THE MORNING OREGONIAN, SATURDAY, JUNE 24, 1905.
EX-JUDGE A. H. TANNER HAS FINISHED HIS DIRECT TESTIMONY
10
(Continued From First Page.)
of this testimony, and Mr. Heney alleged
At. -in fchotv the false defense nhoiit to be
put up by Mitchell. The court overruled
Mr. Heney s contention, however, and sus-
ined the objections of the defense.
Kdge Tanner stated that all of the fees
Ived for work done before the depart-
nt had not been credited to the Sen-
r as per agreement, for the reason
it a Jarge part of the "work had been
le In Portland. It had been considered.
nerefore, that It had not come under the
rause In the agreement.
After the return of the Senator, subse
quent to bis Indictment, the witness had
held no conversation with him other than
related to the dissolution of the partner
ship. Another Kribs. Agreement,
sOn December 3, 1303. the witness said.
; iiad another agreement with Kribs con-
irnlngr lands to be passed to patent. The
3fense objected to this testimony for the
son that It was outside of the allcga-
lon of the indictment and pertaining to
Ser matters than those charged. Mr.
teney contended that as a transaction
rlor to the last payment shown In the
ictment it was worthy of acceptance as
idlng to show knowledge and Intent on
ie part of the defendant in the oases set
at in the indictment. Mitchell might
Rje received fees In one instance unwit-
urry. or. nerhans. in two Instances, but
vJthi each succeeding time the chance of
Mb list knowing that he was violating the
grew Jess. The Judge ruled In ac
cordance with Mr. Heney and allowed the
evidence to be Introduced.
'Continuing, the wflneas testified that
Kribs had brought a list of lands to him
in December, stating that they were lieu
eelectlpns, the base of which were Cali
fornia lands. He wished to have thm
hurried -through the land office as ttJy
were promised In sale as soon as patents
were issued. He had paid $500 as a retainer
and bad promised COO more as soon as
the certificate of natent was issued. The
witness identified a let Us: written to the
Emator stating that Fred A. Kribs was a
fiend end client of Tanner'a. Mitchell
answered the letter and promised to
to what could be done towards having
pe list made special and passed through
&e department.
rIn May, 1S02, the wlloess had made an
agreement with John A. Benson by which
tho firm was to secure favorable action
on a list of timber lands in Clerk County,
Washington. Benson had made a contract
-tor the sale of the lands as soon as they
should be patented and wished them hur
ried through the department. The firm
w to have $500 or "the work as soon as
the list was epproved.
In the afternoon Judge Tanner followed
py identifying telegrams which had passed
between nitaself and Mitchell concerning
-th ,J?enaon lands. Another letter had
- been written to Mitchell, In which was in
closed a letter from Benson saying that If
-his list of scrip was passed through the
land office the firm would get a fee of
,100. It was also suggested in the letter
'that If the Senator had anv delicacy about
appearing before the department on ac
count of his position as Senator ho could
say that he was Interested in behalf of
Oregon people.
Mitchell Aided Benson.
In April, 1902, Benson had passed through
on him In his office. He had acknowi-
jgea mat tnrougn the lniiuence of Scn-
, Mitchell, 3200 acres of his land had
i passed, W. H. Dlmond would keep
of the details of the transactions
come and would keep the Senator
Tanner had told Benson that the
!r would not want to be known In
ltter and would not care to have
ach acquaintance with Dlmond. He
k)t seo that it would do any hurt.
r. to have occasional communlca-
lt,h him. Benson had agreed and
Id promised to send a substantial
mount as a fee upon returning to San
fanclsco.
letter was introduced, written from
fccbell to Tanner, asking for informa-
about the Benson claims. The Sena-
' stated that he desired a special letter
.atlng of nothing else than those claims.
rder that he might be fully advised
ceiling them. As soon as he received
letter he would take up the question
Ithelr passage with the Commissioner.
he firm had made an agreement with
Oregon Land & Livestock Company.
witness testified, by which a test cape
to be brought before the department
fine rights of the company to select
rands in the Oascade forest reserve.
ler had prepared a brief in the mat-
ind nad sent It to the department.
this brief had been considered by Her-
trnajin, who had decided against it. Let-
tiers were introduced showing the Inter-
Xijtet of the Senator In the work before the
"department. One of these was from
Mitchell to Hermann, referring to the
decision and noting that an appeal would
b made to the Secretary of the Interior.
January 14 a letter was written by Tan-
ner to Mitchell inclosing a notice of ap
peal from Hermann's decision. He urged
the Senator to have the appeal made at
ence, as the firm would be in position to
receive a large fee if it could get the Sec
retary to reverse the Commissioner. Tan
ner wanted to get the matter Into the
Supreme Court.
Senator Showed Anxiety.
Senator Mitchell, after the filing of tho
Fief, bad written to Tanner to know if
.b name had been signed to the docu
sent. Tanner had replied on June 22,
1903, stating that he had not signed tho
senttor a name, as he did not think, on
account of his position, Mitchell would
desire to appear as an attorney for the
company Instead, he had signed his name
Individually. On February 2S, the Sena
tor had written to Tanner stating that he
would give the lieu selection list his car
nest attention as soon as It came up In
the department. On May 13, ISM. a pay
ment of J500 had been made by the com
pany for the service done.
The witness testified that In May. 1902.
an agreement had been made with W. E.
t Burke in regard to having a list of arid
lands passed to patent. Burke had paid
as a retainer. Later. Tanner had
'written to Mitchell stating that if tho
Burke lands could be made special and
passed to patent, tho company could de
velop them by putting water upon them
as intended, which would be to the advan
tage of the firm. Mitchell had replied by
letter that he had seen the Commissioner
ind the lands would be made special. In
4ils letter the Senator Inclosed one from
t Hermann stating that the lands had been
made Special and would be considered lm-
medlately.
. During the latter part of 1903 the Una
jhad made an agreement to appear before
ethe department in Chinese cases In regard
to the action of Federal officers here in
arresting Chinamen Illegally. In Fcb
2,rcary. 1904, the firm had been employed
" to appear before the department !n regard
-to the detention of the wife and on of
Lte Sue, and their threatened deporta--tlon.
Mitchell was very fearful lest his
''name be mentioned in connection with
f-lh brief filed In this case, and Tanner
.had assured him that bo had been careful
about not signing the Senator's name to
i ny papers sent to the departments.
i . i nis cunciuura me uircc. uinuaiunn
' - J - V - I - Ji M
3 1 ine wiuicss, uiu uiuu Bujuuruea un
til this morning at 10 o'clock.
JftTili STENOGRAPHIC REPORT
The complete stenographic report fol
lows :
A. H. Tanner on the Stand.
Court met pursuant to adjournment
Direct examination of A. H. Tanner re
sumed. By Mr. Heney: "
Q. Judge Tanner, hand you Govern
exhlblt No. 59. the letter which was last
read in evidence and which you Identl
fed as In the handwriting of Senator
Mitchell. Did you ever receive that let
ter? f
A. No. sir: I never did.
Q. This letter, saya: "Yoor friend with
letter did not arrive hore until today.
Your letter only received at $ P. M." To
whom does that refer?
A. That refers to mv brother-in-law,
Mr. H. B. Miller going East at that time
and who took a letter for me to the Sen
ator. Q. Did you keep a copy of that letter?
A. I did not.
Mr. Heney: I will nsk counsel for the
defendant If they are willing to produce
the letter?
Mr. Bennett: I do not think we have It;
I am not sure.
A. 1 can explain why I did not keep a
cow of It If you wish.
Q. Yes.
A. Mr. Miller took dinner with me that
evening and was about to start East, and
I wrote the letter at my home In pencil,
and gave it to him. asking him to hand
it to the Senator. For that reason I did
not make a copy of It.
Q. Can you state the subject of the
letter?
Mr, Bennett. We object to that as Im
material and incompetent.
Mr. Heney: This retter Is In answer to
the letter which was font to Senator
Mitchell, so that It constitutes a conver
sation between the Senator and this wit
ness In relation to this matter.
The Court: Are you golHg to follow It
up by proof that the defendant received
the letter?
Mr. Heney: He states so In his letter.
"Your friend arrived with letter. It was
received at 2 I. M. today."
Q. Did you tend any other lcttor than
that one?
A. Not by any friend. I wrote him by
mall a time or two.
Q. But this is tne only one you sent by
a friend? and that was sent with ref
erence to that date of this letter, at what
time?
A. What is the date there?
CJ. This Is dated February 5. 1905.
A. That must have been sent about the
1st of February, I should Judge.
Mr. Bennett: May it please your honor.
I do not understand that the mere fact
that he sent a letter to Senator Mitchell
makes his unsworn statement in that let.
ter evidence. There Is nothing in this
letter in the way of answer to that let
ter sent, or with reference to that, except
the mere mention that he had received
the letter.
The Court: Has this letter been Intro
duced in evidence?
Mr. Heney: lea. your honor.
The Court: Do you claim it Is neces
sary to have this In order to know what
that letter Introduced in evidence means?
Mr. Heney; Yes. that letter was In
answer to the letter of Judge Tanner,
and It was a conversation between them
with reference to this transaction, and to
show the meaning of this letter U is nec
essary to know what was in tho letter
of Judge Tanner.
Mr. Bennett: 1 would like to have your
honor read this. I do not see how It can
be material. There Is nothing In this
letter, unless it is the first clause, that
needs any explanation.
The Court: It is possible there may
have been something in that letter that
would throw light upon two or three sen
tences In thus letter, but I do not know
what It Is that counsel expects to prove.
There arc two or three sentences there
that might possibly be explained by some
letter. I will overrule the objection.
Mr. Bennett: I would like to Interpose.
In addition to that, the objection I do
not think I made my objection cover
everything I want to object on the
ground that It is Incompetent, and second
ary, and that no sufficient foundation
for secondary evidence has been laid.
Objection overruled. Defendant excepts.
Q. You may state the substance?
Substance of the Let ler.
A. I am not able, at this time, to re
call all the letter, but It was recounting
what had occurred up to that time In
the investigation of the grand Jury. And
I told him. among other things, that the
Government had compelled Kribs to give
up the checks that had been given to the
firm, and that I thought that by means
of those checks they would be able -to
trace the money that had been paid to
the Merchants National Bank into his
personal account, and In that way be able
to show that he had received his part of
the money that was paid in by Kribs,
And. as I suggested, as it occurred to
me. the only explanation left to make
as to that
Mr. Bennett I submit to Your Honor
that it is perfectly apparent that that la
HARRY MURPHY'S
not explanatory of anything that was
contained In the letter of Senator
Mitchell.
Q. This was In the letter, was it?
, A. Yes.
i The Court So far. I have not heard
anything that has any bearing on the
case.
. Q. Proceed.
A. (Continued.) Would be that he had
received this money In the nature of an
overdraft or any overpayment of his ac
count with the firm, to be accounted for
in same way upon final adjustment of our
partnership matters, something of that
kind, some suggestion of that kind. I
cannot recall anything else that was in
the letter particularly.
Mr. Bennett We more to strike It out.
xour Honor.
Mr. Heney If Your Honor pleases, this
letter states. "Now. Judge, you will agree
with me. I am sure, that these are th
facts and I am also sure whatever en
tries you made, you never intended I
should have any part of such cash or
checks, if any. and that you Intended
that in some way. In settling accounts
between us. no part of any such moneys
or checks would be mine, but your In
dividual property."
The witness has testified to a conversa
tion between him and the defendant In
which they arrange a plan of defense
which was followed. It is always compe
tent to prove such a plan of defense.
Now. then, this was a continuation of
the oral agreement by a written agree
ment in regard to that matter. If they
had been together, if Senator Mitchell
had been here, and Judge Tanner had
stated orally at any conversation that
they previously had in the manufacturing
of this defense, that this would be the
war to get around It, certainly that
would be competent evidence. Now. the
fact that it occurred in writing, that Mr.
Tanner suggested this, telling, him the
facts which made it necessarv. to wit:
that Kribs had surrendered the checks,
and then the -defendant comes back with
this letter, telling this witness what he
Is to testify in relation to that matter,
preparing and manufacturing this de
fense, certainly it Is competent evidence.
It seems to me.
Mr. Bennett Now. If Your Honor
pleases
The Court I do not care to hear any
argument on it. I think the testimony
should be .stricken out.
Q. This letter contains the statement,
"You will remember several times I cau
tioned you not to mix mo up In any way
with any Land Office matters." Did you
ever have any conversation with Senator
Mitchell in relation .to that?
A. Nothing more than he said on some
occasions that he never wanted me to
make any contracts or to take any fees
for any services which he might do per
sonally In any of those matters, but there
was never any objection made to my do
ing work of this kind and taking cases
of this kind and prosecuting them and
charging for them, never In tho world.
Q. "Why were not all of the fees for
this work credited to Senator Mitchell
under that partnership contract?
A. For the simple reason that it was
work that was done here. The contract
was made hero and the services per
formed by me mainly. And not consid
ered as coming under the clause of the
contract giving him the fees for any
thing he might do or might inaugurate
or Initiate there himself In Washington.
I had nothing to do with that: never pre
tended to have anything to do with any
matter of his. no service there in the de
partment or in the" Supreme Court.
? dd you next see Senator
Mitchell?
A. You mean after he went East the
last time?
Q. Yes. after he went East about the
first of January. 1905? .
A. I saw him. I think, three or four
days after he came back here. In March
last,
Q. Did you hve any conversation with
him at that time, with reference to that
case?
A. No. sir; nothing to speak of.
Q. Did you at any time thereafter?
A Vn. Tint tn cn Intn n n v Amt-, IT. r
. course I met him; he came to the office
two or three times and we had our busl
I ness matters to talk over and divide up
i the library and business, and I met him
In that way a few times, but there was
. no detailed convex-ration at any of those
meetings, about any of these matters.
I Q. Did you have any intenUon as
I stated in this letter, or express any in-
tention. of getting back the portion of
. the money that was paid to Senator
Mitchell out ofUhese fees?
i Objected to as incompetent. Objection
' sustained.
Q. Now. I call your attention to the
first page of tho day book of the firm, at
page 223. I will ask you to tate whether
you ever had any other agreement with
Mr. Kribs with reference to land than
those about which you have already tes
tified? . A. Yes. I did.
FACILE PEN' DEPICTS FACES SEEX AT
Q. When was it?
A. About December 3. 1902.
Q. What was that ngreexnont?
Mr. Thurston: We object to that as
not tending to prove any charge of the
indictment, being asked with rcierence to
a matter entirely outside of the case at
bar. Irrelevant and Immaterial.
Mr. Heney: This Is offered at this
time. If your Honor pleaRis. as a similar
tranractlon occurring prior to the pay
ment of the Ia?i CuO check, relating to
the transaction in the Indictment, and
offered for the purpose of bow!g knowl
edge on the part of the defendant of the
receipt of the former monies. I under
stand the rule to be that such evidence
Is competent, after the fact has been
proven that the defendant did do the
thing alleged but denies knowledge. The
attorneys for the defendant announced
In this case in their opening statement
that the defendant does and will deny
all knowledge of the receipt by hlra of
any of these monies. We think we are
eniuiea 10 enow an f.mnar iransacuora
which may have occurred at any tlmo
prior to the last payment upon these
contracts, set forth In the indictment
and the last payment set forth in the in
dictment as facts having a tendency to
Firove knowledge on the part of the de
endant: and If your Honor desires to
hear authority on that. I have them here.
The Court: I will hear argument on
that point.
Argument on Evidence.
Mr. Heney: I read from WIgrnore on
Evidence. VoL L Section 300:
"In the two foregoing chapters have
been examined the principles upon which
knowledge, intent and design may be '
Cvmcncca. n remains 10 examine acre
the admissibility of similar offenres or
acts (1. c. similar to the one charged),
offered for the purpose of showing such
knowledge. Intent or design. Since the
conditions may differ under which the
same conduct will evidence one or anoth
er of these propositions, it i? essential
to compare the respective condition? be
fore determining what test to apply to
the offered eldence. Practically, the
difference of theory may be Important:
for if these conditions are less stringent
for one purpose than for another, and If
the one purpose is by the nature of the
Issue a proper one. while the other Is not.
all will depend on the precise purpose
Involved and the requirements appropri
ate to it.
"It Is worth while at this point to re
state . briefly the distinction between
knowledge. Intent and design. (1) Knowl
edge signifies a being aware (ante. See
244); ana. In the usual case of the present
sort, this knowledge has to refer to the
nature of a thing used in the alleged
dime. Even where the doing of the act
involved is not disputed, a knowledge
existing at the time of the act may be-In
dispute. Thus, proof of knowledge be
comes a usJal necessity for certain of
fenses, such as the uttering of forged
or counterfeit paper and the possession
of stolen goods; while It is rarely an ele
ment to bo proved In other offenses, such
as robbery, rape and homicide. (2) Intent
involves often nothing more than knowl
edge or hostile feeling; or. what Is prac
tically not very different, if knowledge or
hostile feeling (malice) can be shown
specifically, there may be Inferred Im
mediately the criminal Intent, without
further evidence. But intent more fre
quently signifies (ante. Sec. 242) merely
the absence of accident. Inadvertence of
casualty a varying state of mind which
is the contrary of an innocent state of
mind, whatever may be pointed out by
the nature of the crime as an innocent
tate of mind. Thus, in homicide the
criminal Intent may signify the absence
of good faith as to self-defense or the
absence of inadvertence; In assault with
intent to rape the criminal intent is a
design to rape. Instead of any other de
sign; In embezzlement, the criminal In
tent Is a will ta hold the money unlaw
fully, as distinguished from a will to
hold It for the owner or from a merely
Inadvertent possession. This element,
then, of Intent simple In its generality,
vet changeable is a different thing from
knowledge. In a given offense as In ut
tering counterfeit money the proof of
knowledge may practically affect the
proof of Intent: but In such a case the
evidence Is directed specifically to show
knowledge and Is governed by the rules
appropriate to the subject. But If the
Issue does not Involve specifically the
element of knowledge, then the rules
about evidencing knowledge have no ap
plication. In short. Intent may some
times be directly got at by proving
knowledge: but this Is not necessary nor
is it (for most kinds of offences) usual;
and since in any case Intent may be con
ceived of apart from knowledge, the
mode of proving Intent Is a problem dis
tinct from that of proving knowledge,
even where the latter la also concurrent
ly available. (3) Design. The peculiarity
of intent, as a. factum probanduro, is that
aa act Is assumed as done by the defend
THE MITCHELL TRUL
ant, .and the issue Is as to the kind of
state of mind accompanying It. Design,
or plan, however (with reference to pres
ent bearings). Is not a part of the issue,
an clement of the criminal fact charged,
but Is the preceding mental condition
which evidently points forward to- the
doing of the act designed or planned,
(ante. Sees. 237. 242.) Thus, the peculiar
ity of design Is that the act is not
assumed to be proved, and the design
Is used evidentially to show its
probable commission. It Is obvious that
something more definite and positive Is
here Involved than In the case of In
tent. In proving Intent, the act Is con
ceded or assumed; what Is sought to the
state of mind that accompanied it. In
proving design, the act Is still undeter
mined, and the proof is of a working
plan, operating towards the future with
such force as to render probable both the
act and the accompanying state of mind.
The intent Is a mere appendage of the
act: tho design Is a force producing the
act as a result.
Sec. 3W. Theory of Evidencing Knowl
edge. In resorting to former offences or
other similar acts to show knowledge, it
is sufficient to Invoke the general prin
ciples of proving knowledge, as already
set forth. It may perhaps be practicable
to employ acts of conduct as exhibiting
a posteriori the inward state of mind
(according to the principle of Sec. 2t.
ante) as when a person finding bis coun
terfeit coin closely examined by his ven
dor, attempts to run away. But such a
case presents no problem of the present
sort. The problem now to be dealt with
the use of evidence of former offences
Involves the other general mode of show
ing knowledge, namely, the use of exter
nal circumstances likely a priori to have
produced knowledge. It has been seen
(ante. Sec 245) that this mode of proof
rests on the following process of thought:
When the fact X Is used to show a per
son's knowledge of the fact A. It Is as
sumed (a) that through fact X there
probably was received an Impression by
the person; and (b) that this impression
would probably result In notice or warn
ing of fact A."
Tnerefore. If we can brlnjr home to
the defendant In this case absolute
knowledge cf other similar cases In
which the firm accepted the employ
ment and he received a share of tne
fee.-, we may fairly, reasonably and
logically assumo that that would bring
to him an Impression whlcu would
prove the result In notice or warning
to examine the books to see whether
there were any other occurrences of
that kind taking place, and that he
probably therefore would have known
about Jt,
"Thus, (a) a prior Injury to an em
ploye by a machine would probably
have come to the employer's notice in
some way, and (b) the notice of the ac
cident would probably reveal to him
the defect In the machine. These two
elements may not both be doubtful in
a given case, but they are always im
pliedly present if the inference Is to
nave any validity. Apply this to the
class of cases we are now concerned
with. Suppose A's knowledge of the
poisonous nature of a substance X is
to be shown; suppose the fact offered
that he once gave it to a sick dog and
that tne dog died; if we are to base
an inference of probable knowledge
upon this, it Is because we believe it
probable (a) that toe dog's death came
to his nqtlce. and (b) that
the fact of the death would suggest
to him that it was the substance X
and not the illness that caused tho
Jog's death. Again, suppose A's
knowledge of the counterfeit nature
of a certain nllver dollar is to be
shown; suppose the fact offered that
he twice passed counterfeit ten-dollar
banknotes; If we are to base on this
an inference of probable knowledge,
it Is because we believe it probable
(a) that In the course of the using
of banknotes, at one time or another
up to their final disposal, some one
probably doubted to him their gen
uineness, and (b) that a doubt .as to
the genuineness of the banknotes
would probably suggest a doubt as
to the genuineness of the silver dol
lar. Again, if A's knowledge of the
stolen character of a bar of Iron Is to
be shown, and the fact is offered that
he has also received and possessed a
stolen bicycle, then our Inference must
assume (a) th3t A's receipt of the
bicycle was under such circumstances
as to ugst to Its vendor or pledger
to be a thler. or as to result In a re
clamation by the owner and a warning
to the defendant; so .that (b) when the
bar of lrop was offered to A. by the
same or another vendor or pledger,
the circumstances were such that the
former transaction would naturally
suggest that this bar of iron was also
stolen.
"Such, then, la the strict aad legiti
mate scope of evidence of other sim
ilar acts to show knowledge. The
process of thought Is: The other act
must probabiy have resulted In some
sort of warning or knowledge; this
warnli.s or knowledge must probably
have led to the knowledge in question.
There may occasionally be a logical
'short cut or a condensation of this
process as where A. at a former at
tempt to pass the same counterfeit
bill, was expressly told that it was
counterfeit but such cases cause no
difficulty, and the difficulty that does
arise can always be accounted for by
a doubt as to one or the other of the
above two elements. The principle Is
clearly enough seen In its aoDlicatlon
in tne detailed rules of the ensuing
sections; but It has also been ex
pounded, more or less Incompletely,
in various Judicial utterances."
Now, If Your Honor pleases. If we can
show that during the time of these
transactions, a large number of similar
transactions took place, wherein this firm
did business of a similar kind for other
people, and that the fact that this firm
was doing this business for the other peo
ple is Drougnt name to the defendant by
convincing nroof. and it is shown that iie
knew that during this period of time ex
actly similar deals were being made with
this firm, and that he was receiving one-
nan me proceeds or tnat Business, does
it not tend to establish a warning to this
defendant to examine the accounts ren
dered him or to inquire as to where the
money came from which he received, as
has been shown, out of these Kribs
checks? It is because these facts tend
to raise an interest of the probability
that he did acknowledge that they are
competent evidence in this case, as It
seems to me.
Mr. Thurston's Argument.
Mr. Thurston: If the court please. I am
entirely familiar with the facts that In
two classes ot cases in tni3 country evl
dence of other similar acts has been ad
mlrted. One is In the passing of counter
felt money, where other nasslnc of coun
terfelt money Is admitted-to show guilty
knowledge of the bogus character of the
coin or bllL But even In those cases it is
admitted because the fact that the de
fendant had in his possession at other
times similar bad coins or bills. Is a mat
ter that tends to prove that he knew that
tne coins or tee bills were bad. Also In
some states and courts, .but not in all.
proof has been permitted in the case of a
person charged with receiving stolen prop
erty, 10 snow inai ai me time ne nad
other stolen nronertv In his Dossesalon.
But up to the present time I have never
Known or a case. J. nave never read of one
and If there are any. I would like to havo
them presented, so that I may examine
to see as to their authority where the
proof of the commission of another simi
lar offense of any kind or character has
been cermltted when a defendant was
being tried upon the one with which he
Is charged. The theory of the law is that
it is enougn tor a aetendant to be com
celled to meet one criminal charare with
out forcing upon him in that trial the
onus of being prepared to meet with tes
timony and evidence of another criminal
charge. And all they are offering to prove
here Is a fact tending to show alone sim
ilar lines with this case that this defend
ant did at another tlmo commit another
similar misdemeanor under the statutes
of the United States. And if this evidence
goes In, It throws the burden and respon
sibility upon nun oi aerenamg against the
omer cnarges 10 me same exieni ana as
fully as he must defend against this one.
l tninx tnere nas never oeen a decision
bv a court of good authority In this coun
try "that such might be permitted. The
very authority the gentleman cites, at
section CCO. says:
"This proof of. knowledge becomes a
usual necessity for certain offenses, such
as uttering a forged or counterfeit paper
and me possession ot stolen goods, while
it Is rarely an element to be proved In
other offenses, such as robbery, rape and
homicide." And In the absence of any
authoritative decision worthy of being fol
lowed by this ' court. I submit that It
would De a uanserous departure, ana oe
the doing of a grievous wrong to this de
fendant to now put him upon trial for
any other offense than me one witn which
he stands charged In the Indictment.
Mr. Heney: if Your Honor pleases, em
bezzlement as proven irom tne oooks is
a crime very similar In Its nature of proof
to that which is now on trial here and
It in well settled and universally held that
in an offense of that kind you may show
other entries of a similar character upon
the theory that one entry In the book
showing an embezzlement might havo
been made by Inadvertence or mistake.
That If there were two entries, tho prob
ability of mistake ia lessened. If three
entries, it Is still more lessened, and if 20.
entries it Is far more lessened. So in this
case. If we could show that the general
course of me ousiness or mis nrm was
to do exactly what "was done In this case,
the probability that the defendant had no
knowledge, ot the source of this- money
which he received would be lessened to
an extent where no one could question the
fact.
There are many cases to whleh thu rule
applies. There is but one suggested.
mouse me oooks are tun ot tnem.
and this book Is full of them. I did
not wish to take un too mnrt time in
reading authorities, but under section 303
I desire to read the following:
3Ir. Heney Cites Cases.
Cusblng. C J.. In State vs. I.man- ST '
N. H.. 24a. 294: "Another class of case con
sists of those In which It becomes neces
sary to show that the acts for which the
prisoner was mcuctea were not accidental,
e. g.. where the nrlsoner had shot the
same person twice within a short time,
or where the same person had fired a rick
of grain twice, or where several deaths
oy poison had taken place In the same
family, or where children of the same
mother had mysteriously died."
That first class Included among those
which in the first section says It Is rarely
neccssary to resort to mat evidence for
the purpose of showing knowledge, but that
does not mean mat it is not necessary
sometimes. It is necessary whenever the
fact Itself is proved to havo been com
mitted, and the sole question left to deter
mine is me question as to whether the de
fendant had knowledge or not, and It mat
ters not what sort or a case it is that mat
question arises in. whether a civil cause,
or in a ouestlon of character or criminal
action.
"In such a case It might well haDDen
that a man should shoot another acci
dentally, but that he should do it twice
within a short time would be very unlike
ly, so it mignt easily happen tnat a man
using a gun might fire a rick of barley
once by accident, but that he should do it
several times in succession would be very
improDabie.
bo. a person might die of accidental
poisoning, but that several persons should
so die In the same family at different
child should be suffocated In bed by Its
mother might- happen once, but several
similar deaths In the same family could
not reasonably be accounted lor as acci
dents. So, too. In the case of embezzle
ment effected by means of false entries;
a single false entry might be accidentally
made; but the probability of accident
would diminish at least as fast as the In
stances Increased."
So in this case. Senator Mitchell might
have received this money without knowl
edge, if it nad only occurred in one in
stance; but as rapidly as the Instances In
crease In number, the probability of his
having received It without knowledge de
creases. Reason for Elimination.
Mr. Bennett: Might I say a word. Your
Honor, before the court passes on it?
What I would like to say refers more to
what seems to me to be the natural rea
son of a rule ot this kind than the au
thorities, because I confess that I have
not carefully examined the authorities. To
my mind the question in matters of this
Kind must always be to some extent witn
In the discretion of the court. In the very
nature of things, because It denends UDort
uncertain conditions, remoteness of the.
evidence, remoteness or the mierence to
be drawn by It. and on the danger of the
defendant from the admission of that
kind of testimony. I take it that the rea
son why other offenses are not always
admissible is not because they do not
always tend In some degree to make proo
able. and thereby to make one step m
the proof of the particular offense: be
cause I sUDDOse it Is true as a matter of
doglc that there Is no offense with which
a man might De cnargea. mat it you couia
firove he had .committed It or some slml
ar offense at some other time, there
would not be some logic tending to make
It somewhat more probable that he had
committed the particular offense under
consideration, and therefore It is not be
cause there is not some tendency in these
things to prove the offense under consid
eration that they are eliminated. The
reason they are eliminated is because that
tendency may be so remote and the dan
ger to tne defendant so great and the ob
struction of Justice In the way of delay
ing trial so great that the courts do not
ordinarily, and except as has been said
here, in extreme and exceptional cases,
permit evidence of another act of the
same kind. A man. for Instance, Is-charged
with stabbing another. He says It was
accidental. Would any court tolerate
proof that he had stabbed another man a
year before, or several years before? Not
because it might not tend to show in
some degree that this particular stabbing
wasnot accidental, but because the dan
ger of proof of that kind would so over
balance and open up In every trial a vast
number of collateral matters, are elimi
nated. Prejudicial, Says Bennett.
The charge here Is that certain fees
wer taken for certain services. The fact.
If it was a fact, that in -a similar matter
other fees were taken by the firm and
divided, the tendency to show that the
defendant knew in this particular case
that he was getting something that ho
ought not to get would be exceedingly re
mote and conjectural, even If they were
approximate In time. But, as a matter of
fact, I understand that this which they
are trying to prove now happened a year
or more before the matter alleged In the
particular count which they are trying to
sustain by this evidence.
Your Honor has heard the opening state
ment of the attorney for the United States
In which It is Intimated that they have
some eight or ten of these matters that
they desire to Introduce evidence regard
ing. It has been well said by my Brother
Thurston that if evidence is introduced
concerning them, each will require its own
careful Investigation. It puts the burden
upon the defendant to explain each one.
as he does the name Issue In the case. If
he does not, he Is. perhaps, met by the
fact that an Inference would be drawn
from some other thing that If fully inves-f
tlgated would be found to be without any
basis from which any just Inference could
be drawn. As Your Honor well knowsA
all these things would tend to prejudice
him In the mind of the jury. And I sub
mit to Your Honor that In these matters
much Is In the sound expression of the
court.
Mr. Heney: If Your Honor will permit
me. I would like to read Judge Story's
statement of the rule In the case of Brom
ley vs. U. S.. Story. Vol. 1, page 125. but
I am reading from the first volume of
WIgmore on evidence.
Mr. Heney then read quite a lengthy, ex
tract from the authority cited, and there
with closed his argument.
Haling or the Court-
The Court: Since this case was opened
by the attorney for the Government and
the opening address to the Jury announced
that it was his Intention to offer proofs of
that character, proofs of other offenses of
a similar nature. I have given a great
deal of examination and thought to the
question involved. It is, of course, a gen
eral rule when a man Is put upon trial for
one offense, he Is to be convicted. If at
all. by evidence which shows that he Is
guilty of that offense alone, and that un
der ordinary circumstances proof of his
guilt of one 'or a score of other offenses Is
wholly excluded, but there are certain
well-settled exceptions to this rule. Gen
erally speaking, evidence of other crimes
Is competent to establish Intent, and In
the second place, to establish absence of
mistake or accident. And I have reached
the conclusion, after a great deal of con
sideration, that the question here present
ed falls under the second exception to the
general rule, that evidence of other trans
actions of a similar nature may be re
ceived for the purpose of rebutting any
contention or presumption of mistake or
accident. The rule is this way stated in
some of the cases: When it has been
proved that the party charged did the act
for which he is indicted, and a question
still remains wether he committed it with
guilty knowledge or whether he acted un
der a mistake, evidence which tends to
prove that be was pursuing a course of
similar acts, raises a presumption that ha
was not acting under a mistake, but with
guilty knowledge and intent, and is ad
missible for that purpose.
Defense's Objection Overruled.
In the case of People vs. Searoana. re
ported In 107 Mich.. ZiS. on a prosecution
tor manslaughter in committing an abor
tion, where the proof of the killing was
circumstantial and the effort of the de
fense was that the premature birth was
due to accidental cause. It was held prop
er to receive evidence that the respondent
had performed other abortions In the same
hous and near the same time. I am sat
Isfld that the proof Is competent upon" that
for the purpose of rebutting any presump
tion or contention of mistake, but for no
other purpose. Can be used for th pur
pose of aiding the prosecution In estab
lishing the main facts, with which the de-