Morning Oregonian., July 01, 1905, Page 7, Image 7

7
ARGUMENT MADE THAT MITCHELL IS GUILTLESS OF CRIME
THE MORNING OREGOXIAX, SATURDAY, JULY 1, 1905.
the Commission of the Land Office, in
which he says, among other things, that
"Said cases are now in the flies awaiting
consideration in due course of business,
and when reached they will be taken up
and passed upon without Interruption,"
etc. "Would it be askins: too much of
you to ascertain from the Honorable Com
missioner whether it would be possible to
have these cases taken up out of their
order Immediately, for the reason that,
as I have already explained to you. the
estate of the late Governor Pillsbury. of
Minnesota, Is interested.' etc. Now. what
is that request? "Am I asking too much
of you?" or "Would it be asking too
much" to ask you to see the Commis
sioner of the General Land Office, and
ascertain from him if these cases can not.
under the special circumstances of the
case, be taken up out of their order. So
far. there is nothing shown done by either
Mitchell or Tanner that would constitute
an offense under this statute. Then, De
cember 10, Senator Mitchell answers that
other letter. Says, "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 persons in
terested in the lands, however, to make
affidavit showing why they should be
taken out of their order, I will see what
can be done."
No Proof of His Visit.
So far, there is no proof that Senator
Mitchell ever went before the Land Office
and urged any action or did anything he
had not a perfect right to do, simply
along the line of making Inquiry and re
porting. Tanner again writes him. De
cember 29, "Can't you get Hermann in
terested in the matter and Insist on hav
ing these claims taken up and disposed
of!" Then he writes him on the same
date another letter, wherein he sets forth
at length the reasons why he thinks the
cases ought to be expedited, but nothing
in there shows that Senator Mitchell went
before the department and asked anything
to be done; and the only testimony in
this case that he did anything at all in
regard to these cases In the Land Office
and you are trying him on the evidence in
this case, and not on supposition as to
what he may have done Is found in Sen
ator Mitchell's letter of January 3. 1903.
addressed to Blnger Hermann, in which
he says: "I sincerely hope you may feel
justified, on the affidavits Inclosed, in
making these cases special and moving
them along to speedy adjustment." I
want you to note that language, gentle
men, because, so far as the testimony
shows, that Is all that Senator Mitchell
ever did in the Land Department of the
Government with respect to these lieu
land claims, which Tanner had taken
into his charge on the 20th day of Septem
ber, 1902. That is the last letter about
hem which shows that anything was
done, and I want you to carefully consider
the language of that letter, and see if you
can find it in your judgments or In your
hearts, to convict a man for performing
services before the Land Department on
so slight a suggestion as is therein con
tained. He don't ask him to do anything:
he don't urge him to do anything: he
doesn't appear and demand anything; all
that the testlmonv shows he ever did
with respect to these lieu-land selections
covered by the contract between Tanner
and Krlbs of September 20. 1902. is to say
to the Commissioner, "I sincerely hope
you may feel justified in making these
cases special." Was that the commission
of a crime, or did it lay the foundation
for a crime under this section of the stat
utes of the United States?
Fixes Dates for Consideration.
Xow. gentlemen. I have been trying to
eliminate as far as possible the consid
eration of all counts In this indictment
not fairly covered by the evidence, for
the reason that I think you ought, when
you retire to your juryroom, to fully
understand just exactly what the counts
are in this indictment to which you must
cireci your most penous attention. I do
wfll. be very frank with you about It I
do It. Because 1 Insist under this Indict
ment the first four counts relate to two
transactions of the 13th of Februarv. 1902.
and of the 14th of June. 1902 all in the
same early part of 1902 and on the fifth
count of the Indictment and the seventh
count of the indictment, the latter of
which I think I have taken away, eo far
as any serious consideration of it Is con
cernedthe lapt charge relates to the em
ployment of the 20tli of September, 1902.
Kow, mark you. you are only to consider
such Krlbs matters as happened between
the 13th day of February and the 20th
day of September, 1902. What happened
after that, and there are a number of let
ters, and there is some testimony from
Tanner that they had under considera
tion other outside matters upon which
Senator Mitchell Is not being tried, but
upon which I will talk to you presently;
but Senator Mitchell, under this indict
ment was either guilty on the 20th day
of September. 1902. or else he never was.
That's the laft date on which they
charge the receipt of any money by Tan
ner and Mitchell, on which tne allega
tions of this Indictment are framed. Now,
bear that in mind. There are a whole
lot of letters here, several of them relat
ing to other transactions which they in
troduce here for the alleged purpose of
making this Jury believe that Senator
Mitchell knowingly and Intentionally
took the money under these Kribs
counts, but unless Senator Mitchell was
guilty on the 20th of September. 1902. he
never was guilty afterwards and no mat
ter what was brought to his attention
after that date, it could have no bearing
and no effect upon the condition of hip
mind up to and prior to the 20th day of
September, because, gentlemen of the
jury, as Judge Bennett so well argued to
you, a man either commits a crime at the
time he takes the money or else -he never
commits it.
His Chicken Comparison.
It is not a question of giving it back.
If a man gets a chicken off a hen-roost,
it Is either larceny then, or It is an hon
est act: and if it isn't larnceny then. It
can't be made larceny because he don't
give back the chicken when his neighbor
demands it. It is either a crime when he
takes the chicken or it is never a crime.
That would be especially true If he had
eaten the chicken up and could not re
turn it. So the receipt of the monev bv
Mr. Mitchell was either an offend under
this .statute when he got the money, or
It never was: it was criminal
then, or else It was not; and no
matter what he did, and what he said,
and what he thought, or how he acted
afterwards, he could not thereby make
himself guilty of something that he was
Innocent of at the time the transaction
took place. Therefore 1 am endeavorlnc
to limit the consideration of the evidence
under this indictment within these two
dates. February 13th. to September 20th,
1902; what he did after that has no bear
ing at all on the question of his guilt or
innocence, except, and l will be fair with
you, except that you always have a right
to draw inferences from the after-acts of
men charged with crime, and vou have
the right to draw inferences from their
after-acts upon one proposition, and one
proposition alone, as to whether or not
tncjr acts are in tne nature of a confes
sion or an admission that what they had
done before was with a guilty purpose
and with a knowledge that they were
committing an offense.
Going to the other counts of the indict
ment. I believe the court will charge you
that this indictment charges Mr. Mitchell
and that the proof so far as It goes. Is to
the effect that these payments of Kribs
were made by checks to Tanner: the al
legation in the indictment Is that Mr.
Mitchell received these checks; the proof
is tnat .Mr. Tanner received tnese checks.
Tanner, when he received these checks.
deposited them in the bank the name or
tne next day. ana mere is no testimony,
.gentlemen, no testimony which shows or
tends to show that in any one instance
Mitchell knew anything about the receipt
"of a check by Tanner until long after
Tanner had taken it and deposited it in
the ba,nk. The proof is that as to every
charge in this indictment as to the re
ceipt of a check, that Tanner was in
Portland and Mitchell was In Washing
ton, and in tho very nature of things, he
could not know and he did not know that
Tanner had made an agreement with
Kribs or that a check had been given
until at least some time alter tnat trans
action was massed.
Now, I leave it to you if that is not an
absolute statement of the proof in this
case, and of the truth.
Thurston Grows Sarcastic.
Then I think the court will charge you
that if this prosecution, knowing the facts,
had desired to charge Senator Mitchell
with having received moneys later on, the
proceeds of those checks, it would have,
and it could have without the slightest
difficulty, embodied in this Indictment a
charge setting up the facts, to wit. that
Krlbs paid a check; that the check was
cashed at the bank: that the money from
the check was put to the credit of Mitch
ell & Tanner: that Tanner drew out
Mitchell's share and deposited that check
to autcnell. There was no trouble about
making those allegations in this indict
ment. If such were the facts, and they
knew them in the grand Jury room. 1 do
not charge to the District Attorney a
failure to properly plead his case In this
indictment. I understand he was aided in
that respect by a most eminent and
learned ana accomplished representative
of the department in Washington Mr.
agm. or Fagan. or some such name who
came out here, 3000 miles across the coun
try, because the Government had discov
ered that he knew more about drawing
indictments than any other man they had.
I wonder how much the rest of them
knew about drawing Indictments, judging
from Mr. Pagin's allegations in this ln
dictmenU No. Mr. Heney Is not to blame;
I will relieve him from that responsibil
ity; but, gentlemen of the jury. It was
the solemn duty of this Government If
they proposed to indict and convict Mr.
Mitchell, to set up the facts; and I be
lieve the court will charge you that un
less tney did set up tne facts, tne prooi
here is at variance with the allegations
In this Indictment. Mitchell would have
been guilty of a violation of this statute
if Tanner had received a check from
Kribs. if Tanner had deposited that check
In the bank to the credit of Mitchell &
Tanner, if Tanner at the end of the month
nad drawn out half of that money by a
check payable to himself and deposited
that monev to Mitchell's credit Mitchell
would have been guilty if. at the time
Tanner deposited that money In the bank
to his credit, he had knowledge that it
was deposited there for some services
rendered, or to be rendered, by him be-
tore a department of tne uovernment ot
the United States. But that is not the
charge in this indictment. And. as I said
this morning, you cannot convict a man
you ought not to convict a man who is
charged with stealing a horse, even u the
truth shows he stole a cow. Let them
indict on that. And so 1 say to them here.
u you naven t cnargea tne rcai transac
tion, don't ask this Jury to violate its duty
and its oath and convict this defendant
on general principles, on proof not fitted
to the allegations or this indictment; but
go back to your grand jury room, get
them in there, lock them In, and In the
darkness do it all over again, and charge
what you think the proof will substan
tiate. The Bank Brought In.
Xow, I think the court will charge you.
because if I have read the decisions of
the Supreme Court of the United States
rightfully, that court has decided that
when Tanner took a check from Kribs
and deposited it in the bank here to his
credit, he got on It, not money from
Kribs, but that the transaction was a
sale of that check to the bank Just as if
Tanner had received a horse and had sold
the horse to you the money that went
Into the bank to the credit of Mitchell &
Tanner was the money of the bank; the
deposit of that check was a sale of that
check to the bank. If Tanner had taken
that check and followed It up to the bank
on which it was given, and from the bank
on which It was drawn had collected the
money, he would have received the money
of Krlbs. But ho did not. He deposited
that check in the bank, and sold It to' the
bank, and it became the check of the
bank. They could tear it up. the Supreme
Court says or throw it away, or any
thing. And the money that Tanner got
on-that check to the credit of his firm
was the money of the bank; and that
doesn't sustain any count In this indict
ment. Now. I grant you, and I have been tell
ing you In advance, that is purely tech
nical; and yet. as I said earlier In the
day. there Is no such real thing as a tech
nical defense, for the wisdom, and ex
perience, and justice of the Anglo-Saxon
race, in Its development and Its civiliza
tion, and its progress, has thrown these
safeguards of the so-called technicalities
of law around the lives and liberties of
men.
Now. gentlemen of the Jury. I have done
with what might be called technical con
siderations. I might occupy a great deal
of your time right here by asking you to
remember that the law is so tender of
the rights of men. so solicitous for human
welfare, that it has provided, and most
widely provided, that no man can be con
victed by hl3 fellow-countrymen unless
every charge In the Indictment is pro-en
beyond a reasonable doubt; but you un
derstand that that is the law. You know
why It Is the law. You know It Is the
safeguard of human rights and human
liberty tnat it is the law; and I know
that. If it were necessary In this case, as
I believe It is not. you would carry that
rule of law into your Juryroom. and con
sider it and apply it conscientiously to
the evidence In this case.
Gives Ills Opinion.
But. passing all those things, gentlemen
of the Jury I may in my judgment be
affected by my love and respect and ad
miration for this defendant, and you don't
have to take my judgment: you are the
Judges but I come here, for my part, and
I say. for my part, I am not asking or
demanding that this jury rest on so-called
technical defenses, or on the question of a
reasonable doubt; but I tell you. gentle
men. In my honest opinion, as I stand in
the presence of the world. I don't believe
that there is a single allegation In thnt
Indictment that is ftroven at all under the
evidence In this case. I don't believe It.
I can't believe it: and I have scrutinized
this evidence from beginning to end.
Now. take It along broad lines, elimi
nating all thse technical propositions I
have made, and which I madp hpaiisr T
believed it was my duty to make them
taKing it along nroad grounds, what Is
this charge? That Mitchell received
money from Krlbs. or checks, or what
ever you piease consideration for per
forming services before a department of
the Government of the United States. The
court will charge yob that that neces
sarily implies that when he took this
money he took It knowingly; that Is, his
taking that money was either Innocent
or guilty, dependent upon the question
alone as to whether or not, when he took
It. he knew that he was taking it for
services rendered, or to be rendered before
Blnger Hermann, the Commissioner of the
Genoral Land Office. And along that line
I want to talk to this Jury.
Presumption of Innocence.
In the first place, the presumption of a
man's Innocence runs with every act he
does. In a young man there mav be no
great presumption of innocence, 'because
he may never have stood In tho light of
temptation and been compelled to act
honestly or dishonestly. In the life of a
middle-aged man. the presumption of ln
nocence as to one particular act may be
stronger from the fact that for many
years he has been in a position where he
might have done wrong if surh had been
his Inclination, or had been in his heart:
and in the case of an old man the pre
sumption grows still stronger and strong
er, until it acquires almost tho Irresistible
force of an absolute truth, that a man
whose whole life, lived as It has been in
the shadow of what might have been
temptations to weaker men that a whole
life of honesty in many affairs stands al
most an irresistible presumption that the
man could not, late In life, after passing
through all these years, where tempta
tions were undoubtedly around him, where
he might have made thousands and mil
lions, yes, and have made them in ways
that most men call right and proper the
presumption Is almost irresistible that a
man who has lived 6S or C9 years of a
public career, without the slightest sus
picion attaching to him that he ever took
a dollar In his whole life wrongfully the
presumption attaches that a man who has
lived almost In poverty, being in a con
stant struggle to get along while perform
ing his public duty the presumption Is
almost Irresistible that that man. late in
his life, with his whole career behind him.
and Just sunset ahead Just sunset ahead
It almost irresistible that that man
could not. In the very nature of things.
ha-e committed a crime to secure to him
self In an illegal manner a few hundred
dollars. Gentlemen, to my mind, that is
an irresistible presumption; and If I had
nothing else to Judge from, in the light
of all this testimony, in the light of all
that is charged, in the light of all that is
said, to me John H. Mitchell's forty years
of honest service to hlB country and his
state, in the face of temptation John H
Mitchell's career, in which no dollar of
money has ever attached In all his life
Improperly acquired, would be enough, as
a citizen of the United States, to create
the presumption in my mind, almost Irre
sistible in character, that John H. Mitch
ell could not, in his declining years, have
fallen so low have so denied his whole
career have so departed from the whole
moral fiber of his honesty and honor, as
to commit a crime In the taking of a few
hundred dollars. I tell you, gentlemen. I
want that presumption to go with you
into the Jury-room, for he is entitled to
have it.
Oh. but they say. get right down to the
iatt mill, uv uivx. toe money, ana xoey
really ask you. gentlemen of the Jury, to
be machines and not men.
I am clad that the law of. civilization
and of tnls great liberty-loving people has
provided tnat a Jury of men snail try men,
and not a jury of machines. I am glad,
and it is the safety of every man in this
country, that In the Jury-box shall be. not
only the heads and the Intellects, but the
hearts of men, and that men shall try
men; and when I say men on the jury. I
mean men who are alive to every noble
impulse of the human heart who can
realize human frailty, wno are not per
fect, who might not be able to stand at
the final day before the Judgment bar and
expose all the secret workings and fail
ures of their own lives without feeling
very sadly about their own shortcomings.
I am ulad that men arc to be tried by
men human men. Oh, gentlemen, when
x am tnea. lr i ever am, i want tne men
who try me to be men; home men, good
men. I want them to be men who come
to the Jury-box fresh from the tender
embraces of loving wives, and I want
them to come to the jury-box with the
kisses of little children still trembling on
their lips: and I want them to come with
human hearts; I want them to come look
ing for the good, and not for the bad. I
want them to come seeking out the the
ories under which they can decide that
men have been honest and good, rather
than to come looking for excuses to throw
shame and punishment upon their fellow
men. And 1 want this Jury, after you de
cide this case, to go out of the courtroom,
not thinking or caring what a partisan
press may ay, or what prejudiced people
in any community may say. I only ask
of you. one thing when you go out of this
Jury-box and return to your happy homes.
tnat you can sit down tnerc ana taice your
children on your knees, or if you haven't
any children young enough for that, you
can put your arms around your wife and
say. "Thank-God! I had a chance I had a
chance to relieve an old man unjustly ac
cused.
Tanner and the Checks.
On the 16th of October. 1901. Kribs made
his first agreement with Tanner about
lands. The District Attorney has said
that he had other transactions with Tan
ner before, that Mitchell must have
kiown about It. There was only one,
of J50 for a case not connected with land
matters in the department at all; nothing
in that to challenge Mitchell's attention
if he had looked the books over for a
hundred years. The first deal with Kribs
was by Tanner ori the 16th of October.
1901. That transaction is not covered by
this indictment, but I can sec that it Is
important, and that you have a right to
consider it for the purpose of determin
ing whether or not. in regard to later
transactions between Kribs and Tanner,
Mr. Mitchell had knowledge that moneys
were paid for the purpose of securing
services to affect the decision of Blnger
Hermann In the Land Office of the United
States. Gentlemen. Mitchell could not
have been bullty then or afterwards un
der that statute, unless Tanner knew that
he was receiving and had agreed to re
ceive money for the performance of serv
ices in the department at Washington.
Now that Is just as plain as anything
can be plain. Mitchell could not have
been guilty in any of those transactions
unless Tanner, when he took the check
and made the arrangement, made it with
reference to the performance of services
before Blnger Hermann in the Land Of
fice of the United States. You will agree
with me that this Is self evident. There
fore, the first question that arises Is. did
Tanner, when he received these checks
from Kribs. receive them under an agree
ment to perform services, either by nlm
self or Mitchell before Blnger Hermann
In the Land Office of the United States?
DJd Mr. Tanner, when he received
these checks, receive them to cover
services of Senator Mitchell? Take
the first transaction on the 16th
of October. 1901. We only havc the
testimony of the witnesses as to that
transaction. Tanner and Krlbs. Krlbs
says that he employed Tanner. I chal
lenge the District Attorney's attention
to any statements I make about the evi
dence. Krlbs says he employed Tanner
to look .after these land matters. Stop
right there a moment. What was to be
done about them? .Only to perfect them.
There was not a thing to be done In the
General Land Office of the United States
by Tanner or anybody else, only to per
fect the record and see that the proof
was right so that they would go through,
and If it was right, they would go through
as a matter of course. There was noth
ing to be done In the General Land Of
fice. It was the preparation of the
cases and getting them ready, forward
ing the proof; but Kribs says he em
ployed Tanner, and after he had made
his agreement with Tanner they both
went Into Mitchell's room, where Tanner
Introduced Krlbs to Mitchell, whom he
did not know at that time, and he said,
"Mr. Kribs has Just employed" Who?
"me to look after his land matters." And
three days later Krlbs came back and
saw Mitchell for a moment, and he said
to him. "I have agreed to pay Mr. Tan
ner a thousand dollars In my land cases
I have brought to him." and Mitchell
says. "You most not talk to me anything
about that, go and talk to Tanner." The
District Attorney puts a criminal con
struction upon every innocent transac
tion and every Innocent word that has
been written through all these lines of
proof. Mitchell says: "Go and talk your
money matter with Tanner." Whv?
Because Krlbs had tod him.- and Tan
ner had told him, that Tanner had been
employed. And there Is not a line or
a word In Krlbs' testimony that even
raises an Impression In the minds of
honest men that at the time of Tan
ner's employment It was In Tanner's
contemplation that Mitchell was
Joined with him In that mat
ter of employment, or if he was
It was not in the contemplation of Mr.
Tanner that they were being employed
for any service to be rendered In the
department by Senator Mitchell. Gentle
men. If Tanner did not accept employ
ment on behalf of Mitchell; If Tan
ner ld not take that money
under an agreement to cover Mitchell's
services in the department; If It was not
the understanding of Tanner that such
was to be the case, how can you charge
Mitchell with a guilty purpose or with
knowingly taking money for the purpose
of securing his influence in the depart
ment of the Government? You cannot
do It. What does Tanner say? Tanner
is the man we come to now. He has tes
tified after all these things were over,
when Mitchell came out here and Tan
ner met him up the road a ways, to the
following conversation: "He (Mitchell)
Mid what was Kribs going to do, wheth
er they could get any information out of
Krlbs about the transactions that had
been had with the firm or not: and I told
him I did not know what course Mr.
Krlbs would pursue about It. And that
led to a sort of argument between he and
me as to whether there was anything
In the transaction with Kribs that would
effect him as a Senator. I was surprised
when he Intimated that there might be."
If Mitchell was guilty at all. he was
guilty because Tanner made an agree
ment and took money for the perform
ance of services beforo a department In
violation of this statute. How did Tan
ner look at It? "I was surprised when
he Intimated that there might be. He
(Mitchell) 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. " Tanner did the
business; Tanner knew whether or not
his agreement covered the services In
the department; Tanner knew whether
or not he was getting money with or
without the knowledge of this man for
sen-Ices In the department. Tanner said
to Mitchell. "I don't see that there can
be anything In that that would affect
you." What did he mean by that? He
meant just what he has testified, to, that
he never made any agreement with Krlbs
for any money to cover services in the
department by Mitchell or anybody else,
or In violation of this statute. If Tanner
did not make an arrangement of that
kind: If Tanner did not receive the money
for that purpose, his paying over half of
it to Mitchell would not make Mitchell
guilty of anything. If the monev came
into that firm as Tanner says It did, not
covering services performed or to be per
formed In the department. It came in
there as the honest and legitimate mon
eys of the firm in the division of which
Mr. Mitchell was entitled to share, and
unless Tanner took it for the purpose
of covering service to be performed In
tho department, it was honest monev In
the treasury of the firm and went to
Mitchell as such. If it was honest money
when Tanner took It. It was honost
money when It was divided. There was
no period of time between its receipt by
Tanner and its turning over to Mitchell
when money that was Innocent in Itself
became guilty in fact.
But further: "I said Kribs employed
me and I did the work, and -whatever as
sistance you rendered was the same as
rendered any constituent who raJsht call
on vou for assistance of that kind?' Now
J that was not said after- indictment:
that was not said In court. It was not a
conversation that either of the men ever
supposed would be repeated or used else
where: It was the honest expression of
Tanner's judgment: it was the honest
relation by Tanner to his partner In con
fidential conversation as to what the
character of the transaction had been
under which he received money from
Kribs. He continues: "I did not, so far
as I was then advised, consider that
there could be any case against him
(Mitchell)."
But that Is not all. Mr. Tanner Is put
on the witness stand by the prosecution
and offered to you as a witness worthy ot
your belief. The prosecution cannot. In
the nature of things, discredit Its own wit
ness. It Is bound by what Its own witness
testifies to. I am not going to say much
in this case about Mr. Tanner. I feel sad
and sorry for him. God pity any man
who is hun- up as he Is under a plea of
guilty to an Indictment, who can be sen
tenced to one day's Imprisonment or ten
years. Just as tho District Attorney says,
or who can go to prison or be pardoned.
Just as the District Attorney says. God
pity the man that any prosecuting' officer
has clutched by the throat like that. I
pity him: but with respect to almost
everything In this case, I believe that
Tanner testified like an honest man. and
certainly it does not lie in the mouth of
the prosecuting attorney to say that the
testimony and the witness he himself
offered are not to be believed by you.
Bear In mind what I have said, and what
you must realize, that Mitchell cannot be
guilty under any circumstances unless
Tanner made an agreement to take the
money to cover services to be performed
In the department at Washington and to
be performed by Mitchell, because Tan
ner never pretended to render any services
there. Mr. Bennett asked Tanner on the
witness stand, as you heard him: "Q.
At the time that you made this contract
with Mr. Krlbs did you charge Mr. Kribs
or Include In this thousand dollars any
thing for work which Senator Mitchell
should do as Senator such as he would
not do for any Individual?" This question
was objected to, and then Mr. Bennett
asked him this:
Oso Charge for Mitchell's Services.
"Q. Was there anything Included In
that charge for servlcca which Senator
Mitchell might render In the departments
at Washington? A. I did not so under
stand. It." If Tanner did not so under
stand at the time he made the contract
and took the money, how can this Jury
understand It that way at this late date
to criminate this delendant? "Q. You
did not so understand it? A. No. I did
not. Q. You did not Intend to charge Mr.
Krlbs anything for that, nor Included that
In that charge of a thousand dollars?
A. No. sir; I did not. O. And It was not
so Included? A. No. there was nothing
Included for any services thaf he rendered
there." And that examination was fol
lowed up to show clearly and conclusively
as to Krlbs' matters that at the time
Tanner made his agreement with him he
employed Tanner; Tanner so under
stood It; Krlbs so understood it;
and that he did not Include In that
employment or In the compensation re
ceived, anything for services performed
or to be performed in the department at
Washington by Senator Mitchell: and.
gentlemen of the Jury. If you believe Tan
ner on that point, that transaction was
as Innocent a deal as ever was made, an
absolutely Innocent employment. If that
money came into the firm treasury Inno
cent and clean, it went to Mitchell Inno
cent and clean. For It went In there for
services to be performed In perfecting
cases, to make the proof and all that, and
do the outside work and give advice and
get them to the department, covering a
transaction that the firm was entitled to
engage In for Mitchell was entitled to
receive half of all the money taken In by
that firm that did not Include work done
In the department at Washington. Now.
bear In mind, gentlemen, the statute docs
not cover preliminary work done In a
core that Is pending In the department:
It does not cover work outside of the de
partment, nnd this Indictment charges
hat he was guilty because It was done
to Influence the decision of "Dinger Her
mann. Thev have limited It. It does not
charge anything that was done to get a
case ready for tne department, it aocs
not charce anything that was done In
sending evidence to the department. It
does not charge anything that was done
In asking the status or tne case in tne
department. Tanner says the money he
received from Krlbs did not cover any
thing else. Tanner Is their witness. Don't
put him on the stand, holding him as" you
do. dependent as he Is on the mercy of
the District Attorney, and because he
testifies to the truth as to the honesty and
puritv of that transaction with Krlbs.
don't ask the Jury" to disbelieve what he
testifies to. and upon their disbelief to
convict this defendant.
Did .Mitchell Know?
Did Mitchell know or have good reason
to know, when tho partnership funds were
divided at the end of any month, covered
by the Krlbs payments, that he was get
ting money that had been received from
any source for services rendered or to be
rendered In the department? Stop nnd
think a little bit. They say. yes, he knew.
What did he know? lie knew Krlbs had
emnlored Tanner: Tanner had gotten :
money, wnnt ror? .nos nau a ngnt io
employ Tanner: Tanner had a right to
take Krlbs' money In an honest' transac-
Hon. All I ask Is that men shall Judge
transactions as they seem, without start-
Inc with the suspicion that there fs some-
thing wrong, to hunt for some secret i divide with his partner, even If such were
meaning beneath tho surface of things. ; lne Cae? If he did not know. Is he
Suppose he knew Tanner took $100. $500. , EUHty? Certainly not.
$10ut from Kribs: suppose he saw it en- j Then there Is onlv one other transac
tered In the book. What was there about J tjon under this Indictment that I care to
thnt to advise him that it was taken for a . r.fr to and that was on the 20th of
dlsnonest purpose.' was mere anymins
In any entry on those books that shows
on the face of It that he had not made
an honest arrangement with Krlbs for
services, not Including anything done In
the department at Washington? Was
there anything about a single one of those
entries in the book that you or any other
man would look at? Ah. they say. Krlbs
employed Tanner; suspicious to employ
Tanner: Tanner Is the partner of Mitch
ell. Mitchell is Senator. Suspicious! If
there Is a man on this Jury who sits here
with a suspicious heart to begin with, he
will find something wrongabout all of these
transactions. I don't believe there Is such
a man on this Jury- I believe you will do
whatever a fair-minded man ought to do:
view every transaction as if It were an
honest transaction and meant what It ap
peared to mean until there Is proof to the
contrary- if Mitchell, on the 3d day of
March. 1002, when he received his share
of the flrst payment charged In this In
dictment, made on the 13th of February.
1J02. had had the book of that Arm right
before him and this entry in It. and had
read It a thousand times, what Is there
about it to charge him with knowledge
or even suspicion that Tanner was tak
ing money In It to cover services to be
performed by Mitchell In the department?
It was an entry that appeared honest on
its face. But, gentlemen of the Jury, that
money was recelved.by Mitchell on March
3. 15. that first half of the first Kriba
payment. He was either guilty then on
that count, or else he never could be
guilty afterwards. He was either guilty
when he took that money or when It was
deposited to his credit with his knowledge,
if ne had knowledge, which he got when
the monthly statement was sent to him.
or else he never could be guilty. If. after
he took that money he had found out at
some later date that it had been received
by Tanner to cover services that were un
lawful under this statute, mark you. If he
had not known It when he received it. but
at a later date he found it out. It did not
make him guilty of taking it with that
guilty knowledge, because he was cither
Innocent or guilty at the time he took the
money. And if he found out afterwards
that it had been'taken in by Tanner for
an unlawful purpose, that knowledge
would not make him criminal, and the
fact that he did not afterwards pay back
the money would not make him guilty un
der this section of the statute. He was
either guilty or innocent when he took
the money. He had to have knowledge
then or never, and the transaction there
was closed. If a man comes to me and
passes on me a counterfeit twenty-dollar
gold piece, he Is cither guilty of a crime
then or never. If he did not know tho
gold piece was counterfeit then, he was
not guilty; if he did. he was. If he did
not know it then, but found it out the
next month, that did not make him guilty
of passing counterfeit money on me. If
he found It out the next month and did
not come and pay me. take up his coun
terfeit piece, that did not make him
guilty. It may have been his duty as a
man. to come to me when he found It
out and pay me the $20. but It did not
make the passing of that counterfeit
twenty-dollar gold piece a crime because
he found out after he passed It that it
was counterfeit.
So Mitchell and I cannot repeat that too
strongly or too often was either guilty
when he received the monthly division of
funds, he either knew or hjo did not know.
that that money was received .for an un
lawful purpose, and his guilt or Innocence
settled right there. He might be paid
$10,000 under the statute today, and if he
thought at the time that he was receiving
It for a proper purpose, and should find
out tomorrow that It had been paid to
him for an improper purpose, that would
not make him guilty under dhls statute.
The moral responsibility might rest upon
him to return the money: but whether he
did or not would have no effect upon the
question as to whether he had or had not
committed a crime. But they say that
that division of funds on the 3d day of
March. 1S02. covering the first JS0O pay
ment in February. 1S02, Mitchell must
have known all about. Why? Because
about the Sth or 9th of June following,
there was sent to him a copy of the book
entries, mark you, from November to
June. That Is all It covered. On that
whole transcript, from November to June,
there was only one entry of the receipt
of money from Krlbs. JoOO February 13.
You saw that paper here, the number ot
Fages and number of entries It contained,
n that whole transcript there was only
one entry of a payment by Krlbs. $500 on
February 13. Now, mark you. that cov
ered a period of time from November 1
to Juno 1. That payment on the 16th of
October did not appear on that copy of
the books. Only one payment appeared.
$500. and that under an entry which was
perfectly Innocent on Its face, which
meant Just what It said. Just what Tan
ner said it meant, which described the
transaction exactly as Tanner said the j
transactlon occurred, namely, that Krlbs
naa employed mm unner a retainer to .
perform perfectly Innocent services, not
covering any service ot Senator Mitchell. !
Mitchell might have seen that transcript I
or he might not. If he did. It was a per- f
fectly Innocent-looking entry and meant
Just what Tanner said It meant. It did
not charge Mitchell with any knowledge
in the slightest degree that Tanner had
taken that money to cover any services
performed in the department In violation
of the law of the land. I do not believe,
for my part, under tnis testimony, that
Mitchell noticed or paid any attention to
that entry. What did Robertson testify
he was there when that copy of the books
came, and here Is all tho testimony there
Is about that: "I remember at the time
of the Senator writing to Judge Tanner,
shortly before that, for a copy ot the en
tries in the book, and I remember that
coming on. I remember the Senator dic
tating the acknowledgement which you
have just shown me, and I Temember see
ing It lying on his desk and remember
looking over it. Q. Did you ever see It
there at any other time? A. I remember
seeing It wiien he received it. and dictated
the answer, and throwing it over on the
desk, and I might have seen It other
times." There Isn't one word of testimony
tnat .iiucneu examineu inai copy oi mu
t cop
books: he may have done so; it he did. he
received nothing but information that ap
peared perfectly innocent: it did not tell
him. and It could not have told him. be
cause Tanner says It Is not true that that
money had been received to cover Influ
ence and work In the department at
Washington. But I don't believe he saw
It. receiving from 50 to 100 letters a day.
I know Mitchell was the busiest man of
any mnn in tne Lniteo states senate. tnt i ment with Mitchell or anyooa-. eise to
most faithful man to his correspondents, disguise any transaction that was occur
a man who burned the midnight oil later ring, for I tell vou. gentlemen, that up to
and was up earlier In the morning every th time Inquiries began In Portland, and
day of the session of Congress than any dally bulletins "went out through the news
other Senator thnt ever sat In the United papers In the country as to the Investlga
States Senate: a man who never neglected tjon 0f these gigantic land steals, thcro
to answer a communication from a con- waE not anything connected with this
stltuent or to tramp around from depart- transaction in the slightest degree which
ment to department trying to get his con- thnr- Tanrrr or Kribs or Mitchell would
stltuents requests recognized and acted
upon favorably.
Did Xot Know He Violated the Law.
Now, did Mitchell and that Is what you
have got to say by your verdict did
Mitchell when he received his share of
the money on the 3rd day of March. 1903,
know that he was taking any money In
that partnership division in violation of
this statute of the United States? That
Is what you have got to answer, and you
can -answer It easily.
The next payment was $1000, on the
Hth day of June. 1902. Bear In mind,
gentlemen, that that was not included in
his copy of the book that he received:
his copy of the book covered the period
from November 1. 1901. to June 1. 1902.
J That only covered the flrst $500 charged
in the Indictment. The next payment of
Krlbs to Tanner was $1000. on the Hth
of June, and the copy of the book only
came down to the 1st day of June, so of
course that June payment did not appear
In that copy. Tanner received It and put
It to the credit of the Arm on the 14th
of June, and on the 2nd or 3rd of July
he made the division and sent It to
Mitchell, as you have wen. with the reg
ular statement, upon which statement it
appeared In no way. shape or manner as
to where the money came from that was
bt!ng divided. There Is not a monthly
statement which showed where a dollar
of the money being divided came from.
Therefore Mitchell not having been here
on the Hth of June, necessarily knowing
nothing of the agreement entered Into be
tween Krlbs and Tanner at that time,
did not know and could not know that
Tanner hnd taken a thousand dollars
from Krlbs In land matters, and did not
know, and could not know, when the
money came to him. that It was given
If It hnd been given for an unlawful
purpose. Is not tnat a rair way to iook
at When Mitchell took that money
on lnc 3r(j 0f July, or took the credit and
, wa notified of that fact, how could he
i n tne nature of things have known that
it .- not monev that he could properly
September. 1902. when Tanner again re
ceived $500 and on the 2nd or 3rd of Octo
ber again made a division. Senator
Mitchell was then In far-away Honolulu,
or on his wav back, at least, away from
Portland. How ho got Information as to
that division I do not know, but there
positively Is not a word of testimony
from beginning to end to show that he
knew on the 3rd or 4th of November,
when that money was passed to his ac
count, that It had been received for an
unlawful purpose. Gentlemen. It was not
received for an unlawful purpose. Nei
ther Tanner nor Mitchell did one thing
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from beginning to end in the Kribs mat
ter that was wrong or criminal or In vio
lation of this statute of the United
States. Mitchell could not have commit
ted an offense under this statute unless
Tanner was assisting and aiding him in
doing it.
Restricts the Trial.
Now, they take occasion to introduce
to the Jury some other transactions with
reference to land matters. You are not
trying Senator Mitchell upon any of
them; they are only Introduced In the
hope of snowing to you some additional
proof that Mitchell must have known
that the Krlbs transaction was covered
by thl3 section of the statute of tho
United States. I have neither the time
nor the inclination to take up these other
outside matters. If. under this proof,
Mitchell did not know that he was re
ceiving moneys for things done or to be
done, in violation of this statute and he
did not and the proof so shows: if Tan
ner did not receive this money in the
flrst Instance for the purpose of .covering
unlawful services under that statute,
then and In either of those cases, this
case Is at an end. And whether or not
there may have been other land transac
tions; whether or not there may have
been other mone3s received, with proba
bilities more or less strong that the
transaction was within the statute, they
, cannot possibly influence you In this case
from a determination on the facts as
! they appear under tnis indictment.
Tanner told Mitchell on the 16th of Oc-
tnher thnt Kriha had emDloved him; Tan
ner commenced writing Mitchell from that
time on with relation to the Krlbs mat
ters, and almost every letter he wrote,
especially of the flrst letters, he wrote
about the Krlbs mailer, ana i na .i u
E Traem 3writninjr youn the Infect
nt a iint nf mine. I am asking you to
get Information from the department for
a client ot mine."
Whnt District Attorney
Says.
The District Attorney says. that Mitchell
had gotten Tanner pretty well trained by
that time to write that way. Was he
justified in saying that? Tanner Is his
witness. Is there a word here that sug
gests the thought that Tanner had been
trained by Mitchell to write anything but
what he meant? Is there anything In this
testimony, one word from any living wit
ness or anything else, that shows that
Tanner was seeking to disguise his own
transaction in the method of his writing
his letters, to Mitchell? Not a word, and
oh, how unjust and how unfair It Is to
ask this- Jury to believe, without a single
hit nf nroof. that a man whom they use
as a witness for the prosecution, began
t trom the very "beginning, under a secret
r arranuement wltn Mr. Miicneu, iu ui-
miiso the corresuonoence ana 10 wme
what he did not mean, and to express
himself otherwise than was the real un
derstanding between the parties. All I
need say is that there Is not a word of
proof of It: there Is not a suspicion here
that Tanner ever wrote a lener hku
he did .not write as he meant to write It.
There Is not a word of proof to show that
he ever wrote a letter under any arrange-
j nave sought to disguise or conceal. They
were acung in uycu. .hhhh. -
letter went on nie in tne uepanmeiii. ui
the Interior: It was there to damn him If
It showed evidence of guilt. Every letter
that was written appeared honest on its
face among all those parties. There
wasn't anything to disguise In the judg
ment of any of those men up to that time.
Land Frauds Investigation.
But about, that time our Government
and the Administration commenced Inves
tigating land frauds. I presume there
have been lots of them all over the country-
It was a very proper thing to begin
Investigating Innd frauds: It was a very
proper thing for the Government to em
ploy a distinguished and able attorney
like Mr. Heney to come here and Investi
gate Oregon land frauds. You said in
your examination as jurors, that you read
all the papers, and therefore you know
that he was sent here to Investigate land
frauds. It was claimed that there were
people here who were seeking to secure
the mngnlficent timber lands of this state
bv a fraudulent process, by hiring entry-
men to file claims under an arrangement
to turn over the claims to tne big ieilow
after he had proven up. No doubt there
wen maSy cases In which men thus cm
nlnvpfl were Induced to nerJure them-
relves. nnd made perjured affidavits and
got their claims through In that way.
Mr. Henev was sent here to Investigate
these gigantic land frauds. He got hold
of the evidence of one gigantic land fraud
that is. If the grand Jury that returned
this Indictment knew what he had put
Into this Indictment. The grand Jury got
hold of one king of defrauders If the
grand jury knew what It put Into this
Indictment. Bear In mind, there Isn't a
word of truth, there Isn't a suggestion
made by Mr. Heney. that Tanner or
Mitchell ever supposed for an Instant
thnt there was any fraud In these cntrlfs:
but Mr. Heney was here that Is. the
nnvprnment was here to ln-estigate the
alleged great land frauds In the State ot
Orezon. Was not that what they were
here for? The grand Jury says you heard
this yesterday that this man Krlbs had
hpon pncacpd In this fraudulent effort to
secure the timber lands of Oregon; they
say that he induced numerous entrymen
to make false affidavits to secure lands:
that he was engaged In a vast scheme ot
public plunder against the United States
and the people of Oregon In particular.
Thrrpfnre. I take It for cranted that the
grand Jury must have had enough proof
hfore it that Krlbs was the king ot this
fraudulent attempt to secure the timber
lands ot Oregon: it must have nad proor
of that when it wrote mat cnarge into
thte Indictment where it did not belong.
where they say It did not belong. The
crnnd 1urv found that testimony; It was
proven to them, for they say that Fred
erick A. Krlbs. by subornation ot perjury,
by the carrying on of a gigantic scheme
Ice
FOR-
of JU LY
aaa a at at t a in tffvtfafvtttftfa f at r t iff ft a f a $ ft tt a a
of robbery, had secured 20,000 acres of the
timber lands of the State of Oregon. Rob
ber and thief, says the grand Jury: that
is what the Government was asking to
have investigated, and that la the kind
of men they were asking to have indicted
and punished.
"Why AVas Kribs Xot Indicted?
The grand jury that found that charga
against Kribs did not indict him. They
wrote Krlbs Indictment in the Indictment
against Mitchell, and they let Kribs go
free. Why? Gentlemen, I am not hero
to oast reflections upon anybody; but I
am here to call a spade a spade, and a
shovel a shovel, why was not Kribs
indicted by the grand jury that wrote his
Indictment Into this Indictment? And I
want you to answer that. I want you to
tell me if It is not true that thla great
Government Investigation which was set
on foot from Washington in the first In
stance, to unearth and punish the land
thieves of Oregon, was in some way
turned Into an Instrument directed solely
and alone to the prosecution and convic
tion of this old man with his honors ripe
upon him. for a mere technical infraction
of a statute of the United States, in a
comparatively small transaction? Some
body, responsible to the people ot Oregon
and the people of the United States
somebody told that grand Jury, with the
proof before It that Kribs had suborned
perjury In a hundred cases, and had
robbed this domain of 20,000 acres of your
choicest timber lands somebody told that
grand jury to let Kribs go If he would
be a witness against Mitchell. That Is
as clear and as certain as light Is light,
and needs no other or further proof. But
the District Attorney says very suavely
tnat is. no intimates tnat tne whole
, Government of the United States 1 .wait.
I to hear that you
have convicted Mitchell, not to hear that
you nave done right; not to hear that
you have acquitted him: not to hear that
you have passed on the evidence like
honest men: but that the whole Govern
ment Is just waiting to hear that you
have convicted Mitchell.
Thurston Makes His Closing Flea.
And the impression Is sought to be con
veyed that the administration of the
United States stands here in the person
ot tne JJistnct Attorney and demands
conviction at your hands, right or wrong:
and an Ingenious reference in that re-
sepect was made to Theodore Roosevelt.
the President of the united States, for
the purpose, and none other, of convey
ing to the minds of this jury the fact
that Theodore Roosevelt was waiting;
with bated breath just to hear that old
John H. Mitchell was convicted by a
jury of his neighbors. On behalf of this
administration and that grand man.
Theodore Roosevelt. I resent that sug
gestion. Theodore Roosevelt, honest a
man as was ever created in tne image
of God. as fair a man as ever lived on
earth, does not waltt. anxiously for the
conviction of anybody. All Tie asks Is
that every man against whom an Indict
ment Is brought shall be put face to face
with a jury of his peers. He Is not the.
man to hope for conviction; he Is not
hoping for the conviction of John H.
Mitchell, a Senator of the United States.
He Is not tnat kind of man. and I nave
no doubt that that great, heart of his will
resDond with satisfaction, yes. and with.
joy. when a jury of Oregon citizens have
decided tnat jonn i. .uucneii is not
guilty under the charges of this indict
ment. No. no. gentlemen; do not proceed
with the consideration of this case under .
the theory that vou are aiding the Gov
ernment of the United States Inthe pros
ecution. The Government has notntng to
demand from Juries except that jurymen
shall do as they swear they will do. faith
fully try the issues between tne state
and the accused, and a truo verdict ren
der according- to the evidence and the
law. There is nobody oewnd tnis prose
cution- whose wishes ought to be consid
ered by you In innuencmg your consia
oraUnn of the testimony, not one.
Whereupon the court admonished the
iurv as usual and an adjournment was
4aken until 10:00 A. M.. July 1. ISOo.
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