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About Morning Oregonian. (Portland, Or.) 1861-1937 | View Entire Issue (July 1, 1905)
6 THE 3I0RXIXG OREGO"TAX,v SATURDAY, JTJX.T 1, 1905. THURSTON MAKES ELOQUENT APPEAL FOR SENATOR MITCHELL . (Continued From Flm rage.) i son. or murJer. or anv other offense I ... .,.......... . , t Bummer from d inent. to secure what his constituents Sui? asking him. to secure for them. 5: . e Mave Eeen colleagues dashing oy In their carriages, with liveried drivers and lootmen on the box. And I have come here because, in my heart of hearts, and my soul of souls. I know, as God has given me to know, the truth, that a Statesman in the 24th rears of his service In the Senate of the united States does not live that way. does not do that way, unless he is an honest man. Long Service His Pica. The District Attorney has said to you, gentlemen of the jury, that a Senator, as such, is not upon trial, and that is true; he has said to you that this man is on trial as a man. and should be tried toy you as you would try any other man. and that Is true. But, gentlemen of the Jury. I want to say to you one thing if you are ever placed on trial under un fortunate circumstances for a criminal charge 1 want to ask you whether the jury should consider your case exactly as if it were the case of some other man whose life had been different from yours. I ask you if the long years of faithful service to your country and your state and your God wouldn't be evidence bafore apy Jury in the known world; wouldn't be evidence of your honesty against a criminal charge. Wouldn't it. at least, be held in the minds of the jury as making a reasonable doubt against your failure of honesty in the closing days of your life? I tell you. gentlemen, that char acter which has been built up by men. like the characters which you have built up in your long years in the State of Oregon, among your friends and your neighbors. 1 tell you that character that Is built up and that has had the sanction of years of efforts and of honesty, ought to stand a man in stead when he goes be fore a jury of his fellow-citizens on a charge like this: and 1 tell you that no man with an honest, honorable life be hind him is to be tried the same by the jury, or considered the same by the jury, as if he came before you with a history of crime and a record of dishonesty. This old. broken, suffering man has only a little while to remain among us; is al readv in the valley of the shadow of the evening of life, and he has only got a little ways to totter until he comes to the river and the end. But, gentlemen of the jury, what means more than life or death to him Is whether or not you dhall write on the simple slab that marks his resting place when he is gone Guilty. Dishonest and Dishonored. That's all h has got left to live for and to look tor ward to. as to what wsterltv will write on that little gravestone In the church- ! yard. All he has got left to live for and look forward to is as to whether or not his children, when he Is gone, can point with pardonable pride to the record of their father. All he has got left to live for is to know that that little grandson, born since this trial began, in a foreign capital, when he first commences to babble and talk, can be answered honor ably, proudly, when he asks. "Who was my grandfather?" That's about all. Speaks for Oregon's Good Name. But you are asked to defend the fair name and fame of Oregon, and you will, for you are Oregonlans, and I listened to your testimony here when you were being examined for places on this Jury; 1 heard with gladness that every nan on this jury had spent long, long ., ears in this great frontier state of Oregon: that you had been a part of its history; that you had as sisted in its development and growth, and that you necessarily had at heart the honor of Oregon as no District At torney from California could have as no attorney for the defense from Wash ington could have. No man need teach this Jury of Oregonlans what their duty is to Oregon. Her honor is In your hands, and 1 join with the District At torney in asking you to see that her honor remains unsullied. But. gentle men of the Jury, the iionor of Oregon don't depend. upon placing the brand of shame on tne one man who has been her most distinguished public servant. The honor of Oregon don't demand that a verdict' of guilty should be rendered in this case. The honor of Oregon is at stake. The honor of Oregon has been assailed in" the grand jury room, be hind closed doors. In the darkness and away from the light of publicity. Ore gon has been assailed. Thank God, we are in the light of day here in a Court of Justice, where men can be met face ! to face, and the power of the District Attorney in ths secret chamber of the grand Jury room cannot compel men to cast shadow and sname upon the honor of Oregon. The honor of Ore gon will be safe when this jury says to the world that John II. Mitchell is not guilty of the offense with which ne stands charged; nere. it does not mean the conviction under indictment of three out of four of Oregon's favor ite sons, chosen because of long ser vice among you; chosen by you because you t nought you understood human character and men. The honor of Ore gon does not depend upon your taking three out of tour of your representa tives from the Congress of the United States and sending them to the penl renilary. The honor of Oregon rests in the honesty and strength of tnis jury to withstand the Importunities and arraignment of the District At torney in this case and make a rec ord for the world that the State of Oregon has not fallen low in its last days, and that Its representative, chosen in honor, in r.onor remain your representatives. Talks of Scapegoat, 1 regret very much, gentlemen of the jury, that the suggestion has been made to you that the great Govern ment of the United States is demand ing the conviction of this one poor man. It is not true, and if It were It would be a disgrace to any administra tion of the Government of the United States.. Gentlemen, way back In bar baric times, when men were cruel anJ rude, before the milk of human kind ness had ever yet been developed in the human breast, the great Jewish nation, once, every year, called their tribes together and assembled all their herds and tnelr flocks, and then, out of their herds and their flocks they selected one animal, and on that one animal they bound the sins of Israel, and then with scourging and lashing they drove that animal off into the wilderness that the sins of Israel might be lorgiven. But, even In these old barbaric times, when kindness was unknown among men. tney never nicked a little ewe lamb, nor an old limping goat; they didn't attempt to put the sins of Israel on the lamb, or on the old crippled, helpless animal: they picked a billy goat; a big, sturdy, strong- billy goat to put the sins of Israel on, and they scourged him into the wilderness to relieve Israel from , ner transgressions. Gentlemen of the I jury, the United States of America, in i its administration, is far more humane I and enlightened than were the tribes of Israel. The Government of the i unuea aiaies in seeKing lor a victim is not seeking for a victim in the per son of this old, broken, suffering man. If the District Attorney wanted a vic tim to show to the world that the United Slates of America would re lieve herself from graring ip public places, why in the name of God didn't you turn loose on the billy goat In this offense, instead of letting him go scot ! free, that you might tear down from I high place tne nonorea old representa tive of the State of Oregon.- that the reputation of the District Attorney for success and achievement might" re sound in the arches of the world. Speaks of Horse Sense. And now. gentlemen of the jury, for a little- while. I will talk to you 1n the dryest sort of way about what you are to try in this case, and what the testi mony is; I am going to get right down now to talk horse .?ji-e to you. I tnink we are all that kind of people; we like horse sense. I want you first to consider what this man is being tried for. That indictment you will take into tne jury room. The Court will give it to you. I want you to turn over from one count to another and get it fixed right down deep in your minds what he is being tried for. This de fendant may have been guilty of trea son to his country, although I don't think he has; ne may have murdered 16 or 18 people in tne course of his natural life, although I don't believe he has; he may have violated all of the ten commandments and run coun ter to every injunction in the Deca logue, but I don't believe he has; any way, you are not trying- him for trea son, or murder, or any other offense except the one stated in the indict ment. Let me go a little further, gen tlemen of the Jury. You are trying him in this case for a purely statutory offense; if he has committed a crime it is a technical crime; it is an offense that don't necessarily Involve any moral turpitude or any badness of heart: it's a mere statutory offense. If he had stolen public lands in Oregon by the use of false affidavits, the .mak ing of which he had encouraged and arranged for, that would have been a crime, a felony. Involving- moral turpi tude and natural badness of the human heart, but here Is a mere technical offense. The District Attorney jumped with a protest when Mr. Bennett sug gested tno other day to this Jury that the punishment for this offense was both fine and imprisonment. It is both fine an J imprisonment, but that amounts to but little in comparison with the awful penalty of this statute tne awful penalty which attaches under this statute the one more ter rible than to be hung by the neck un til dead; the one more terrible than to spend the last few years of life in the penitentiary. Is that punishment, under tne statute, whleh makes your verdict deprive this man at once and forever of the right to hold any office or po sition of trust under the Government of the United States. I tell you. gen tlemen, that I agree with the District Attorney that this is an important vase; it involves more than life, more than the penitentiary. It Involves everlasting disgrace and dishonor, and deprives the convicted man of the right, the greatest right, the dearest right of American citizenship, to hold office of honor, profit or trust, with tho consent of his fallow-citizens. That is why this Is a great case, and that's the only reason why it is a great ca.ee. Takes Slap at Kency. Gentlemen of the Jury". the masterlv and misleading argument of the District At torney has covered a very wide range: I venture to believe that when he concluded his argument you didn't know whether he wanted you to convict Senator MItphell under this Indictment or on all the charges that he brought against us. He so mixed up the facts of the case as al leged in this Indictment with other facts: ho so mixed up the charges of the com mission of the crime with what happened afterward that I don't believe he had a clear conception in his own mind as to jwst what it was he wanted this Jurv to find Mr. Mitchell guilty of under this In dictment. Now. you are trying him un der this indictment, and under no other. 1 do not believe that there is a man on this jury so narrow in his mind, so un kind in his attitude toward his fellowmen. so suspicious of human acts that he has any desire, under a charge of a technical offense, to try this defendant for any thing else, whatever It may be, that he has done from the beginning to the end. Gentlemen of the Jury. 1 hope, and I be lieve, that I am appealing to men who love, as I do. to believe all men honest and all women good. I hope, and I believe I am appealing to a Jury of xnv countrv men. although we live in different parts or the country, who love to think well of their neighbors, and who never believe ill until the absolute proof of wrongdoing is forced home upon their minds. I hope and 1 believe I am speaking JLo a jurv who will take Senator Mitchell's character in the Jurybox and hold it there that char acter which lived and grew In the sun burst of nubile scrutiny. I hope and I be lieve I face a Jury who will take that character Into the box gladly and willing ly, and will never be driven away from their conviction that that character Is his safeguard and his defense, unless you are forced to by the overwhelming certainty of the testimony In the case. Says No One "Was Injured. Now. gentlemen. I want you to remem ber one thing- they charge Mitchell with engaging in the business of Influencing Blnger Hermann to expedite and give un due advantage to the Krlbs cntrle. That Is charged. Isn't It? That is all they charge, i want to call your attention, first, to tho fact that none of those entries ever were expedited or given advantage over any other. I want to do that because 1 want to show you that, no matter what has happened in this case, neither the Government nor any citizen of the Gov ernment, nor any other claimant for pub lic lands has ben Injured In the slightest decree, or has been delayed In the -on-slderation and determination of his claims. Why do I say that none of these claims were ever expedited. Mr. Ogden. on the witness stand you remember him I have his testimony here, but you remember it said none of those claims that he testified to aml h identified two lists or three lists) were expedited in the office of the Commissioner of the General Land Office. Mr. Hermann, and were not placed in any other position than the one where they belonged in the ordlnarv course of busi ness. They were not expedited or ad vanced; no favoritism was shown to them; no action was had in reference to them, except such action as took place in the ordinary and orderlv conduct of the affairs of the department. He tells vou that they were not expedited, but that finally they were sent for by the Secretary of Jthe Interior, who took them from the General Land Office and passed upon them himself. But Is there any charge In this indictment Is there a word of proof Is there any allegation that Senator Mitchell had anything to do with that ac tion of the Secretary of the Interior? It is not charged in the Indictment, and It Is not proven, and It Is not true. The other man. Mr. Casey, testified as to the other lists, that, although Binger Hermann, the Commissioner of the General land Office did Indicate his desire that they should be made special, thev were not made special And. gentlemen, I want you to remember that, because they are attempting to make you believe that the Government of the United States has been grievously wronged: that something has been done by Senator Mitchell to place these claims, against the. claims of other men, and that your private citizenship has been set aside until the demands of the great forest grabber from Minnesota have been at tended to. I want you to remember, right at the start, that not a single claim spe cified In this indictment was expedited, or was given any undue advantage, or that anything was done In the. General Land Office that indicated that Senator Mitchell had unduly moved the Commissioner of the General Land Office to perform his duty in any other way than he would have done If Senator Mitchell had never seen him, and had never wrlitm a letter to him. His P;ea for Mitchell. 1 want you to remember another thing that it stands confessed in this case that, so far as Senator Mitchell was concerned, he was advised and believed, from start to finish, that every claim that he was asked to take any action about was an honest claim: that he was advised by his partner. Tanner, and by Kribs in the onlv letter Kribs ever wrote to him. that these were honest claims. And I want vou to remember that from first to last. Every thing he did. everythlnc- he said, was based on that information and belief that every claim was honest and fair; that every claim must go through the Land Of fice, and that the only thing from begin ning to end that was being sought was to put through honest claims with expedi tion: that Is all. And I tell you. when you search this evidence for any evidence of rottenness in this man's heart, for any evidence of a disregard of his constitu ens, for any evidence of a desire to help himself at the expense of the people of Oregon, or of the country, you cannot find a line, or a word, or a comma, in the evi dence to justify that thought. Now. gentlemen, being charged with a technical offense. I hope I will not be criticised by the District Attorney, whose charming conduct of this case has so es sentially endeared him to me. if Jn the first instance, and before I proceed to a further discussion of the testimony. I present to you what might be: termed in some other .cases technical questions in regard to the Indictment and the proof. I say what might be termed technical questions, berause. gentlemen of the Jury, there is no such thing as a tech nical question in the matter of the de fense of any American citizen charged with crime. Every rule of law that has been built un and throws its shield of protection around an accused man. giving him the benefit of the advantage of what ordinary people call legal technicalities, is a real, living bulwark, necessarv for (he protection of the lives and liberty of men against unfortunate circumstances or unjust assault. Every one of them is the growth of the sober, sound, conscien tious thought, experience and action of generation after generation of cW Anglo Saxon sires. In a criminal case, there is no such thing as a technical defense. Every defense that the law allows to an accused is a real defense, necessary to t EX-SENATOR JOHN protect men and women from being un fairly and unjustly convicted. Then, gentlemen of the Jury. I proceed to this proposition: In every criminal case the prosecuting officer who is before the grand Jury has a duty Imposed upon him under the law to frame an indict ment charging the accused with exactly what he proposes to try" him for. The accused, remember, is not present in the grand Jury-room. There the power and sway of the District Attorney behind closed doors is absolute and despotic. The defendant doesn't know what is go ing to be put in that indictment. The District Attorney does. He Is the only man who hears the testimony: he can frame that indictment to suit his own sweet will, and his own ideas of what he has to prove: therefore, if that indict ment does not charge all that it might have charged, it is no fault of the ac cused, and you mustn't hold him respon sible foi that fact. The District Attor ney, when he frames that indictment, gentlemen, knows that under the law he must stick to tne charge in that Indict- I ment; lie must confine his proof to that; I he must ask conviction, if at all. upon the ! counts of the indictment; and if he Urn- I its them, it is his own fault, and he can- j not ask a jury to voiivka a man unless he proves his Indictment in the strict j manner in which he makes the charges therein. j This indictment charges and I might read what it charges In one" count, for they are similar or the same all the way through. The charge Is that Mitchell re ceived compensation for services rendered and to be rendered before Bincer Her mann, the Commissioner of the General Land Office, and those circumstances as ' charged In the indictment are limited to ! the efforts through Blnger Hermann to j make special, expedite, and approve the said applications and claims recommend- ! ed, etc. And In another part of the In- ; diet ment the charge Is. which runs all the way through, that Mr. Mitchell was to J use his personal endeavors without fol- j lowing the language of the indictment i to seduce Blnger Hermann from the strict I performance of his duty. Denies Guilt of Accused. The District Attorney says that, under this statute, a man may be convicted if he takes money for the rendition of ser vices by himself or another before a de partment of the United States; and that is the provision of the statute. I don't know, because he didn't Indicate in his five hours of argument which he made i in a case which he insisted to this Jury J was perfectly slmpleand clear. In order ' to convince you of Its simplicity and j clearness he didn't tell, so far as I heard, j In anything he said what services Tanner i had rendered in the department, or how I he claimed under this indictment that I Mitchell could be held criminally respon- j slble for anything that Tanner had done, or did. in these cases. I would like to ' hear from the honorable gentleman, if he j claims that Mitchell is to be convicted because of what Tanner did. x what did Tanner do in the department? What he j did outside had nothing to do with It. : The statute Is "for services rendered by ! himself or another In the denattmenL" ! Now. I want you to Just get right down, and stop and think, because I want to eliminate this Idea, right here and now. from your minds that Mitchell can be convicted by you for anything that the evidence shows Tanner did in the case. I want to prove to you that Mitchell stands on his own record, and that you cannot convict him. and rob him of "his ' honors and his laurels for anything that J it Ik proven Tanner "did in this case. In the first place, is there a word of 1 proof that Tanner ever went before Bin ger Hermann? He didn't. He was in Portland. Binger Hermann was In Washington. Tanner never went before ! him. never appeared. ' Next, did he ever write a letter to 1 the department? I challenge the Dis trict Attorney to show you one letter In this record ever addressed by Tanner to i the department at Washington, or to the Land Office, or to Blnger Hermann. There isn't one. " Tanner did not appear In that department, personally or bv let- ter. Every letter in evidence that Tan ner wrote was addressed to Mitchell, and not to the department. So that the case stands, and must stand, on what Mitchell did. iou cannot make him the scapegoat for what any other man on earth did. John H. Mitchell must stand j or fall on his own record. I Did "Write Some Letters. Mitchell did write some letters to that I department, asking the Commissioner to ; expedite those cases; and I am going to j read you. by and bye. what he wrote and ' all he wrote to the department, because I ' tell you that when you take everything . that John H. Mitchell wrote to that de- . partment and put all his requests to- ' gether. you must be convinced that. I whether or not he is guilty of a technical violation of the statute, that he did noth- i lng. nothing, nothing that should cast the ' slightest reflection upon his honestv or his I - .., rj "iuic iu mat department from beginning to end there is not one word or one line that shows that John H. Mitchell was attempting to do anything wrong, anything unfair or Jtt. THURSTON MAKES HIS PLEA FOR MITCHELL that he was asking to secure anything except the fairest and most honest consid eration of those cases In the department which Tanner and Kribs had assured him were straight and honest and fair. I do not insist that it is any defense to this technical charge to say that Senator Mitchell had the purest of motives, and that he asked for nothing except what was right and fair, that he used no intlucnce with Blnger Hermann to Induce him to do anything that was not straight and lion est; but I do say. gentlemen of the Jury. that the fnct that such was the case is one of the strongest elements of proof to " viiiiii'ivu uy yon m una wnviu wiien you come to inn up tne question as to whether John H. Mitchell knowing ly and intentionally violated the statutes of the United States. Another thing: Everything that John H. Mitchell did was done in writing, and went into the public records of the I.and Office at Washing ton, to remain there under the eyes of the officials of the United States forever. Says It Is Beyond Belief. Can you believe that any man. espe- cially a mnn of public experience and af- fairs will knowingly, deliberately, advis-j edly and intentionally put his own guilt on record in the hands of his enemies? Do vou bel eve that a man with the least grain or common sense knowingly com mitting an offense against the statutes of ids country, will spread the proof of that commission upon the archives of the country" record, where the prosecuting officers of the Government may have it before them for Inspection and considera tion forever? Therefore, I say this Jury has a right to believe that Mitchell in the letters h wrote to that department and placed on file there did not think or suppose at the time that he was doing anything except what was right, fair and proper. Oh. but they will -ay. "Well, he did more than writing a letter; he was honey-fogllng with Blnger Hermann at the department personally." That Is what the District Attorney will tell you. Where Is the proof of it? What line of testimony In this whole case shows that Mitchell ever wid anything to Hermann about these cases and you are trying this case on the evidence; I don't care what you might think If you were not trying a man; I don't care what you might believe were the probabilities as to whether Mitchell usod to go down and talk things over with Hermann or not; but where Is tnere a JiS, -St. p i . . v i. did? There isn t one letter that shows It. there Isn t a witness that tells It. Ogden. Casey from the department, never saw him there talking to Blnger Hermann. nor ever heard him say a word abbut these cases; not a witness '".this case has testified that he eer was there. Why Was Hermann Not Called. And. gentlemen of the jury. Blnger Hermann is in the District of Oregon subject to a subpena and demand of tnis District Attorney, who holds his fate, maybe, as he- does that of other men. In the hollow of his mighty offi cial nana: and if .Mitchell had ever at- tempted to persuade Blnger Hermann as charged in this Indictment, to do anything in this' case that was Im- proper or unfair, there Is Blnger Her mann. Mr. District Attorney, subject to your subpena and examination In court. It won't do for you to answer back: "Why. I have got Blnger Her mann Indicted, too. and I am afraid he would not testify the way I want nim to." That's it; It is not a ques- tion of honest testimony, it is a ques- tlon whether a witness will swear the way they want him to. and therefore such was the case, to state It In the In he does not aur- to call him, and, there- dlctment so that the defendant may be on fore, this case stands without a word ' his guard, so that the record will show of proof that JoTin H. Mltcnell ever said one tning to Binger Hermann, or ever tried to Induce him to do any thing unjust or unfair. The District Attorney must know, or believe, that Blnger Hermann would have so testi fied, else he would have had him nere with great speed. He and tne Secret Service officers of the Government have raked the country, as has some limes In slang been said, "as hell was raked with a fine-toothed comb," and tnere Is not a letter, nor a telegram, iior a witness in all this great country that nas escaped tlielrl search and seizure: tney have got It all here. They have not shown that Mitcnell ever en deavored to persuade Hermar i to do anything in these cases by .vord of mouth. Snys (Not a Grievous Wronp. They have not shown that he endeav ored to Induce him to do anything unjust or unfair, and their whole case in that respect depends upon the technical proof that Mitchell, in three or four letters, did ask Blnger Hermann to expedite tho cases and make them special. Not a very grievous wrong. For the officers of the department ten you that when ntnUJ HLHSatedi.W5e f?tfh.?8 1; oth8eCJ-ehcaLia, "i11? SXlfn it i T-in0!?1?' but when It Is taken up for hearing it Is con- sidcred just like every other case, and the request to make a stated case spe- aJ,einoLco .EnM.V.0 lhaaJ IhM be considered In any other way than it would otherwise have been consid ered. It does not carry with it any sug gestion that favoritism shall be shown in determining on the merits- of the case, or that in anything shall be done that does not fully, fairly and completely pro tect the rlgnts of the Government and all its people. Tanner never appeared In the department In any way. personally or by letter: nil his letters were addressed to Mitchell: Mitchell was the only man who went there; Mitchell never asked for anything wrong, he never asked for any- I thing unfair, for anything prejudicial to J the interests of the people of this state nr nip cuuniiy. Kcnurnirn, iuuk ti mat naKed proposition, anu this wnoie case Is robbed, robbed of the charee of any Immorality: absolutely robbed of any charge of Immorality or of wrong doing, except as they claim, there is a technical violation of a technical law. Then If you are trying to convict my friend, this defendant on a technical charge of a technical violation of a techni cal law. I don't want you to quarrel with me because I may make now. for a little and the proof that might ordinarily seem somewhat technical In character. Court His rust Snv Courl ilaS lMSt ba ' r t v n-,. ,u 'ur R V"'S ni' " ' t wish I did. but we always have to wait. the court properly has the last chance. Tl, . I ,V- T..rtrrt f V.o Inn. .1 1 vn,T nre hnnnd tn mice the law in the A as the court clws It to vou. It Is for vou to determine the facts and to apply the law to the facts when you have deter mined them. Therefore, not knowing what the court will charge along the lines of my next discussion. It may be possible that what I say to you on this nnrtioiiiar line win nm he nf anv rwH-ant. age or use. because. If the court Instructs you differently from what I hope and be- lieve he tv-hi heraticte i think it u the law. I may be mistaken then you need not consider any of the argument I make upon the next one or two propositions. There are six counts in this Indictment. and it was the duty of the District Attor ney to embody In those six counts all they had against this defendant It was the duty of the District Attorney to al lege . facts in that indictment that he could substantiate by proof. Now. some i t!mea it js reasoned out by people who I ave nl studied the rules of law and evidence, that if a man is charged with j an indictment with stealing a horse, he , s charged with larceny, and therefore , you convlct him by proving that h J stoie a horae-that a horse Is a cow; but you cannot do it. and it Is not right that . you 8hould. If a man is charged with committinc'a murder bv shootinir a nls- ! tol Into another man. you cannot convict him of murder under that charge by 1 proving that he hit him over the head with a bludgeon and smashed in his skull: and you oucht not to do it: because the District Attorney and grand Jury. In the investigation of every case, knows, in se cret and In advance, what the nroof Is. and It Is their duty to every man. woman and cntl(1 ,n the country, to charge Just ' .wnat thev intend and expect to prove, ' an,j tney have no right to ask a jury to convict unless the proof corresnonds ab solutely with the allegation of the Indict ment. If they charge In the Indictment that Mitchell received compensation by the acceptance of a pig and the proof shows that Tanner got the pig. cut it up and cave Mitchell a couole of hams, vou could not convict him under tha charge : that. he accepted a hog. Why? Because It is the duty of the District Attorney, if ' forever what he was tried for. and that . he may plead it if he Is ever brought to bar again for the same offense. j First and Third Counts. The first and third counts In this In dictment charge that Mitchell received ; money. It charges, of course, that ! Mitchell and Tanner received money, but I need not argue to you that the law is that Mitchell must have received the I money. Of course. Mitchell could have : received the money under this statute by Its payment to Tanner: I want to be perfectly fair: he could have received it under this statute by its payment to Tan- ner. if the testimony convinced you that before Tanner received the money Mitchell authorized him to receive it and I to receive it for tho performance of these services that would be unlawful under 1 tho statute. But, from beginning to end. i there is not one word, not one writing. not one suggestion, as far as the proof Is ' concerned, that Mitchell ever authorized : Tanner to accept any money or anything else for him for the performance of anv service covered by this statute. Is there? Can you tell me what witness said so? Tanner, their witness did not sav so: ! Tanner says. "I did not recsive ft for any of thir, money for MU&'- and he ! he,r onl witness. I shall not criticize ' r assa Mr- Tanner in this case, but ; j want you to remember, gentlemen, that ; for two long hours the District Attorney attempted to make you believe that Mr. had entered Into a combination the besinnlnir with Mitchell to do J the unlaw-ful thlazx, and that ha had governed the character of his written cor respondence along that line. Tanner says no. and he is their witness. Therefore, for two long hours the District Attorney was attempting; to make you believe that Tanner was lying on this witness stand. If you believe Tanner when he says, "I did not accept anv of this money for Mitchell." that Is tne end of any receipt of it through or by Tanner as charging Mitchell with guilty knowledge. Second and Fourth Counts. The second and fourth counts of tho indictment are the same as the first and third, except they charge, as the fact was, the receipt of a check. The Jury was not in here the other day you were properly absent when I argued the prop osition of law that I am now asking you to fit the fact3 to. if the court shall charge you the law as I believe and think it 13. Before doing that I want to say that you must not take what I believe to be the law. to be the law. You must not take what I believe to be the facts and. the proof, to be the facts and the proof. ou have no right to take my judgment. If my discussion and presenta tion of the facts and the proof and the law seem good to you and in line with the evidence in the case, you can consid er what I sav: hut T have nn rirht fn sav to you "this man Is innocent." and ask you to take my word for it or my judg- iment. You are the judges In this case and I am not. Neither has the District Attorney any right to say to you as he repeatedly said. "This man is guilty and ; you cannot acquit him unless you pardon t him for the crime that has been done." He naa no right to say that to you; he Is not the Judge In this case; his Judg ment on the facts Is no better than mine. I may be overpersuaded In the way I look upon the testimony, but if I am. it is out of my love, confidence, honor and re spect for John H. Mitchell. The Dis trict Attorney may be mistaken in his understanding of the facts and the law; we are neither of us Impartial in our con sideration of this case; we are looking at It from our own view of it. and no Juror need take our Judgment or our opinion unless our presentation satisfied you that we have the right view of It. The District Attorney and myself both hope for success. I presume he hopes for It because the announcement through the public press that he has convicted an old, venerable Senator of the United States of a crime, that that notice ringing through the country will add another laurel to the many he has plucked in forensic effort and judicial prosecution. Hopes for a Verdict. I hope fcr a verdict because It would be a sad day in my life, it would be a sad day in the life of every man on thl3 Jury, it would be a sad day in the history of Oregon, and a sad day In the history of my country, when a man who nts done so much and so splendidly for Ms people, his state and his country. Is convicted by a Jury of his neighbors. That Is my only sollcitude. I have grown too old In the practice of the law. had too many ver dicts for me and too many against me, ever to care personally about another. Whatever laurels I have won or lost, they are done with: I am not looking forward to additional ones. I am as I said. deeply Interested in this case, and I may color the testimony in my presentation of It: I may not see.it the way you do. because of my intense Interest In the fate of this man, and therefore I am not a proper Judge of the evidence in this case. You are. And therefore Mr. Hcney is not a proper Judge of the evidence in this case: and when he says to you that if you ac quit this man you have got to do it be cause you pardon him for a crime that Is proven beyond all reasonable doubt. It is the advocate who speaks, and he has no right to tell you any such thing, and you have no right to take his Judgment. "What the Counts Charge. The first and third counts In this In dictment charge that Mr. Mitchell re ceived money from Krlbs. not that he re ceived It from anybody else: $500 on the 13th of February, 1902. and $1000 on the 14th of June. 1902. Just stop and remem ber, gentlemen. I have shown ybu that mat ts not a technical proposition, and have told you why. They charge that he received S5C0 from Krlba In money on tne Jam or i-eoruary. laic; and the third count charges that he received $1000 In money from Kribs on the 14th of June. 1D02. Remember that tho first charge they make In this Indictment Is the charge of February 13. 1902. That first payment In the office here in Oregon on October 16. 1901. is not one of the charges In the Indictment, and you are" not trying him therefor. What does the evidence show? The evidence shows thnt Krlbs '! ?lln3U ft,, hir?Jn i ?ii- S ' Lnrt win in rh-. vnw ir h h nnl .court will so charge ou. If ho does not. :'u.u ne,ed. IV.1 ,con,f ,der.umVIir.slImen5. on this point, that where the District Attor- I did not pay any money to anybody. Now. pey aiieges uie receipt oi money. uescriD lng tho compensation In the indictment as money, he has got to. prove the pay- ment of money. It may be In bnnk bills. or In National bank notes: it may be In silver certificates of the United States or In greenbacks or in gold or in silver, but 11 na3 B?t to bo money; and in my judg ment of the law and as I believe the court will charge you. no other proof will Justify you in convicting Senator Mitchell on the first and third counts except proof that Krlbs paid money, and that the pay ment and receipt of a check was not . money. No court on earth has ever held that a check was money; no charge for stealing or embezzling or receiving money hap ever been sustained In anv : court on proof that payment was made J or that the article Itself was a check: ' and the proof has absolutely failed In this case on these two counts of the lndlctment. Argues for Acquittal. Now, it is not going to make much difference with Senator Mitchell wheth er you throw out two or three or four counts in this Indictment, and then re turn a verdict, if you should, against him on even one of the other counts. I am not making- this argument about these first two counts for the purpose of securing- an acquittal for Senator Mitchell on a technical proposition, but T n in mnltlnir tt for tho nurnnse nf en. ' deavoring to advise this jury Just now I think you ought to start in in the I Juryroom in considering this case: and i you must take up these counts of the : Indictment one at a time, unless you f are so far convinced of the Innocence f of the defendant that your general vote Is for him at once. So I think the court will tell you that you can not convict the defendant under the first and third counts of the Indict ment; but that leaves all of the other counts charging: what the fees Were, that Krlbs made payment In each case by check. Whereupon a recess was taken until 2 o'clock P. M. AFTERNOON" SESSION. Mr. Thurston resumes his argument: If the court clease. and gentlemen of the Jury I regret th3t it is necessary to detain you here any longer, gentlemen, listening to arguments: you have served in thi3 case so long and so patiently, and have, for so many days, suffered the real hardship of being separated from your families and your fellow men. that I could wish It were In my power to expe dite this trial, and. were it not for my duty to my client. I would gladly do so. In his behalf, and In my own. I thank you moat sincerely for the great patience you have shown: the ever-ready interest you have given to every particle of testi mony, and to the arguments on both sides. When we concluded the morning ses sion, we had commenced to take up a very dry discussion along somewhat technical lines, and I had said to you that I might be discussing propositions under the law as I view It and as I have asked the Judge to charge the law: that might not be mate rial because the Judge may charge the law entirely differently from what 1 think it to be. It is a curious thing in this country, the law on any particular sub ject Is considered a very simple thing, and we are always told that every man must know the law; that every man must know the law. no matter how little. In fact, he knows of It. but he must al ways know the law. and he will be held accountable in all his acts and doings for a correct knowledge of the law. and yet. It happens that almost every great ques tion, nffectlnr the vital interests of the Nation and the rights of men. has been decided in the Supreme Court of the United States by a vote of five to four. Wherefore, it seems to us. not of the bench, that the law Is a rather doubtful proposition under any circumstances, and if the Court should not charge the Jury along the line that I expect him to, I hope, gentlemen, you won't hold me seri- ousiy responsible for failure to know what the law really Is I have presented to you the proposition that the first and third counts of this in dictment, under my view of the lasv, could not be maintained because they harge the defendant with receiving moneys" Jroin Kribs. whereas Kribs' payments, under all the counts, as the proof shows, ha4 been made by check. I pass from the first and third counts to the sixth count in the Indictment, which charges the defendant with receiving $553, I think, the 4th day of February. 1901. Please remember these counts, as far as you can by numbers. The District Attorney has already said to the court that he does not claim his sixth) count Is substantiated by the proofs, be cause, while It Is alleged that that $35S was received as part payment upon a con tract entered into on the 20th day of Sep tember, 1502. the proof shows that It was In pursuance of a new arrangement for employment and fees by Mr. Tanner, and, therefore, the District Attorney has aban doned that count, and the court will charge you. I have no doubt, that you are not to consider It. The seventh count in the indictment al leges the payment of $200 on the Sth day of October. 1D04. and it is alleged that this Is a further payment upon the contract set forth In the fifth count of the Indict ment, whereby Mr. Tanner was employed on the 20th day of September. 1302. Pleaso understand that I am now discussing technically the counts of this indictment. I will get to a general discussion of tho real proposition in this case later on. but It is due to you and to my client that I should present these objections that may seem somewhat technical in their na ture. Under the seventh count of this In dictment the defendant is charged with receiving, in October. 1904. a check for $200, worth $200. The allegation Is that he received it for services performed and to be performed before Blnger Hermann, the Commissioner of tho General Land Office. The evidence shows that Blnger Hermann ceased to be Commissioner of the General Land Office on the 9th day of February. 1903. so that at the time of this last $200 check Binger Hermann was no longer an officer of the Government of the United States: in fact. I think, prior to that time he had been elected as a member of Con gress. So that the charge in that, count that that $200 check was given for serv ices to be performed is bad. Blnger Her mann no longer being In the Land Office: therefore, the only part of that charge that can be considered, is the charge that that $200 check was received for services already performed. Now, I challenge the distinguished attorney for the Government to show you any proof of any service that had been performed there by Mr. Tanner, be cause Mr. Tanner performed no service before the General Land Office: and I challenge him to show you from all this correspondence any service of any kind that was performed by Mitchell in the Land Department after the 20th day of September. 1902, upon which contract of employment of that date, this seventh count in the indictment Is framed. I will be fair with you i,n this respect, gentlemen of the jury, and I will present to you the entire proof of everything- that was done by Mr. Mitchell after the 20th day of Septem ber. 1902. I think I have carefully compiled every letter that was written by Tanner, or Mitchell, or Hermann, covering- all these transactions in the Land Office. Mr. Tanner testified that on the 11th Jay of November, 1902, he transmitted two letters to Senator Mitchell. The first letter, and this wa3 tne first letter written after the 20th day of September, 1902, when that last contract was entered into the first let ter enumerates the numbers of the lieu land selections and says: "I have the honor, therefore, to request that you ascertain. If possible, the present stat us of these selections, and which, if any of them, have been approved for natent. ami what requirements. If any. remain to be complied with bf6, those not approved can De approvpa tor patent." I call your attention .to the fact, right there, that Mr. Taaher Is not calling upon Mr. Mitchell to per form any service for him or hla client In the Land Office. In this letter, as In nearly all that Mr. Tanner wrote, he asks Senator Mitchell to secure for him from the Department certain in formation. Xow, gentlemen, i do not nee-; to say to you that under no cir cumstances that can be imagined could Senator Mitchell commit any of fense, under this law by simply mak ing inquiry at the department for information and transmitting that in formation to Mr. Tanner. Please keep that in mind. Tne records of the Land Office of the United States are public records, open to the Inspection and in quiry of every citizen in the United States; no man. Senator or otherwise, can commit any offense, under that law. by asking- for and receiving- In formation: that Is so plain that it is self-evident. And he is not charged by the skillful attorney with committing- any offense under this statute for simply' asking for and receiving in formation. He Is charged with bring ing the power of his Senatorial posi tion to bear upon Blnger Hermann, Commissioner of the Laud Office, in the hope of inducing- nim to Rive some spe cial attention and to work some spe cial result In regard to these land claims. Senator Mitchell's Reply. The second letter was Senator Mitchell's reply, and after stating something about the matter which Is not material right here, he said. "But I will inquire into the matter carefully at once and find out just how these selections stand at present, and will advise you." So far. there Is nothing .done and nothing promised except what It was proper and right for Senator Mitch ell to perform. Now. the next letter, Mr. Tanner says, December 5. 1902, he gives the numbers of these lieu-land selections. acknowledges the receipt of letter from BUNCH TOGETHER Coffee Has a Curious Way of Finally Attacking Some Organ. 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My friends who come here and taste my Postum say it 13 delicious." Name given by Postum Co., Battle Creek. Mich. Get the book. "The Road to Wellvilla," In each package.