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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 12 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 nrgose oniy, 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 .fccnseives. 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 made? 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? Tes. sir. 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 lnX'vIdence. xne eame were aamittea ana rcaa as follows. 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 umn. 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 as follows: 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 Javorable action. 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 Senator Mitchell? A. Yes. sir; that is It. Q. Whose signature does that paper hear? A That is the signature of Senator Mitchell 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, evidence. 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 Honolulu? 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? A. No. 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. 1902? A, I could not say from memory at all about It 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. Kribs. 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 book. 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, 1ST Q. I hand you stub checkbook of the firm of Mitchell & Tanner. That Is It, la 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 files? A. Yes. sir; that Is the office copy of the letter. 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 personal matters? 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 copies? A. Generally In the letter flics of the Arm book. 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 as follows: Tanner Urges Haste. Ex. -53. 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 Mitchell? A. Yes. I did. This Is the reply. Q. Whose signature Is upon that paper? A. It is the signature of Senator Mitchell. 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 In evidence. The same was received as Govern ment's Exhibit 54, and read in evidence, as follows: "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 November. 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 bear? 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 Mltoholl. ' 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. Kribs. Q. Before whom was it acknowledged? A. It was sworn to before myself as a Notary Public. Q. Were you a Notary Public at the time? 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 Mitchell. Q. Was that received by you In due course of mall about the time of the date it bears? 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 to was? A. No, sir, I do not; I don't knovv" what It was. 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 pertinent. 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 ceive anything. 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 for it. 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 certain dates, 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 pleases. The Court: Is that what you charge? Mr. Heney: No, I think we havo charged the receipt of the money 'as the offense. 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 charges both. 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 before him. 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 conclude to. 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 $500.00? 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 in evidence. 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. 19022 A. Yes, sir; It relates to the same list. Q. Was that payment of $200 made by chock? A. Yes, sir. Q. I hand you Government exhibit No. 10. Is that the check by which it was paid? 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? A. Yes. 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. ion? 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 2 104? 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 tomorrow. A. Very well. Q. That makes two dates. The other one was for October and November of 1S02? A. Yes. 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 that time? A. Yes; he was a stenographer In the office. 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 sent it. Q. On what day did you receive this telegram? A. I think the date It bears, December 2 1301. 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 dispatch. 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 Christmas? ' 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 time? 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 futer case. 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 memory. 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 against him. 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 the defendant. 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 this case. A. Do you want me to limit It to the conversation that took place on the train? 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 the matter. 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. Court: Yes. 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 Hotel. 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 necessary to Objected to. 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 those books." 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 in evidence. 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 page. Q. And all-the balance of it Is the same as that first agreement that was put In evidence? A. That Is my understanding; yes, sir. Mr. Heney: Then I will only read that claus- and tho whole may be considered as read: 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 without charge." 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. Oregon." 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 don't know. 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