, to the credit of the firm,
and no money shall be drawn from such
fund for anv purpose whatever, by any
member of the firm, except in payment
of the legitimate and necessary ex
penses of the firm, and in the division
of the proceeds of the firm, which shall
be divided on the fifth day of each
month, at which time each member of
the firm shall be entitled to recaiv hin
one-half of such net proceeds. A bank
book of deposit shall be kept In the
office for the use of each member of
me nrm.
It is Understood and ncrrood that th
interest of each of the parties to this
Krccmcni as to an services rendered,
all monem received, nnrl nil hntinan
done by the firm, shall be the equal
one-half thereof, except that for any
Services Which mav he rendered hv
ald John H. Mitchell in the City o"?
.. v... cnucr jn mo .su
preme Court of the United States, the
Court of Claims, or before Congress or
any of the departments, shall be the
Individual matter and claim of said
jonn tu .Mitcneii. and ail lees so earned
by him in either of said courts or be
fore Congress or any of said depart
ments, and his salary as Senator, shall
be the Individual property of said John
H. Mitchell, and the firm shall have no
Interest therein; but for all services
rendered bv the firm or either member
of it In any other place, save and except
as aoove. snau dc considered nrm Dusl
ness and the parties equally Interested
therein.
It Is understood and agreed that all
the law books, office furniture and fix
tures and safe now in the library and
omce oi saia nrm. are owned equally,
share and share alike, bv said John H.
Mitchell and said Albert H. Tanner. It
Is further agreed that only such law
books shall be purchased in the future
as may be agreed upon by said John H.
Mitchell and said Albert IL Tanner, and
mat these shall be nald for from time
to time out of the proceeds of the firm.
and shall be regarded as ono of the
necessary, and legitimate expenses of
the nrm. such new books to be held
equally the same as the others by said
John H. Mitchell and said Albert H,
Tanner.
It is further understood and agreed
that said Albert H. Tanner shall give
his undivided attention td the business
of said firm in Portland. Oregon, or
wherever such business may call him.
and that said John IL Mitchell shall
give such attention to the business of
said nrm as he can consistent witn nis
duties as United States Senator from
Oregon. Each member of tho firm shall
do all In his power to advance the In
terests of the firm and to procure bust
ness for the firm
It Is "further understood and agreed
that In case the firm Is at any time re
tained on a contingent fee. or other
agreed fee. a Brier statement ot me
terms of the agreement shall be entered
as of the date of such agreement In the
day-book of tho firm.
It Is understood that the business of
the firm Is confined exclusively to the
legal business in all Its branches. In all
courts, and wheresoever called or em
ployed. It Is expressly understood and agreed
that these articles of copartnership
shall take effect and be operative from
and after the fifth day of March. 1901.
and are not Intended to affect tho rights
of either ot the parties on account of
services rendered previous to said date
under any of Che prior articles of co
partnership between the parties hereto,
and that all moneys received from or
on account of business done under said
previous articles of copartnership shall
be divided as therein specified.
if Is further understood and agreed
that said partnership mav be terminat
ed" at any time, by either of the parties
hereto, by giving the other sixty days
notice In writing, unless sooner dis
solved by mutual agreement ot the par
ties In witness whereof, we have hereunto
set our bands and seals in duplicate
this! 5th day of March. 1901.
ALBERT IL TANNER (SeaU
(Signed) JOHN H. MITCHELL (Seal)
Mr. Heney We gave notice to counsel
on . the other side to produce In court upon
this trial the original letter ot Mr. Tan
ner of March S, 1S01. referred to In his
testimony.
Mr. Thurston If the court please, we
take exception to that method of proced
ure in the trial of an Indictment against a
defendant. It is an unheard-of practice.
I don't know where such procedure was
ever taken before. The prosecution can
not, under the law. call upon the defend
ant to testify, or to present anything givn
In testimony by word of mouth or by
the presentation ot documents.
The notices referred to are offered in
evidence, and are marked Government's
Exhibits 12 and U. ,
Judge "Bennett We question the suffi
ciency of these notices also. Your Honor.
Court Proceed with your proof.
Q. Mr. Tanner, did yon keep a copy
n the letter which accompanied that part
nership, agreement when It was sent by-
you to senator .niicneu.'
A. Yes. sir.
Q. What sort of copies of letters did
you keep In the office?
A. We adopted some years ago the sys
tem of keeping carbon copies of the let
ters, and keeping them In the letter files.
Instead ot using the old letter-press sys
tem Q. Examine the paper which you now
have in your band, and state whether or
not that Is a carbon copy of the letter
which you sent?
A. Yes. sir. It Is: except It is not signed.
The copies are not signed, as the orig
inals, of course, were.
Q. The original had your name signed
to it?
A. Yes. sir.
Mr. Heney We win offer that in evi
dence. Marked "Governssent's Xxhiblt IL"
Mr. Thurston I presume. Mr. Heney.
you would not care to put in the personal
part of that letter.
Mr. Heney No, I do not care about
that.
Tanner to Mitchell.
The following portion of the letter Is
read to the Jury;
. "March 6. 1S0L
"Hon. John H. Mitchell. United States
Senator. Washington. D. C.
"Dear Senator: Inclosed I hand you ar
ticles of copartnership which embody the
terms of th partnership as agreed upon
In our talk had before you left here.
"Please look them over, and If satisfac
tory, sign them, retain one copy yourself
and return the other to me.
"With kind regards. I remain.
"Yours truly."
Q. I will hand you a document consist
ing of two letter sheets. Whose signa
ture. If you know, does that bear?
A. I recognize it as the signature of
Senator Mitchell.
Q. Was that letter in your possession
before?
A. Yes. sir. that letter, as suggested in
It here, was filed away with the partner
ship artTcles. for the reason that the
Senator wanted It understood that some
oil stock that had been earned under the
old arrangement should be divided In ac
cordance with the former articles of
agreement, and In order to have a record
of that, so there might not be any ques
tion about it in the future, he suggested
that this letter be filed away with the
articles of agreement, and It was so filed
and has been with the articles until I
dug It up the other day.
Q. How did it originally come into your
possession?
A. It came through the malls.
Q. At about the date that It bears?
A. Yes, sir.
Q. Ordinary due course of mall?
A. Yes, sir.
Mr. Heney: We will offer this letter
In evidence.
Mitchell to Get Two-Thirds.
The letter Is marked Government Ex
hibit 15, and read to the jury as fol
lows: United States Senate, Washington. D.
C. Fifth Avenue Hotel. New York City.
March 12th. 10L Hon. A. H. Tnnner.
Attorney at Law, Portland. Or. My
Dear Judge: Yours of March ath Just
received by Die here In New York
where I am for a few days.
In this you Inclose articles of co
partnership between us. I have exam
ined them, signed and return you a
copy, retaining the other. They are all
right except I wish It understood tnat
tne arrangement. with me m regard tp
the oil business sha9 be carried out as
agreed upon under tlle old articles.
That is to say, after all my expenses
are paid on any trip to San Francisco
or Washington in connection with that
matter, the remainder ot the money
part of the fee received by me shall be
divided: I am getting two-thirds ot the
same, and you one-third; and the stock
Interest of the fee 3hall bo divided the
same way; 1 getting two-thirds of the
stock; you one-thh-d. I think I gave
you a. lener to mis enect on my return
from Washington, the latter nnrt nt
December. I wish It understood there
fore that this letter forms a part of
ine co-parmersnip agreement. I retain
a duplicate whlca I have attached to
my copy of the articles which you can
attach to yours so there can be no mis
understanding on the part of either of
us.
Well. Judge. I took the oath last
Saturday and had a reception from all
sides of which any man might be -proud.
i win do ii ere ior a icw aays. ana win
then return to Washington.
I am loaded down with matter. In
the several departments, and letters of
congratulation are coming- in by the
nunurcas. sincerely yours.
JOHN H. MITCHELL.
Tanner" direct.
Q. Did you acknowledge receipt of
mai letter Dy a letter? i wm hand
you a paper from which you can prob
ably refresh your memory.
A. Yes. sir. I recognize that.
Q. What Is the paper which you now
noia in your nana?
A. It Is a copy of a letter written
by me to the Senator. March 21. 1901.
Q. Is that the carbon copy that was
xept in your omce?
A. The carbon copy, yes, sir.
Mr. Heney; We will offer this In evl
Jcnce.
Marked "Government's Exhibit 16."
Mr. Bennett: Do you care about that
letter alter the first two clauses?
Mr. Heney: No.
Mr. Bennett: We have no objection
to the first two clauses.
The first two clauses of the letter
marked "Government's Exhibit 16," are
read to the jury aa roiiows:
Marrh 21. 1901 Hon. John H. Mitchell.
United States Senate. Washington. D.
ucar senator: l nave just received
your favor of March 12. Inclosing artl
cles of copartnership duly signed by
you. aad I note what you say In your
letter in regard to me on business,
which, of course, is satisfactory to me.
There is a clause In the articles which
I thought covered all those matters and
left them a3 they are In the previous
arrangements, but as you suggest, the
statement of the matter In your letter
will leave it entirely tree from any
question. I will attach your letter to
my articles of copartnership also as
suggested.
Tanner direct,
Q. I suppose the original bore your slg
nature?
A. Yes. sir.
Q. Was there any change that Is. any
addition to that agreement made at any
time?
A Vm it tt-9i tianrf Vit- n llttl. ntn.
plementai agreement. 1 think. In Novem
ber, lsw. just relating to the share of
each in tho proceeds of the business.
Mr. Heney It merely makes the change
from one-half to two-fifths for Mitchell
and three-fifths for Tanner.
Q. That is the only change that was
made?
A. Yes. sir.
Mr. Heney We want to show that it
did . not affect any other part ot the
agreement. It is so short it may as well
go in.
Q. Whose signature does that paper
bear?
A. That Is Senator Mitchell's signature
and my own.
Q. Executed at the date It bears?
A- Yes. sir. I recognize there also the
signature of Mr. Robertson as a witness.
Q. And the other witness?
A. I don't know the signature of tha
other witness.
Mr. Heney We will offer this In evi
dence. The paper referred to is marked "Gov
ernment's Exhibit 17." and read to the
Jury, as follows:
Supplemental Partnership Agreement Be
tween John IL Mitchell and Albert H.
Tanner.
It Is hereby stipulated and agreed that
the partnership agreement now existing
between John H. Mitchell and Albert H.
Tanner, under the firm name of Mitchell
& Tanner, shall be continued In all re
spects, the same as It now exists, with
this single exception: The net profits of
said business to be divided between said
John H. Mitchell and Albert H. Tanner.
Instead of being equally divided, as here
tofore, shall, commencing from the first
day of November. 1904, be divided as fol
lows, that Is to say: The said John H.
Mitchell shall receive two-fifths (3-5) of
the net profits, and the said Albert H.
Tanner shall receive three-fifths (3-5) of
the net profits, the same to be divided at
the end of each month and paid to each
partner, as under the existing arrange
ment. This arrangement to be continued
so long as the parties heretofore agree
to the same.
Witness the hands and beala of the par.
ties hereto this first day of November.
nineteen hundred and four (1940.
JOHN H. MITCHELL (Seal).
ALBERT H. TANNER (Seal).
Witness present:
H. C Robertson.
W. H. H. Wade.
Q. Do you know Frederick A. Kribs?
A. Yes. sir.
Q. How long- have tou known nlm?
A. I have known him since October,
1901, I think; somewhere along- there.
Q. Did you have any business deal
ings with him in October of 1901?
Q. Yes, sir.
Q. What did it relate to?
A. Well, my first knowledge of Mr.
Kribs was a telegraphic dispatch which
I received from aim from Minneapolis,
askipg me to
nr. isenneii: we ODject to the wit
ness stating- what tho telegram said.
court: it is not necessary to so back
to that.
A. What is your question?
Q. What did this business arranara-
ment that you had with hi hi In October.
1901, relate to. in a gensral way?
A. It related to timber land.
Q. State what agreement. It an7,
you entered into with, him In October.
1901; where It was and when it was,
and what was said.
A- Well, as I was about to state, my
first business relations with hlro relat
ed, not to Government land, but to
some land that was owned by the Port
land Savings Bank, of this city.
Q. When was that?
A. That was In 1901, I think; some
time along; thbre. And then this other
matter of these timber cjalros came up.
Q- Well. now. ln the matter ot the
timber claims, state what agreement.
If any. you made with him.
A. When Kribs first came to my of
fice, he brought a letter of Introduction
from George H. Andrews, a friend of
mine, and at that time secretary ot the
Oregon & California Railroad Company.
Mr. Bennett: Of course, Your Honor,
we want all thl3 testimony that goes
In in relation to the conversation be
tween him ind Kribs, Senator Mitchell
not being present, to go In subject to
our objection upon the same ground as
to the other witnesses: that Is. in the
same matters covered by Your Honor's
ruling.
Court: Yoc are not Interposing any
objection to this Introductory matter.
Mr. Heney: We do not care for that
about the letter either.
Mr. Bennett: Why may not all of
mis matter go in suuject to our oojec
tlon?
Court: I do not like to do it that
way. because undoubtedly that way
there would be matters go in that
ought not to so in tee case at all.
Mr. Bennett: Your Honor desires us
to Interpose our objection to each ques
tlon?
Court: Why. certainly, I would pre
fer to have you do that.
Mr. Bennett: Very well. Your Honor.
O. Just confine Xt to the talK you had
with Kribs. and state where that con
versation with Kribs was, in regard to
the employment.
Objected to as incompetent. Immate
rial, variant from the pleadings, ana
hearsay.
Court: Counsel misunderstood me When
you make an objection to tne Introduc
tion of testimony and get one ruling on
It. of course that will govern, no mat
ter how many times similar testimony
Is offered. It Is all covered by the first
objections. What I had reference to ts
where new matter Is brought out.
Mr. Bennett: The same matter that
Is covered by Your Honor's ruling may
all be considered to be objected and
excepted to?
Court: Yes. certainly.
Mr. Bennett But if we have any new
objections' to offer, then Your Honor de
sires us to Interpose them.
Court Yes, any new matter.
Agreement With Kribs.
A. Mr. Kribs came to my office after
this first meeting that I speak of some
several weeks afterwards and said he
was a newcomer to the state and had
bought considerable timber land and ex
pected to buy more, and he was going to
do a scrlpping business under the forest
reserve act. tina wanted to Know ii i was
In a position to accept employment from
mm to iook alter his lana matters. ie
said he might have some matters in the
Land Office at Roaeburg and also at Van
couver and Orecon Citv: and I told him
that I was and would be glad to have the
work to do. And he said the first matter
needing Immediate attention was some
timber lands that he had purchased of
some peonle In Southern Oregon. He
said the entries were being held up for
some reason and wanted me to taKe noia
of them and see If I could get them ad
vanced to patent. I Inquired of him the
conditions, and how he came to get the
lands, and explained to him that If there
was any collusion between him and the
entry men that I could not do anything
ror mm. ana did not want to nave any
thing to do with the hiatter. Well, he
said there was nothing of that kind about
It; that the only thing he could think of.
or knew that was In the way was that
ne nad Dought tne land soon alter tne
entrymcn had proved up on the claims
and that he thoucht possibly the depart
ment might have suspected something
wrong irom tnat tact. wen, i 3aia u
that's all there Is In it, I think we can
overcome tnat. because. I said, tho de
partment has frequently decided that
that, of Itself, is not sufficient to Justify
a cancellation of the1 entries, assuming
that they are In other respects in good
faith, and l also wrote him a letter to
the same effect: and being assured by
him that there was no fraud ln the en
tries at all. 1 did not hesitate to take
hold of them and tn to help -him. He
said he had invested a good deal of
money and it had been tied up for about
a year. I tnmic ne said, and ne wanted
something done, and he wanted to know
what terms 1 would take hold of It upon.
I said to him that I did not know Just
what might have to be done. I said It
might rsult in a contest as to each of
these claims In the local Land Office at
Roseburg. and It might require a great
deal or work, or it mignt not require so
much. I said, "and I could not agree with
you about a fee on the whole matter.
and." I said, "I think the best way all
around would be to agree on a retaining
fee of what would be fair and right and
then if there Is any additional work to
do ln any ot tnese matters, li jl snouia
have to go to Roseburg and try contests
over these entries, why. of course I would
expect to be paid in addition to the re
taining fee." Well, he said, that seemed
to be all right; he wanted to know how
much I thought would be proper. I toid
him I thoug.it $1000 ought to be about
right as a retaining fee ln the matter. He
said, all right, that he would be willing
to pay tnat. and asKed ii it would oe ail
right if he should pay $500 of It then and
$500 when the cases were passed to pat
ent; and I told him that would be all
right. So he brought in the lists of the
claims, I think there were about 40 of
the claims. And. of course, I did not
know what the status of the claims was.
From his statement, he seemed to have
a general Idea that there was something
about this matter of having bought them
so soon after entry, that probably that
was what was the matter. But I thought
that In order to get at the foundation of
the matter I had better get the status of
tha claim from the Commissioner of the
General Land Office at Washington, and
Senator Mitchell was In the city at the
time and I told him that I had been re
tained in those cases.
Q. Just state the exact language as
near as you can recollect It. Judge the
substance of It ln which you told Sena
tor MltchelL
Explained Who Kribs Was.
A. I cannot remember the exact lan
guage. It has been so long ago. but I
think I Introduced Mr. Kribs to the Sena
tor.sbut I don't remember whether there
was any conversation at that time; but
subsequently I said to the Senator, ex-
Jlalned to hlra who Kribs was, and that
had been retained In -these matters and
ln his land matters generally- But Just
what I aald I can't recall. But I asked
the Senator if he would write the Com
missioner and get the status of the-
claims from him; and he sal a ne would,
and did write a letter to the Commis
sioner, giving him a list of the claims
and asking to be advised as to the status.
Q. In telling the Senator that you had
been retained, did you tell him that you,
personally, had been retained?
A. I can't recall Just what was said
about that, but I presume I told him that
I had been retained; yes. I should Im
agine that would be what I said to him.
Q. Is that Imagination based upon the
fact that that Is the form of expression
you would have used In any case?
Objected to as leading and suggestive.
Objection sustained.
Q. Was anything said by him which
showed whether ho understood as "to
whether this was a personal employment
of yours or a firm employment?
A. No. I do not think so.
Q. Under this "first agreement with
Kribs. how many lists did ne give you?
A. I think there were two separate
lists: but there was one brought ln at
one time and another at another, I think;
but about tea same time.
Q. Making up the 40 claims?
A- Yea. sir.
Q. There were about 40 claims in the
agreement.
A. Tea. sir.
Q. I will hand you a paper which Is
marked "Government Exhibit L" Whose
signature. It you know, does that bear?
A. Tnat is senator jjJtcneus signa
ture.
Q. You stated that you asked him to-
write a letter. Examine that caper and
state whether or not tha is the letter
to which you refer.
A. xe3. sir. i think it is. it relates to
one of the lists.
Q. Was that the first list that was
brought in?
A. xnat is tne nrst list; yes, sir.
Q. Did the firm ot Mitchell fe Tanner
keep books at that time?
a. les. air.
Q. Was any entry made In any of the
firm books in relation to that contract
with Kribs?
A. Yes, sir; thero was an entry mads
about the time of the transaction.
Q. What Is the book which is now
handed your
A. This Is one of the day books, or
?0.ik5 ,9tori?lna, eQtry. ot the. firm of
Mitchell & Tanner.
. Q- Is that book that you have In your
ba"?. tho one that wa3 kept ln October
of 1901?
A. Yes. sir.
Q. And does that contain an original
entry of all of the business transactions
of the firm?
A. Yes. sir.
Q- I will ask you to turn to page 120
of that book. In whose handwriting are
the entries upon page ISO?
A. Those entries re ln the handwrit
ing of Mr. H. C Robertson.
Q. In whose handwriting Is the one un
der date of February 16?
A. That Is ln Mr. Robertson's hand
writing. Q. Did you see that entry in the books
at or about the time it was made, or at
or about the time of the date that It
bears?
A. Yes. sir.
Q. Where was this firm book kept at
that time?
A. It was keot In the safe of th firm
except, of course, when It was out tnd
being used, or entries being made in it.
Q. And then it was in the office there?
A. In the office of the firm; yes. sir.
Q. Did Senator Mitchell have access to
the safe?
A. He did have access to It. I don't
know whether he had the combination or
not, but Mr. Robertson always did. and.
of course, the Books were at his disposal
whenever he wanted them.
Q. Was Mr. Robertson an employe of
the office?
A. Yes. sir.
Q. Of the firm at that time?
A. Yes. sir.
Mr. Heney We will offer this entry In
evidence, and when Mr. Robertson Is on
the stand, we will prove it.
Mr. Bennett I don't think, may It
S lease Your Honor, that any knowledge
as been brought home to Senator Mitch
ell of this entry at all. at this time or at
any time. But for what It may be worth, t
am willing It should go to the Jury, sub
ject to our general objection to all of
this proof, which we have been interpos
ing to everything alike on the ground of
variance, etc. That Is, we interpose the
general objection that It Is variant from
the pleadings ln the case, and does not
sustain any count ot the Indictment.
The Court The objection will be over
ruled. Mr. Bennett We take an exception.
Mr. Heney: I will read this entry
from page 130. The heading is "Port
land. Oregon. Oct. 4th. 1901." Then un
der 16:
"Fred'k A. Kribbs, Dr.
"To fee for services In the matter of
about forty timber-claim entries and
for procuring approval of same for pat
ent, we are to receive ln cash $500, and
$500 when patents are issued.... $1000
"By cash Cr. $500"
Q. I Now call your attention to page
121 of the same book. The two entries
at the top. in whose handwriting are
those?
A. Thqse are in -Mr. Robertson's
handwriting.
Q. And did you see those entries at
or about the date that thev bear?
A. Yes, sir.
Q. Are you able to state whether or
not they were put ln the book at about
the date they bear?
A. Yes. sir; I think they were.
Mr. Heney: We will offer those two
entries.
Same objection.
Objection overruled.
Defendant excepts.
Mr. Heney: "Portland. Oregon. Octo
ber 16th. 1901' is at the top ot page:
"Fred'k A. Kribbs. Cr.
Bv cash to apply on expenses of
sending a man up the country to
Brownsville and other places to pro
cure affidavits from entrymen. etc..
$100."
"A. II. Tanner, Dr.
"To said to amounts of cash from
Fred'k A. Kribbs. $600.
"By deposit ln bank. Cr.. $600."
The day-book Is marked for identifi
cation. "Government's Exhibit 18."
Q. Do you remember ln what form
that money was paid. Mr. Tanner? That
is. as to whether It was by cash or by
check, or how?
A. I think it was paid by check. In
fact. I know It was.
Q. I will show you "Governments
Exhibit 3." Did you ever have that in
your possession?
A. Yes. sir. That check was given
me by Mr. Kribs.
Q. In the transaction the entries of
which have Just been read in evidence?
A. Yes sir.
Q On 'the agreement about which
you testify?
A Yfis six
q" Whose endorsement is on the
back?
A- That Is the endorsement of Mitch
ell & Tanner, placed, there by myself.
Q. Then what did you do with the
check'
A. I deposited it to the credit of the
firm in the Merchants National Bank
of this city. ., x . . ,
Q. Was It collected and paid?
A. Yes, sir. .
Q. I notice that the entry here is
charging yourself with the $600. What
was your method of making those en
tries? A. Well. I charged the cash tc my
self and then took credit by depositing
ln the bank, if I deposited it at all or
If I did not. I stood charged with what
I did not deposit ln the bank.
Q. Did you do that with all cash or
checks that came in?
A. Yes. sir. ...
Q. In what way. It any, was a pul
sion of moneys made, that came In aur
fng the month, we will say. for this
month of October. 1901?
A. Well, a little after the first ot
the month, usually about the third or
fourS of the month, the books were
balanced up. expenses paid and what
ever there was left was divided be
tween us. ln accordance with the arti
cles Of copartnership. i,-
Q In making that division in what
way would you do It to s ettt V
out of the firm account? What banK
waa the firm account in?
A. In the Merchants. National Bans.
0fQ.h,What"was your method of draw
ing the money out qt the Merchants
National Bank when you divided in
thA Intended usually to drawing
checks, and I would draw a check in
favor of the Senator for his amount, 1
he was her! and give it to him person
ally or give It to Mr. Robertson and
tell' him to give it to him: but if the
Senate was in Washington. 1 usually
drew the check for his amount In my
am'e.payable to and f1
It to his credit In his ?e"nakcount
in the Merchants- National nans.
q. Under what name was that ao-
COAntTnattaccount was kept under tho
4eDfyo
t8ANo sir: I never knew-never in-
qUor'edwisyahd?v1sfobr? of thl firm moneys
fo?that?monto of October! ISO. made?
A Yes sir; the division was made
for that month .the same as usual.
q. was an entry of It made ln me
firm books? usuai entry Is made
there November 2. 1901. I believe is
tho dOnpage 134 of the book from which
you were testifying?
A. Yes. sir. on page 134.
Q. That Is the day book?
Yes sir
o'. In whose handwriting Is that entry?
A. That is in the handwriting ot Mr.
RQbDonyou know whether that entry
was made at or about the time of the
date it bears?
A. Yes, sir.
Q. Was It?
A Yes sir. It was.
q Did you see it at or about that date?
A. Yes sir.
q Do ' you know whether Senator
Mitchell was ln Portland or not on No
vember 2. 1S01? . . ...
A. I don't remember about that. I am
sure. I could not tell you whether he
was or not.
Mr. Heney We will offer this entry ln
evidence. The entry appears on page 131:
"Dividend.
John H. Mitchell. Dr.
To net cash. 431.33 & Exp. 4.50
by checks as follows: To H. E.
Mitchell $100. to John H. Mitchell -
balance $355.83 Ch. No. 742 $455.S3
A. H. Tanner. Dr.
To net cash 4S1.32 Exp. 2 less
amount drawn during month, of
$113. balance by check No. 743 $370.32
y. nave you me stun dook, or -the
return checks, for that. Judge Tnner,
do you know?
A. I don't know whether they are thtre