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About Morning Oregonian. (Portland, Or.) 1861-1937 | View Entire Issue (June 23, 1905)
THE OREGOXLLNV PRJJDAY, JT&TE 23, 1905.
JUDGE A. H. TANNER TELLS OF FIRM'S DEALINGS WITH FREDERICK A. KRIBS
m.roft, "Whitney Co.. Ck. No. 7S7.
U7, Pacific Monthly. No. 785. 13.00:
Edward Thompson Co., No. 789, $6.00;
A. uran jo.. JVO. 730. J10.J9;
'kcrt. Seamano A- nni,llcf Vn 791
i.vP; Guide Publishing: Co., No. 792,
Ml Eaclflc States. Telenhone Co.. No.
V, $11.00; Title Guarantee & Trust
I' !0. 794. $50.30: A. C Sneneer to
tirrh!. No. 795, 525.00. Total $121.75.
nai receipts $1091.00. Total J sburse-
tej's $154.75. Net cash $936.25. A. H.
rener to one-half net cash S46S.12.
Expense $1.75; less amount Jrawn
Ebrtng month $6.00; by cneck. No. 796,
iSJSr. John H. Mitchell to one-half
it cash $468.13.
JOSt belOW that Is thA Mtrr nf Marrh
E, 1502. and we offer the preceding: four
nines with the date and all that fol-
icw the Fred A. Kribs entry of Feb
uary 13, the -whole of that page 1 In
,rJr to show the error in the date of
"ebruary 3, on this pagre 8. but for- that
air xnurston: Just cover it hv a
;ta'.ernent that the paper shows four
responuing aates as follows. There
3 -.0 objection to tnat.
Mr Hency: We will onlv use It for
ju. purpose. I want to use the entries
I arfaln hand you the Jay book
ii call your attention to nacre 170.
he top entry. After the notice of the
fssitance of patents in the lists 1, 2 and
3 did you make .anv other agreement
fir.'ta Fred A. Kribs in regard to lands?
les, sir. lie brought In some
When was it that the agreement
A. About September, 1902.
Q What was it in reference to?
Kribs Agreed to Pay $1000 Fee.
A. He brought in a counle of lists
f leu selections; that ie, land that had
een selected under the forest reserve
rt. and said that the selections had
ben .made some two yars prior to that
t!n:e, and that he had not been able to
ge action or to get any report or to
ascertain what the condition was or if
anything was wronsr with them. Had
art been able to make any progress at
alt !n the matter, and said so far as he
kr.fw there was nothing wrong with
them, but they were all right except
icere mignt ce some derects here and
tAre in the abstracts of title to tne base
lar.Js or some defects to supply In ref
erence to the base lands in the ab-Etra-ts,
ad wanted to know if I would
take .hold of the matter and -look it ur
an! assist him in getting these lists
rovea. in ne nrst mace, to cet the
tus of the selections and find out If
ouia what was the matter, if anv-
rg. and do whatever was necessary
supply the omissions or defects that
exist in the abstracts of title or
any other respect with reference
the selection. And I made an ar
geraent with himto take hold of he
tier, ana ne agreed to pay me a fee
$1000, $500 cash and the balance
en the selections were approved.
2- Are those the lists, 4 and 5, about
ten you nave tesuncj?
J. And those had been sent on Anril
30. 1802, by this letter of April 30. 1902,
which referred to the same matters,
had they not?
A. I suppose they had. yes.
.O. 'Dili voil make an ontrv In fhn hnnlr
n September. 1902. at the time of the
agreement In regard to the fee?
A Yes. sir. 1 did.
Q. And that appears in the daybook of
the firm of Mitchell & Tanner, does it?
A Tcs. sir. it appears in this same
book at page 170.
Anci tne nrst two entries related to
Lit. did they?
t 1 es, sir.
MYj Henev: We offer those two entries
xne eame were aamittea ana rcaa as
Then the figures 20. The first entry Is
at the top of the page: Fredrick A. Kribs
to -services and advice in rererencc to
lorest lieu selections, lists, figure 3, and
ngure 4 written over u. 4 ana 5 (Saoo.oo
mere to be paid when said selections are
4approvcdi, and in the debtor column.
j&oooo. By cash $500.00 in the credit col
umn Tne same aate. a. 11. lanner to
Cash, above amount. $500.00 in the debtor
colur.m, by cash $500.00 In the credit col
vj. 1 nana you two sneets purporting to
be carbon copies of letters dated Novem
ber lwz, both bearing tne same date.
Are those carbon copies of letters taken
ifrom your office files?
A- Yes. sir. they are conies of letters I
"wrote to the Senator.
Q. You mailed the original of those two
letters to the Senator on or about the
date wn'ch these copies bear?
A, aes. sir
Mr Hcney: We will offer these in evl
fience. The same were received In evidence as
Government's Exhibit 51 and 51a, nd read
The first letter to Senator Mitchell from
Mr Tanner enumerates tho numbers of
the lieu-laud selections, and says:
1 have the honor, therefore, to request
that you ascertain, if possible, the presont
status of these selections, and which. If
any of them, have been approved for pat
ent, and what requirements, if any. re
main to be complied with before those
not approved can be approved for patent.
As suggested in a former communication,
the estate of the late ex-Governor Pills
burs', of Minnesota, Is Interested In these
selections, and In order to expedite the
settlement rf his estate, it is desirable to
have an early action upon these selections,
which, wc trust, if not already approved,
there is nothing now in the way of such
Wants Mnttcr "Punched Up."
The second letter, also from Mr. Tanner
to Senator Mitchell, says:
Referring to the enclosed letter. I hope
that you will punch the matter up all you
can, as a part of our fee depends upon
getting these selections approved.
Q. Did this first letter refer to the
lieu lands that were the subject mntter
of that contract of September 20. 1902,
which vou have Just testified about?
A Yes. sir
Q The second letter contains the
words Referring to the enclosed
letter ' That means the letter first
read does it?
A Yes sir.
Q That was the second payment of
$500 00 that was referred to in the
agreement of September 20?
A. I suppose it was.
Q Did you receive an acknowledge
ment of the receipt .of that letter from
A. Yes. sir; that is It.
Q. Whose signature does that paper
A That is the signature of Senator
Q, Did you receive that in due course
of mall about the time of its date?
A Yes. sir; I did.
Mr Heney: I will offer that letter In,
The same was received as Govern
ment's Exhibit 52.
After enumerating the numbers of tho
lieu -land selections. Senator Mitchell
writes to Mr. Tanner:
"Great Cry of Land Frauds."
These are the selections that the
Commissioner of the General Land Of
fice, by a letter of May 21st, 1902, stated
that not one of these selections was at
that time In condition for favorable
action, but that they would be taken up
for consideration at an early date and
tho local office informed as to the
requirements in each case. etc. A great
crv of fraud generally in Oregon In re
gard to these public lands, lieu lands,
etc.. has been raised in the Interior De
partment, and I understand the Secre
tary some time since, on the report of
Special Agent Greene, who is his right
hand roan issued an order suspending
a large number of land matters in Ore
gon. 1 think It more than likely that
the suspension covers these selections,
but I will inquire Into the matter care
fully at once, and find out Just how
these selections stand at present, and
will advise you.
Q. Do you remember of Senator Mitch
ell In the year 1902 making a trip to
A Yes. I remember the circumstance
of bis talking of going, and so on.
Q Have you any way of fixing it so
that you can recall the month that he
left Portland for Honolulu?
A. No, sir; I have not.
Q. Nor tho month that he came back?
Q. Do you know whether he was here
between the date of the agreement with
Kribs. September 20. 1902, which Is en
tered in the books, and the date that you
wrote the letter to him. on November 11.
A, I could not say from memory at all
Q. On this September, 1202, agreement
I believe you stated you received a cash
payment of $300. examine this paper.
Government's exhibit 7. and state
whether or not that check was received
for that payment?
A. Yes, rfr; that Is the check repre
senting that payment.
Q. That is whose signature?
A. That is the signature of Fred A.
Q. The check is made payable to A.
H. Tanner. Do you know why that was.
or was there any special reason er any
thing said about It?
A. I don't remember any special rea
son about it. He sometime? made out a
check that way, payable to Mitchell &
Tanner and fcometimes
Mr. Bennett: We object to the witness
stating what they did sometimes.
A. Well. J have no recollection except
that the check was drawn to me person
ally. Q. What did you do with the check
when you received It? 1 will show the
A. It was indorsed by me and depos
ited to the credit of the firm in the Mer
chants National Bank.
Q. On what date?
A. September 20. 1902.
Q. Was the check paid?
A. It was; yes.
Q. Was there a division made of the
net earnings of the firm for the month
of September, 1902?
A. Yep, sir.
Q. I show jou the daybook and ask
you If you can tell on what day the di
vision tor made?
A. On October 3, 1902.
Q. Was there an entry made of It on
the books of the firm?
A. Yes, there was.
Q. On what page of the daybook?
A. It is on page 172 of the daybook.
Mr. Heney: We will offer that entry on
page 172 in evidence.
Portland. Or., October 3. 1902...
Paid the following bills by check: Pa
cific Monthly. $1.50; Guide Publishing Co.,
$1; Pacific States Tel. Co., $9.20; office
rent to October 31. 1902. $50; F. W. Baltes
& Co. (scratched out. and in brackets,
"charge1 to F. A. Kribs"). $7.25 (also
scratched out); Wyckoff. F. & B.. $25;
A. C. Spencer, salary September. $39: to
tal $94.35. It originally read $194 and the
one is ntricken out. Total receipts.
$1,031.70. Total disbursements, $177-26. Net
cash. $914.45. A. H. Tanner to one-half
net cash $4S7.22. Epensc. $7.70. less amount
drawn during month, $37. Total, $127.92.
John H. Mitchell, to one-half net cash,
Q. I hand you stub checkbook of the
firm of Mitchell & Tanner. That Is It,
A. Yes. sir.
Q. Will you turn to the checks for Oc
tober 3. 1902.
A. They are not in this book. You
only called for the one stub, and that is
all I brought. There la another stub
book there, which I presume would have
the check in It.
Q. I wish you would bring that at
the next sitting. I hand you what pur
ports to bo a carbon copy of a letter of
date December 5. 1902. Is that a carbon
copy of a letter taken from your offico
A. Yes. sir; that Is the office copy of
Q. Was the original of that letter
mailed by you at about the date this
copy bears, to Senator Mitchell?
A. Yes. It was.
Q. In this connection. I will ask you
as to your office flies. Did you have a
separate file for firm business from your
A. I had a personal letter file and
sometimes the firm letter got Into that
file by mistake.
Q. Whore were those letters In rela
tion to these lands kept these carbon
A. Generally In the letter flics of the
Mr. Heney: I offer this letter In evi
dence dated December 5. 1902.
The letter was received In evidence
as Government's Exhibit 53, and read
Tanner Urges Haste.
December 5. 1962.
Hon. John H. Mltohoil, United States
Senate. Washington. D. C
Dear Senator: 1 beg to acknowledge
receipt of the copy of a letter from the
Honorable Commissioner of the Gen
eral Land Office, under date of Nov. 26.
1902. relating to lieu selections. tThe
numbers are given.) in which he says,
among other things, that the said cases
are now in the files awaiting consider
ation in due course of business, and
that when reached, they will bo taken
up and passed upon without Interrup
tion, etc. Would it be asking too much
of you to ascertain from the Honorablo
Commissioner whether It will be pos
sible to have these cases taken up out
of their order Immediately for the rea
son that, as I have already explained
to you. the estate of the late Governor
Plllsbury of Minnesota, now In process
of settlement, is Interested In these se
lections and can not be settled up until
these cases are disposed of. I believe
there is a rule of the Department which,
upon a showing made of this
kind, allows or rather provides that
cases may be taken up out of their
order and disposed of. If any affidavit
is required to be made of this kind, we
can furnish the same.
Very truly yours,
Q. I will ask you If you received a
reply to that letter from Senator
A. Yes. I did. This Is the reply.
Q. Whose signature Is upon that
A. It is the signature of Senator
Q. Was this reply received In due
course of mall about the time of the
date it bears?
A. Yes. sir.
Mr. Heney: We will offer this letter
The same was received as Govern
ment's Exhibit 54, and read in evidence,
"Great Howl" Prevents Action.
Washington, D. C., Dec. 10, 1902.
Hon. A. H. Tanner. Attorney-at-Law.
09 Commercial Block. My Dear Judge:
I beg to acknowledge recelnt of vnr of
December 5 enclosing duplicate deposits
slip for $226.01, bring my share of the I
procecas or our business lor the month of
I note that you will forward me In a
few days Patterson's petition for cer
tiorari. I have made no arrangements
whatever with Mr. Patterson; you had
better have an understanding with him;
he ought to pay something besides a mere
contingent lee. as franklv I have but
little faith in his case. You can have
my name printed on the brief, that will
be all right. I am glad that you are pre
paring the brief, as It would simply be
impossible for me to do It now, as I never
was jto busy in all my life.
Owing to the great howl now being
made about land frauds. I do not think
it is possible to get the cases you refer
to taken out of their order. If you will
have some person interested In the lands,
however, to make affidavit showing why
they should be taken oat of their order. I
will see what can be done.
With the compliments of the season, I
am. Yours very Inccrely,
JOHN rf. MITCHELL.
P. S. Toll Patterson my settled rule Is
to never appear in U. S. Supreme -Qourt
unless I have a retainer of $259. v
Q. I hand you three sheets nurnortlnc-
to be carbon copies of two letters of the-
same aate. iecemDer is. ic Are those
carbon copies of letters taken from the
office files of your office?
A. Yes. sir.
Q. Was the original of these three
sheets mailed by you to Senator Mitchell
at about the aate these carbon copies
A. Yes. sir.
Q. And signed by you?
A. Yes sir
Mr. Heney: We will offer these three
sheets In evidence.
The same were received In evidence as
Government's Exhibits 55 and 55a, and
read in evidence as follows:
Haste Is Again Urged.
December 29. 19d2. John H. Mitch
ell, United States Senate, Washington,
D. C. Doar Senator: As suggested In
one of your former letters. I herewith
inclose you an affidavit of Fred A.
Kribs showing tnat the estate of John
S. Plllsbury. lately deceased. Is Inter
ested In the list of lieu selections at
tached to the affidavit, and that the
administration of said estate Is being
delayed and hindered en account of
these selections not being reached and
passed on and that the estate and heirs
will be put to great Injury and loss
unless said selections can be advanced,
made special and disposed of at once.
I think the showing made In tje affi
davit Is amply sufficient to authorize
these cases being made special and dis
posed of out of their order. It has been
repcatedlj decided by the Secretary of
the Interior that the matter f advanc
ing cases on the docket by the Commis
sioner rested In his own discretion and
would not be Interfered, with except for
the abuse of such discretion. 1 am also
under the Impression that there is a
rule or some decision of the depart
ment providing that where estates are
interested In selections, that they may
be advanced to expedite the settlement
of the estates, although I confess I am
not able just now to put my hand on
sucrvrule or decision. It certainly ought
to be allowed for it is obvious that If
these selections take the slow process
of the department, it may be several
years before the administration of this
estate can be closed up. In the mean
time, the lands might depreciate In
value, the limber be burned off of
them, if they are timber lands, thereby
entailing great loss to the estate or
the creditors or the heirs. I trust that
you. will be able to get the Honorable
Commissioner to order these selections
taken up out or their regular order and
disposed of at once.
In reference to -these selections. I
wish you would also ask the Commis
sioner to have the number as given In
his office placed opposite the selec
tions, on the inclosed copy of this list
and return the same to me so that I
will have his office numbers of the
cases and can keep track of them by
the numbers. Very truly youra.
"Get Hermann Interested."
December 29. 1902.
Hon. John H. Mitchell. United States Sen
ate. Washington. D. C.:
Dear Senator With reference to these
selections. I have no doubt that the Hon
orable Commissioner can, if he chooses-to.
order these cases advanced and made spe-
CUMULATiyE MASS OF DOCUMENTARY EVIDENCE AGAINST MITCHELL
United States Attorney Hency. in the Mitchell trial, is burying the defense under a mass of documentary evidence y
which requires one man to carry Into the courtroom. In the prosecution of the case he Is taking the matter up In chro
nological order, dating his case from' the original partnership agreement made between Mitchell and Tanner, on March
1, 1901. to the time the Senator wrote and sent the letter to Tanner by H. C. Robertson which was Intercepted by the
Government and dcl'vcred to the grand Jury.
Mr. Heney has bad Introduced as evidence the first agreement. .dated In March of 1S0L which shows the provi
sions under which the business of tho firm of Mitchell &. Tanner was to be conducted, and setting out the fees to be
received by the Sonator for his practice before the departments at Washington. In addition to this has beer produced
the supplementary agreement, differing In nothing except the proportion of the dividends to be secured by each mem
ber of the firm. The last agreement, and the one of greatest Importance, la the one written In Portland In Decem
ber last, and dated March L 1901. This is the agreement which the defense has admitted having altered, and which
by Its change In the clause relating to practice before the departments, tends to fasten knowledge of the Illegality of
his acts upon the defendant. ,
The letter written by Mitchell to Kribs. In relation to'his claims was also Introduced, as were a vast number of
personal letters passed between Tanner and Mitchell, all relating to the Frederick A. Kribs claims, the fees to be
received from him, and those which were paid, the work to be done by the Senator before the Land Office, and the de
posit checks sent by Tanner to tho Senator as his share of the firm, business.
Perhaps the most Important document, or one of the most important. Is the letter sent by Mitchell to Tanner
asking him for a copy of the books between the dates of November. 1S41. and June. 1902, the period during which the
Kribs entries had been made. This Is held by the Government as evidence that the defendant did know that
his acts had not been according to law, and wished to see Just what could be done to counteract the effect of the rec
ords. Of equal Importance Is the carbon copy of the daybook sent In answer to this letter, which copy was introduced
yesterday afternoon, after strenuous objection by the defense.
All correspondence showing the knowledge of Mitchell, and having been wrtten either by himself or his partner,
is being laid before the Jury by the prosecution, as well as all checks paid by Kribs and those sent by Tanner to
The firm daybook showing the original entries of the Kribs payments has also been Introduced along with the
stubs of the checkbooks from which the checks were drawn. The original checks drawn by Kribs In favor of Mitchell
Si Tanner, and the checks drawn by Tanner for Mitchell have been Introduced as showing the fact that Mitchell had
knowledge and received the money.
The affidavit of Kribs In regard to the legality of his claims as sent to Mitchell in Washington, -has been brought
forward as combatting the eoatonlion of the Senator that he bad no knowledge of any transactions with Kribs.
The lost document introduced yesterday was the Iotter written 'by "Mitchell to Tanner just prior to his indict
ment, which letter was sent by Robertson, but foil Into the hands of the Government. This letter Instructs Tanner
how to proceed, and asks bJm to bring the Arm books, the checkbooks and the bznkbooks with him secretly to Washington.
clal. and put them through without delay.
I understand that L. T. Darin has been
able to get a list through which was filed
Vitcr than ours, and has even already
gotten the patents therefor. It seems that
wc ought to be able to do as much for
this party, especially since the showing Is
made which is contained In Mr. Kribs
affidavit. Can't you get Hermann inter
ested In tho matter and Insist on having
these selections taken up and disposed of?
I do not think the great cry of fraud as
affecting land entries out here under tho
timber and stone act can apply to forest
lieu selections under the act of June 4.
1887. Klr.Uly advise me as to the result of
this application, and oblige. Yours truly.
Q. There Is an affidavit referred to or
suggested in on a of your former letters:
"I herewith enclose you affidavit of Fred
A. Kribs." I hand you government ex
hibit for Identification, and ask you wheth
er or not that Is the affidavit referred to
in the letter?
A. Yes. sir. I think It is.
Q. Whose signature, if you know, does
the second sheet, the affidavit, bear?
A. It Is the signature of Frederick A.
Q. Before whom was it acknowledged?
A. It was sworn to before myself as a
Q. Were you a Notary Public at the
A. Yes, sir.
Q. It has attached to it as a part of it
six sheets containing a list of lands. Can
you state whether or not those are the
lands that are contained In lists 4 and 5
about which you have testified?
A. Yes. sir, that is my understanding,
that they arc the same selections.
Q. The lieu selections Involved In tho
1902 timber agreement with Kribs?
A Yes, sir.
Mr. Heney: We will offer this affidavit
in evidence, and. with the consent of coun
sel, we will not read the long lists of land.
If It may be considered as read.
Mr. Bennett: We will not Insist on that
The same were received In evidence as
Government's Exhibit 53. and the whole
paper considered as read, and no portion
read at this time.
Q. I hand you a paper bearing date
January 5. 1903. Can you state whose sig
nature It bears?
A. That Is the signature of Senator
Q. Was that received by you In due
course of mall about the time of the date
A. Yes. sir. It was.
Mr. Heney: We will offer this In evi
dence. The same was received as Government's
Exhibit 57, and read in evidence as fol
lows: Washington, D. C, January 5. 1903.
Hon. A. H. Tanner. Attorney-at-Law,
-Commercial Block, Portland. Oregon:
My Dear Judge I am Just In receipt of
yours of the 2Sth ultimo. Inclosing affida
vit of Fred A. Kribs. I will confer with
the Commissioner and endeavor to have
these cases made special. Everything is
in such an upset condition here in the de
partment, as you will see from the papers,
that It is difficult to get anything dono
Just now, but I will 4o my best.
Yours vvery sincerely.
JOHN H. MITCHELL.
Q. Do you know when Binger Her
mann went out of office as Commission
er of the General Land Office?
A. No. sir. I do not recall the date.
Q. Do you recall what year It was In?
A. No, sir, I cannot recall from mcm-
Do you recall from your letter as
to what the "upset condition" referred
A. No, sir, I do not; I don't knovv" what
Q. I hand you what purports to be a
carbon copy of a letter of March Si. 1903.
two sheets. Are those carbon copies of
letters taken from your office files?
A. Yes. sir.
Q. Did you mall the original of those
two sheets to Senator Mitchell at about
the date these copies bear?
A. Yes. sir. I did.'
Mr. Hcney; We will offer them In evi
dence. Mr. Bennett: I think we desire to ob
ject to them. Your Honor. I tako It that
this is written after Mr. Hermann went
out of office and a new Commissioner
went in. and we are only charged with
having taken pay for services rendered
during the term of Mr. Hermann, and
therefore anything relating to services
that may have been Tendered after he
went out of office could not possiblv be
Mr. Heney: The act Itself has now been
proven, and the defense Is want of knowL
edge- Any evidence of similar acts, and
especially any evidence of a similar
transaction that would tend to show that
the acts performed before Hermann were
performed with knowledge of the fact
that money was received, would. It seems
to me. be competent evidence.
Mr. Eennett: I think possibly the state
ment of Mr. Hency would be true,. but I
do not understand this letter to be of
such a character as that unless I have
overlooked something la it.
Mr. Heney: I may have xaade that
statement a little too narrow. The law
makes It an offense: "No Senator shall
receive or agree to receive any compen
1 sation whatever, directly or indirectly.
J for any service rendered or to be ren-
dered," so that the agreement to receive
j comes -within the provision, and any evi
I dence that tends to show that an agree-
m?nt was made la competent. All evi
dence mat Dears upon tne carrying out
of that agreement of September, 1X2. Is
competent as bearing upon the establish-
j wvuk ui. iuc nicvuicui Hiiu fttiun i(ruG ui
performed the service agreed upon.
Mr. Bennett: There Is no allegation In
the Indictment that we ever agreed to re
The Court: I supposed this was an ac
tion charging the defendant with having
performed service before the department
at Washington and having received com--pensatlon
Mr. Bennett: Not before the depart
ment, butj before Dinger Hermann, an
officer of the department: "To appear
before and persuade the said Binger Her
mann to make special, expedite and ap
prove the said selections. ' This letter
is simply a request to Mitchell to go be
fore the new Commissioner and get cer
tain things done.
The Court: I think the Indictment
charges that he contracted to render his
service, or that a contract was made to
render service, and In pursuance of the
contract compensation was received on
Mr. Heney: Yes. for services rendered
and to be rendered.
The Court: Yes. but do you understand
that under the statute a mere contract
to render services Is an offense?
Mr. Hency: Yes, I do. It Your Honor
The Court: Is that what you charge?
Mr. Heney: No, I think we havo
charged the receipt of the money 'as
Tho Court: That is what I was think
ing. Mr. Heney: (After examining the in
dictment): Wc appear to have charged
both of them. I have a copy of the
statute here, if Your Honor desires to
look at it.
Mr. Bennett: We do not question the
statute being broad enough to cover it.
Mr. Heney: To cover both?
Mr. Bennett: Yes.
Indictment Charges Both.
Mr. Heney: I think the indictment
Mr. Heney read a portion of the In
dictment, and continued:
It Is alleged that he was the Commis
sioner of the General Land Office at that
time, and bad these matters pending
Tho Court: I think the contract as
charged Is that tho appearance should
he made before Binger Hermann, and
that special influence was to be used
with Binger Hermann.
Mr. Heney: As such officer.
The Court: Well, ho was the Com
missioner of the General Land Office,
but the contract was not that he ap
pear boforo Binger Hermann or any
Commissioner of the General Land Of
fice, but the charge is that he would
Induce Binger Hermann. I think you
will have to be confined to that.
Mr. Hcney: Would not evidence of
the fact that within a short time follow
in? the going out of office of Binger
Hermann, and In relation to these same
matters, the effort to secure patcntxi
was continued, be a- circumstance
which might tend to prove th agrne
mcnt alleged In the Indictment?
The Court: I am not prepared to say.
Mr. Heney: I am not, either. I am
taken by surprise, and will go on an
other lino of evidence, and address
Your Honor on this subject again. If I
Q. I will hand you another book and
ask you. Judge Tanner. If that is a con
tinuation of the daybook of the firm of
Mitchell & Tannor?
A.' Yes, It Is.
Q. Commencing September 6. J904?
A. Yes, sir.
Q. I will call your attention to an
entry on page 5. After reading that
entry, can you state whether or not any
payment was rcelved by the flrm of
Mitchell & Tanner from Kribs upon
that agreement of September. 1902. at
any time after the first payment of
Kribs Paid $200 In October.
A. Yes. sir; there was a payment
made October 10. 1904. of $200.00.
Q. Was an entry of that payment
made In the daybooks of the firm?
A. Yes. sir; the entry Is mado hore
on page 5 of this book.
Q. Did you see that entry at about
the time it was mads?
A. Yes. I made the entry myself; It
is In mv own handwriting.
Q. Was It made on the date It bears?
A. Yes. sir: it was.
Mr. Heney: We will offer that entry
Mr. Bennett: I desire to make the
same objection as to the last matter;
that Is. that it refers to services ren
dered before some other person. If ren
dered at all, besides Mr. Hermann.
Objection overruled. Defendant ex
cepts. Mr. Heney: 1 will read the entry In
evidence from page 5 of tho book;
"Portland. October 7. 1904." Under the
figures "10" In the middle of the page,
indicating October 10. 1504. "Fred A.
Kribs by cash $35. By remittance on bill.
7ZJSO; by cash on account of list No. 5.
$200. A. XL Tanner to cash above amounts
$2C By deposited In bank. $165."
Q. I call your attention to the entry
In the daybook for September. 1902. which
has been read In evidence, of the agree
ment with Kribs. and ask you If the list
No. 5. which appears In the entry of
October 10, 1904. Is the same list No. 5 re
ferred to in the entry of September 20.
A. Yes, sir; It relates to the same list.
Q. Was that payment of $200 made by
A. Yes, sir.
Q. I hand you Government exhibit No.
10. Is that the check by which it was
A. Yes. sir; that is the check.
Q. Is that check Indorsed on the back?
A. It te.
Q. By what name?
Mr. Bennett: Of course our objection
goes to all of this?
The court: Yes.
A. It Is Indorsed by the firm of Mitch
ell & Tanner In my own handwriting.
Q. What was done with the check af
ter you received it? Tou received it from
Krite. did you?
A. T's, sir. I deposited part cf It to
the credit of the firm, but seem to have
retained $K out of the $235 which, he
fiald at that time, and stood charged with
t on the book.
Q. That is, you stood personally
charred with $100?
Q. Was there a division made of the
proceeds of the firm business for the
month of October. 1S04?
""A. Yes. sir.
Q. When was that made?
A. November 2. 1S04-
Q. Was an entry made of It In the
books of the firm, and entry of the divis.
A. Yes. sir.
Q. Upon what page?
A. On page S.
Q. In the second daybook?
' A. Yes. sir; the second daybook.
Mr. Heney: We will offer that entry In
Or.. November 1. 1204.
Paid the following bills by check today
(under the date of November 2): Title
Guarantee 4r Trust Co.. $50: Guide Pub
lishing Co.. $1; Pacldc Monthly Co.. $L50;
Pacific Coast Agency Co.. $165; A. H.
Tanner. Jr.. $; Pacific States Telephone
& Telegraph Co.. $S-C5; John H. Mitchell
to one-half net proceeds. $394.83. A. H.
Tanner to one-half net. $394.83. Expense.
$1&40. Total. &SL22. Amount debtor.
$287.30: different. $273.72. Amount carried
out in the debit column. $273.72.
Q. Was tho check for $200. and the
whole of It. Included In the net proceeds
of the firm business which were divided
on November 2. 1504?
A. Yes, sir; It was.
Q. By deducting from your share there
of the $100 retained by you?
A. Yes, su. ,
Q. Do you remember as to whether or
not Senator Mitchell was In Portland at
the time of that division, November 2
A. No, I cannot recall from memory
whether he waa or not.
Q. I wish you would look - up your
checkbook for that date -and bring it
A. Very well.
Q. That makes two dates. The other
one was for October and November of
Q. I notice an item. A. H. Tanner. Jr..
$40. In that last settlement account that
was read In evidence. Is that your son?
A. That Is my son: yes, sir.
Q. He was an employe In the office .at
A. Yes; he was a stenographer In the
Q. About when was he first employed
In the office?
A. I cannot recall from memory now.
Q. Some time In the year 1904?
A. I think so.
Q. I Will hand vmi a orlntel form
the Western Union Telegraphic Company.'
ms umi icicgram receiYca oy you aw or
about the date It bears?
A. Yes. sir, it was.
Mr. Heney: Wc will offer this tele
gram In evidence.
Mr. Bennett: We will Interpose an ob
jection Your Honor, in addition to tho
general one, on the ground that It is In
competent, and not connected with the
defendant In any way. and no sufficient
foundation laid for its admission.
Mr. Heney: It is preliminary to show
ing a meeting and what took place,
Mr. Bennett: It is not proved to be the
signature of Senator Mitchell In any way.
I don't know anything about it.
Court: I suppose it Is competent to
show by the witness that he met the de
fendant at Kalama, and that he went
there because of that paper that he re
ceived. Mr. Hcney: That Is the purpose of It.
Does Your Honor think the telegram
Itself Is not admissible?
Court: It simply shows his reason for
meeting him there. It is not very ma
terial. I suppose the material fact would
be that they had a meeting there and
something took place.
Mr. Heney: I think that In addition to
that It Is material to show who Initiated
the proposition for a meeting.
Court: I think if you propose to bind
the defendant by any thing in that tele
gram, you would have to show that he
Q. On what day did you receive this
A. I think the date It bears, December
Q- By reason of the receipt of that
telegram did you leave Portland?
Met Mitchell at Kalama.
A. Yes. sir. I went over to Kalama to
meet tho Senator In pursuance of that
Q. Did you meet him?
A. I did. yes. sir.
Q. On what day?
A. I think It was the evening of that
same day; possibly It might have been
the evening of the next day, but It was
about that date.
Q. This dispatch Is St. Paul, Minne
sota. A. Well. I was mistaken about that
going on the date the. dispatch bears: I
see that I was mistaken in that, but it
was some two or three days after the
date of that dispatch. He was coming to
Portland, of course, and the time that the
train would reach Kalama would be the
time that I met him. Whatever would "be
the time It took him to get from St. Paul
to Kalama. I don't know just how many
days that would be.
Q. You did meet the Senator at Ka
lama .then, within a tew days after De
cember 30, 1S04?
A. Yes, sir.
Q. Can you remember by Christmas
day as to whether It was before or after
A. 1 think It was before Christmas, if I
am not mistaken.
Q. Where did you meet him, on the
train or In town?
A. I met htm on the train.
Q. Was that train coming toward Port
land. A. Yes, sir; It was the overland
Northern Pacific train.
Q. Did you continue on the train
with him into Portland?-
A. Yes. sir; I did.
Q. Now. state what conversation you
had with Senator Mitchell, if any. In re
lation to these matters, on tho train.
Mr. Bennetu I would like to ask a
few questions in relation to the com
petency of this testimony.
EXAMINATION BY MR. BENNETT.
Q. Mr. Tanner, were you acting as
attorney for Senator Mitchell at that
A. No. sir: I was not.
Q. When did you commence to act as
attorney for Senator Mitchell In relation
to this matter?
A. After he had left Portland, and
started back, to Washington, he wrote
me a letter from Chicago, dated from
Chicago, on his way east, and asking
me to take charge of the matter, aad
to see a certain lawyer la this city, and
see If I could get him to assist Eie in
the defense of this other case this
Q. Yes. I understand.
A. That Is the first that I ever knew
of his expecting mo to be his attorney,
or to represent hlm.
EXAM1NATION BY MR. HENEY CON
TINUED. Q. State the conversation that you
had with Senator Mitchell on the train.
A. r met him on the train, and at the,
time he was at dinner In the dining car.
and I. of course, shook hands with him.
passed the time of day. and also with
Mr. Hermann and his wife, who were
on the train, and Mr. Baker. I think
Frank Baker was also In the same car.
And after this general talk, of course,
there was anxiety to find out. If hs
could, what the charges TTSrS what the
talk was here.
Mr. Bennett: I would Just like to ask
one more question. I don't want to in
terrupt, but there Is a rnatter conies to
my knowledge that I did not know be
fore. I desire to refresh the witness
Q. (Mr. Bennett): I will ask you if
Senator Mitchell did not telegraph to
you In relation to the matter of your
acting as his attorney before he left
Washington to come out here? Didn't
he telegraph you In relation to that
matter, especially to see Mr. Heney and
Mr. Hall, who wras the United States
District Attorney, as his representative,
In relation to getting the privilege of
going before the grand Jury?
A. Yes. he did. Of course. I did not
consider that an employment. I did it
simply at his request, but I did not
know before that her regarded that as
retaining- me. If he so considered it, of
course. I suppose I was retained. But
I did not so understand it, I simply did
It at his request,
Q. (Mr. Bennett): Well, you had
been acting for him in that matter?
A, I went and saw Mr. Heney and
I saw Mr. Hall. also, who was then Dis
trict Attorney, and tried to rind out
what the nature ot tho charges wero
Q. (Mr. Heney): Is that the tele
gram? A. Yes. sir; that Is the telegram.
The telegram was as follows:
"I am advised an effort will bo made
bv Heney. Assistant Attorney-General,
to Indict me by grand Jury to meet Mon
day. See him and Hall and If this is
true, demand for me the right to appear
as witness In my own behalf before
grand Jury, and wire me If this privi
lege will be granted. I demand a full
investigation by grand Jury. WIro
quickly as possible. Confidential.
,r J. H- MITCHELL."
Mr. Bennett: In audition to that, I
offer to show to the court that at that
first time, or any time, that Senator
Mitchell understood at the time he was
talking to Mr. Tanner, that Mr. Tan
ner was his attorney and that he was
talking to him confidentially In that re
lation. Tanner "Sot Employed as Attorney.
The court: That telegraphic dispatch
Is not an employment of the witness by
Mr. Bennett: I think we will, ask the
court to note an exception to Your Hon
or's remark about that also to the ruling
of Your Honor, upon the ground that it
was a privileged communication.
Mr. Heney: I auggest. Judge Tanner,
that you can confine tho testimony to
statements in relation to any proposed
action. Well, give the whole conversa
tion. Mr. Bennett: The same objection goes
to this. Your Honor, I suppose, and to
all of this testimony, if Your Honor
will permit It?
The court: If the whole of it is In
relation to this case, he may give It,
Q. Confine it to the subject matter of
A. Do you want me to limit It to the
conversation that took place on the
A. No. you can tell tne entire conver
sation that you had with him; on the train
nrst, and then the next conversation, if
there was one: but confine it to the sub
ject matter of this case.
Mitchell Spoke or Kribs' Matter.
A-.f". after some general talk. In
which Mr. Hermann and he both partici
pated, conjecturing what the charges
were, and what it was that the grand
Jury was Investigating, they both seemed
to be in the danc. and of course anxious
to learn. If they could, what the nature
of the charges and what the rumors
were around the city. I told them that
I was not able to tell them very much
about It, Then when the Senator and I
had a chance to talk privately about
matters he asked me whether I thought
it was possible that the Government
agents had got Into tke office and got at
the letter files: got any evidence In that
ay' u 3, t0dJ,;ym that 1 dId nt think
they had. I did not know that there had
oeen atnytrtlny of the kind, and I said
the office is always kept locked, but those
letter files are in the cases- and, of course,
accessible. If they get Into tho office. And
some talk was then Indulged In In regard
to this Kribs matter. Spoke of this mat
ter of Kribs and whether the Govern
ment was going to be able to get -any in
formation out of Kribs about the trans
actions. Q. Can you state the substance? State
as nearly as you can. hi? exact language
In regard to that matter and who brought
It up first, you or him.
A. He began to make . Inquiries about
Q. What did he say?
A. He said, what was Kribs going to
do; whether they could get any Informa
tion out of Kribs about the transactions
tha.tAa?.b.en 113(1 u",tl the Arm or not.
and I told him I didn't know what course
ZT Cr,bs "would pbrsue about It. and
that led to a sort of argument between
he and me as to whether there was any
thing in the transaction with Kribs that
would affect him as Senator. I was sur
prised when he intimated that there might
Mitchell Seemed Afraid.
He shook his head and seemed afraid
of It. and of course I said. "I don't see
that there can be anything in that that
would affect you." I raid. "Kribs em
ployed me and I did the work, and what
ever assistance you rendered was the
same as you would render any constitu
ent who might call on you for assistance
of that kind." I did not. so far as I was
then advised, consider that there could
be any case against him. I did not think
that the grand Jury was after him on any
matter of that kind, and there was a
general running talk from that time until
we reached Portland.
Q. "What did he say In reply to that?
A- yTell, he said that he was afraid
of It. He seemed to shake his head and
was net satisfied with the condition of
things in reference to the transactions
that had been had with Kribs and won
dered If they had had the letters or
could get at the corresppondence. Also
what the books showed about It. I told
him. as near as I could, the entries in
the books, and all about It as far as I
could remember it then, and he said
before we reached here that he wanted
to see the books: that ne would come
to the office. I think, the next day; he
wanted tp look over the books. I said:
All right, you can come any time. I will
be glad, to show them to you. That Is
the substance of ths conversation on
the train until we reached here, I ac
cotnpanloJ him to his room at the hotel
and left him there.
Q. When did you next see him?
A. I saw him. T think it was the
next day at the office.
Q. What conversation uid you "have
with him there?
Goes Over Tanner's Books.
A. He came to the office and said
ho would like to look over the books
of the flrm. And I opened the safe and
got out these books that I have been
testifying about here, and took them
Into his private office and gave them
to him. He took them and went over
them page by page. I wa on one siJa
of the table and he on the other. And
he pretended to be surprised at the en
tries In thebooks. Well, I said: Great
heavens. Senator. If there has been any
thing wrong- in tnls business in the way
it has beon transacted why haven't you
said sc long ago? I said: The books
have been kept Just as the articles of
copartnership provided and if you
wanted them kept In any other way.
why haven't you said something about
It before? Well, he didn't say anything.
He couldn't -say 'anything.
Mr. Bennett: Objected to. That mat
ter is argumentative.
ReTvrite the Books."
A. He did -not make any reply to it.
"He suggested, or asked me, how long
lt would take to rewrite the books.
Well. I said It would not take long, and
I said: Dc you mean to leave out these
atries about this departmental work
and bulaM? Yes, he said, to leave
tnls out; rewrite the books and leave
out all those entries So I said wa
could not do that because I said we
have had. three or four clerks on these
books and the Government would get
hold of some of them or all of them, I
said, and it would never do In the world
to try to change the books, and that
was about the substance of that con
versation. That was practically all that
was said at that time.
.. Ten dId yu cext avo a. conversa
tion with him?
A. Of course he was In very great dis
tres of mind.
Court: You need not state that,- He
asked you when you next had any con
versation with him.
A. It was at his room in the Portland
Q. That sam day?
Books Would Convict Him.
A. I think perhaps It was. I called at
his room at the hotel every evening while
he was here and one or two evenings I
did not go down, and he telephoned me
to come down to his room, and I went
there to see him and be with him. When
ever we were alone of course there wera
other people coming in to see him. to sym
pathize with him. and so on but when
ever wo were alone, he would bring up
this, matter about the Kribs business and
about the condition of the books. He
said those books would, not only Indict
but they would convict him. And I in
sisted tney would not. We had it ham
mer and tongs about whether they would
or not. I told him in the course of tho
conversation that I thought the proper
thing and the safe thing to do was to
make a full breast of the matter, apd ho
Insisted that the books should be de
stroyed and that It would not do for it to
appear that he had received any part ot
this Kribs money. And he Insisted on it
in his determined way and" impatiently
would not listen to anything else.
Mr. Thurston: Your Honor, we object
to this character of testimony. Let the
witness state what was said.
Court: Yes. state what was said.
A. I do not mean to claim that all this
took place at any particular time. I can
not segregate it so as to state Just what
tooic place at any particular one of theso
meetings, but, after, as 1 say, this talk
with htm about what ought to be done. I
Anally said to him I saw that it was
Beqnh-cd "Lying and Swearing."
A, Well. I will leave that out. I do
not want to Interject anything that Is not
? roper. I said to him finally. "Senator."
said, "to adopt the course that you
want to In this matter and make way
with those books, or destroy the books
and change the face of things and try to
make It appear that you did not get any
part of this money, is going to require a
lot of lying and swearing to It in court
on the part of both of us." I said, "It 13
a thing I never did before In the world.,
and I hate like everything to do It. but If
you think It Is necessary, if there Is' no
other way out of it, why. I cm willing to
go to any length in reason to help you
and protect you."
His reply was. and I think I can give
his exact language. He said: "Judge I
consider anything justifiable under the
circumstances." He said. "This Is a case
of persecution, Wo havo done nothing
morally wrong. Hitchcock has a grudge
against me and Is going to uso his power
to try to ruin me," and he said, "I want
you to stand by and help me."
"Well." I said. "I will do that. Senator.
I have always done that. And It Is just
a question of expediency what to do."
"Well." he said, "they must never get
Offered to Burn the Books.
"Well." I said. "I will see that they
don t get the books. I will burn them
up. " I said. "I will refuse to produce
them. But." I said. "I don't see much
use of making away with the books when
that partnership agreement Is In exist
ence, because," I said, "if I am called be
fore the grand jury" as I expected that
I would be any minute at that time
"about the first thing I would be asked
would be about the agreement,"
And I said. "That agreement shows that
you are to have one-half of all fees wher-
about your practicing in the department:
that. I said, "does not look well on the
face of It."
"Well." he said, "we can change the
agreement." T said that could be done-. I
think, by re-writing a single clause In it.
and making it appear that I was to re
ceive all those fees.
"But." I said, "you must remember that
Mr. Robertson prepared that agreement,
ran It off on the typewriter, and it would
hardly be safe unless we could count on
him in the matter."
"I Will Manage Robertson."
Well." he said,, "you fix It up. and I
will manage Robertson." or "fix Robert
son." or something to that effect. That
was In the evening. The next morning I
prepared the contract, changed that
clause, and turned It over to my son to
copy on the typewriter, put Into form.
And when he had it prepared. I took it
and went up to the hotel to the Senator's
room and gave It to him. He read It over
carefully, and said. "That Is an right.
That will fix it all right." And we signed
the two copies there were two copies of
it; one for him and one for me to keep.
At the time, after it wa3 signed, while we
were standing there In the room, he said,
"Will your son be all right?" I said, "Yes.
he will do whatever I tell him to In tho
matter, but you will have to look out for
Robertson." And he gave me his copy of
the contract to put in the safe, and I took
them back, and put them in the safe.
Q. I hand you a paper. Is this the con
tract that was prepared by you in that
manner the paper now handed you?
A. Yes. sir, that is one of the copies of
It. I don't know whether it Is the original
or the carbon.
Q. Whose signatures does It bear?
A It bears the signatures of Senator
Mitchell and myself.
r Til. I ...... a m. V.fm ot.I... II...
on that paper?
A. I did: yes, sir.
Q. In the Hotel Portland?
A. Yes. sir.
Q. And that was sometime In the month
of December, 1901, was -it?
A. Yes. sir.
Mr. Heney: We will offer this paper
Marked "Government's Exhibit 58."
Q. Which clause of the agreement Is it
that was changed?
A. It is the first clause on the second
Q. And all-the balance of it Is the same
as that first agreement that was put In
A. That Is my understanding; yes, sir.
Mr. Heney: Then I will only read that
claus- and tho whole may be considered
Clause That Was Changed.
It Is agreed that th6 interest of each of
the parties hereto as to all the services
rendered, all moneys received and all busi
ness done by the firm shall be the equal
one-half thereof, except that for any serv
ices which may be rendered by said John
H. Mitchell in the Supreme Court of the
United States shall be his individual mat
ter, and all fees so earned by him, in said
court, and his salary as Senator, shall be
his Individual property, and the flrm shall
have no Interest therein; and that for any
and all services which may be rendered
by said Albert H. Tanner before any of
the departments at Washington, D. C, or
any of the branches or bureaus thereof,
or in the Land Department of the Govern
ment, either at Washington, D. C, or Ore
gon or elsewhere, shall be his individual
matter, and all fees so earned by him
shall be his individual property, and the
flrm shall have no- interest therein, and
eald John H. Mitchell shall not be re
quired to perform any services therein ex
cept such as he might properly do as a
Senator In Congress for any constituent
It Is headed, "This Agreement, made
and" entered Into this 5th day of March,
1901. by and between John H. Mitchell
and Albert H. Tanner, both of Portland.
Q. At the time that the first agree
ment was prepared, what colored ribbon
was being; used on the achlne In the
omcs ot aiitcneu c xannert
A. You will have to ask some expert
about that. I don't know anything
about it, J
Q. Can't you "tell by looking at that
caper? (Exhibit 11.1 ,
A. No, sir: I couldn't tell you any
thing about It.
Q. What color Is that typewriting? .
Q. What color is this one .that was
prepared in 1904?
A, 1 snouia juage ic was oiacic 1
Q. Do you know tho first time, that -a
black ribbon was used in the office of
Mitchell & Tanner? v
A. No, I didn't 9y any. attentloa tq