Morning Oregonian. (Portland, Or.) 1861-1937, July 04, 1905, Page 10, Image 10

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sound and reasonable course that was
suggested to him by Tanner, and coming
out and caying. "I have never done any
thing wrong. If those fees were received,
they were never recelvd with my knowl
dre," and making a clean breast of that
if that was the truth, the guilty mind
which carried that knowledge on the cars
all the way from Washington the Kribs
matter, although there had been no rumor
about it. and took it up at the first op
portunity with Tanner the guilty mind
sought a way out. Which way they have
jiDt even attempted to excuse, because
they adopt "such miserable and absurd
expedients" the changing of that con
tract, the contract being written on paper
different from any paper that had been
uted In the office of that firm, and yet a
contract written -with black Ink. when up
to within six months before green Ink or
blue Ink had always been used.
Mr. Bennett: We object to that on the
ground that there is no evidence of It.
The Court: The Jury will have to deter
mine what the evidence is.
Defendant excepts.
Vagary of Guilty- Mind.
Mr Heney That contract which is
before you, and which in one paragraph
-ha three misspelled word?, by which the
party who wrote it might be detected,
Rll in the one paragraph that was
changed; wbrds which Robertson never
would have- misspelled; the word, salary,
"salery." the word constituent, "con
ytltuant," and some other word which I
have now forgotten; the absurd expedi
ent of changing that contract when upon
the face of the original contract there
was no guilt, but guilt In the mind of
Benator Mitchell, because he did not ex
pect to take fees for services performed
before the department at the time he
executed the contract or he never would
have been afraid of the contract aftcr
warda The absurd expedient of destroy
ing or suggesting the destruction of
ooks. All matters which, as Is said
here, "he has recourse to smch miserable
and absurd expedients for covering his
guilt as all those who are used to sit
in the peat of Judgment know have been
the cause of detection of half the vil
lainies In the world." Nothing truer was
ever stated. Practically every crime
that Is discovered Is discovered by some
'abwrd or inexpedient thing which Is
adopted by the prisoner to hide his guilt;
Just as In this case, because Jf that ex
pedient had not been adopted in this
cape, how do you suppose the Govern
ment would ever have succeeded in get
ting the books of the firm of Mitchell
& Tanner, or If it got the books of get
ting all that correspondence. Tanner was
guilty of nothing: Tanner could have de
stroyed the books and destroyed the
correspondence and nothing could have
been done to him for it. And if that
had been done, what chance would Jus
tice ever have had of finding the guilty
jerson in this case. But the guilty mind,
that stubbbornly Insisted upon adopting
these absurd and miserable expedients,
when advised to the contrary hy Tanner,
the mind that appealed to Tanner out
of its guilty conscience and begged Tan
ner and appealed to him in such a way.
as he say. that he had to agree that
he would not only commit perjury him
self, if necessary, but have his son do
so likewise, to save this man rather than
be accounted as having deserted him in
bis- old age in time of trouble: that
guilty mind that goes back and admits
to Robertson in Washington tli-it he did
get a few small checks: that guilty mind
that goes back to Washington and writes
a letter to Tanner in which he tells him
what It Is that is to be sworn to. tells
him not to get alarmed, and tells him
to come to Washington with the books
and put them in the bottom of his trunk,
and not let anv one else know that he
is bringing them, because he is anxious
to see the books, although he had gone
through item by item In December, in
reality because he Is anxious to get them
out of the Jurisdiction of this court be
fore they were taken before the grand
Jury, so that ho can destroy the thing
which he says would not only Indict, but
convict him; that guilty mind Insists
upon these expedients, and then they tell
vou that the power of the District Attor
ney is held over Tanner to make him
testify to the satisfaction of the District
, Stand Jury Sol Led.
Now. gentlemen of the jury. I have
no right to sav to you that I believe this
defendant guilty; but I do have a right
to av to vou that, in my opinion, a dis
trict attorney who would advise a grand
to Indict
man upon evidence
which he aia not oeneve estaDiisnea me
man's guilt bes'ond a reasonable doubt.
liDlstrlct Attorney who would place upon
the witness stand. In a prosecution, wit
nesses to testify who he did not believe
were telling the truth I say to you that,
in mv opinion, such a District Attorney
Is unfit to live among decent men. I say
to you that. In my opinion, the District
Attorney who would do any one of those
things that have been charged here in
ierentlally as having been done by me.
is a greater criminal than any man who
now wears stripes in the penitentiary of
Oregon. I can say that much to you,
and I can appeal to you and the people
of Oregon to Judge me by my acts. That
grand Jury has been accused of being
the tool of me led round by the nose.
That grand Jury, gentlemen, was com
posed of 21 Oregonians. every one of
them .citizens of your, state selected ac
"cording to the due process of lav.-, and
selected before I had anything to do with
it. They had met. and held court for a
week, and adjourned and met again be
fore I ever saw them. They tell you .
tnat i couia go oeiore iiihi jury,
and In that secret place, out of the light
of day. that I could secure indictments
against your public men to pull them
down, just because I wanted it. I tell
you that that is a libel upon the man
hood of that Oregon grand jury. 1 tell
you that that Oregon grand jury was
composed of men like yourselves, who
-can be led around by the nose by no
person on earth. You know that if you
were sitting upon a grand jury and a
man from California came before you
and wanted to present evidence and ask
you to indict one of your United States
Senators you would scan, and critically
scan, every word of evidence that was
put before you. You would weigh the mo
tives with which he was proceeding. You
would reach a conclusion as to whether
he was a man who wanted only what
was right, and whether the evidence
justified the bringing In of an Indict
ment or not. before you would permit
yourselves to be used to place the stain
of an indictment upon a man who was
Iq the United States Senate. And If
you would do it you have a right to as
sume that the other 21 men who con
stituted that grand Jury would do like
wise; and you have a right to resent,
therefore, the reflection that has been
thrown upon them.
But, they say, poor Tanner! He be
came a witness for the Government of
the United States, and by reason of
having done so he is entitled, as the
Supreme Court of the United States has
said, to the equity of a pardon, no mat
ter what I may think. But if I could
exercise that influence over him. how
would it have been exercised? They don't
accuse me of being a fool; and yet I
would be one If I had exercised - It on
Tenser to abstract from him the con
versations between him and Mitchell
that he has testified to and I had hesi
tated to sav to Tanner. "Tanner, this
testimony of yours about never intend
ing to include Mitchell's services, in the
light of all this correspondence, is all
buncombe, and if you expect a pardon
at my hands, or a recommendation for
one. you will have to tell the truth in
regard to this matter, and let It be
known, what certainly must be the fact
Tanner is under my control and power.
wouldn't it have been a simple proposi
tion? Wouldn't it have been the first
thing to think of? Why. these evidences
af rullt are a collateral matter. They
are something from wmel vou infer commend the issuance of patent there- that it was underwood between the di
ultiiJSi n,l iT Jffi t,"f, for. the defendant commuted no viola- . fendant and Tanner that Tanner should
backward. But here would be the post
tlve proof, and It would be absolutely
consistent with every line that was ever
written from Tanner to Mitchell or from
Mitchell to Tanner. It would be con
sistent with every line that was ever
written in those books. And the same
r..ile,Lin i:J Tin ,-,rtn Lw, tlos. and knowingly received coninensa
thlng may be said in resard ; to Robert- tIon for 5D doing. then tne acceptance
son's testimony
somewhat unon that attack unon Rob
ertson. but I find that In order to keep
my word, and keep within the half hour.
T will have to omit it. Because I do
want to say one thing now. in closing. It
has been painted to you that the de
fendant is a poor man (and painted to
you not under sworn testimony), who had
to walk while others rode in carriages.
His private bank account Is in evidence,
and it shows that he received from
sources outside of his salary J1S.O00 the
first vear after his election to the United
States Senate. It shows that In the
four years he received aZ.GGO outside o!
his salary- His salary was J5000 a year,
which makes $20,000. making the sum
total JT2.000 that went into the hands of
Senator Mitchell In the four years that
he was Senator this last time. That is
518.000 a year $1500 a month 150 a day
Just think of it! 550 a day 51 with
which to eke out a miserable existence,
and pay for that Jlttle room of 14x16.
State of Oregon on Trial.
Now. gentlemen of the Jury. I to
you that If you believed beyond a reason
able doubt from this evidence and my
statement Is based entirely upon that "if,"
as my original statement was if you be
lieve bevond a reasonable doubt from this
evidence that this defendant Is guilty,
you have a right to Infer from that that
the outside public, and the outside .world,
and especially throughout the United
States, nave reached the same conclusion
from the evidence. So that If you have
reached that conclusion. I tell you that
you have a right to consider the fact that
the State of Oregon, and the standard of
Its citizenship, is now upon trial. You
have a right to assume that, if you have
reached that conclusion from this evi
dence, the outside world have also reached
It, and they are now watching anxiouly
to see whether the citizenship of Oregon
Is of such a standard that It will say "No
man Is above the law. and whenever our
public servants betray our trusts In this
manner, and we know it and have the
proof of it, we will stop it as quickly as
any state in the Union. I say to you that,
if you believe beyond a reasonable doubt
from this evidence that the defendant is
guilty, you have a right to assume that
President Roosevelt, to whose moral In
fluence I referred. Is not waiting anxious
ly, ond I did not say so. for the conviction
of a. man; but that if you believe, from
this evidence, beyond a reasonable doubt,
that this defendant is guilty, that he has
reached the same conclusion: and when
Senator Thurston says that President
Roosevelt would step at a point where
he had placed the man before a Jury of
his peers for trial. I say he is doing him
an Injustice. I say that President Roose
velt cares more for the standard of citi
zenship in every state In this Union than
he cares as to whether any Senator re
mains In the Senate or goes out, or wheth
er any defendant 16 convicted or not con
victed. The question that he is looking
anxiously for, if he is looking at all. is
not as to whether Senator Mitchell Is con
victed or not. but whether the State of
Oregon and Us citizenship Is convicted or
acquitted acquitted of the charge that It
will, out of sympathy or out of something
which has no place In a case, violate the
oaths of the jurors by rendering a verdict
of not guilty when the evidence is entirely
the other way.
Now, gentlemen of the jury, again I
thank you for the attention you have
given me throughout this case, and I leave
the matter in your hands, with the con
fident hope that justice will be done.
Thurston's Upheld Protest.
Mr. Thurston: If the court please, on
behalf of the defendant, we except to one
statement made by the District Attorney
in the course of his argument. It reads
'as follows: "Now. why wasn't an Indict
ment brought in against Senator Mitchell
for subornation of perjury after Tanner
had confessed? The evidence shows that
the grand Jury adjourned the day of that
confession, but met again to hold one
week. Then expired by operation of law
the end of the term; a new term com
menced. And In that week a great many
Indictments were crowded, and inasmuch
as Senator Thurston has asked- me the
question, there were some indictments
found that were not returned, because the
Indictments were not prepared. Among the
number was one against this defendant."
We except to that for the reason that It
is an unfair and prejudicial statement of
a fact not appearing In evidence; that the
records of this court show that no Indict
ment had been found by the grand Jury
as charged: that the statement of what
took place in the grand Jury room was
not only prejudicial to this defendant, but
was a violation of the duty, under the
lav.- and the oath of office, of the District
Court: Xke Jury will be instructed to
disregard the statement,
Instructs the Jurors on Various
Phases of the Mitchell Case.
The complete stenographic report of
Judge De Haven's instructions to the
Jury follows:
Gentlemen of the Jury:
You have patiently listened to the evi
dence that has been submitted to you in
this case and given close attention to
the exhaustive arguments of the respec
tive counsel, and it remains for me to
instruct you In such matters of law as
I deem proper for your guidance.
It Is a principle of law that a defend
ant, upon trial, is presumed to be inno
cent. This is a substantial right of the
Defendant, and the presumption Itself Is
a matter of evidence In his favor, and
is sufficient to entitle him to an acquit
tal, unless It has been overcome by evi
dence, which leaves In the minds of the
Jury no reasonable doubt of his guilt.
By reasonable doubt is meant such a
doubt as a reasonable man might enter
tain after he has endeavored to reach a
fair and honest conclusion as to the
weight of the evidence on which he is
required to act in returning a verdict:
or. stated In other words, a Juror may
be said to entertain a reasonable doubt
of the guilt of the defendant when, after
consideration of all the evidence, his
mind is In that condition that he cannot
say that he feels an abiding conviction
to a moral certainty, of the guilt of the
oeiendant. mat is when he cannot con
scientiously say that he is fully satlsned.
from the evidence, of the truth of the
charge made against the defendant
Gist of Indictment.
The Indictment contains seven counts,
in each of which the defendant Is charged
with violating section 1S72 of the Revised
Statutes, which, so far as Is necessary
for your information, is as follows:
"No Senator ..... after his election
and during his continuance in office ....
shall receive or agree to receive any
compensation whatever, directly or In
directly, for any services rendered or to
be rendered to any person, either by
himself or another in relation to any
proceeding, contract, claim, controversy
. . . or otner matter or thing In which
the United States is a party, or dlrectly
or indirectly Interested before any de
partment . . . bureau, officer, or any
clvli. military' or naval commission
The gist of the offense denounced by
this statute Is the receiving of compen
sation for services therein referred to.
The mere rendering of services by a Sen
ator before any department is not pro
hibited, but the intent and meaning of
the law is that if a Senator goes before
the department to render a service there
to any one In a matter pending there In
which the United States is Interested, he
shall not do it for compensation, either
given or promised.
V,hat Constitutes Violation.
.It was the privilege of the defendant,
as a Senator of the United States, to
make inquiries at the General Land Of
fice, or of any of Its officers. In regard
to the status of any matters therein
pending, and to make inquiries as to
what i-te'js had been taken by the officers
of the General Land Office, and what
steps might be contemplated by such
officers In connection with the Investiga
cated to Kribs and Tanner, and no at
tempt was made by the defendant to in
iluence Hermann to make special, expe
dite and approve the aiid applications or
tion ot tne statute. But n. oy letter or
otherwise, the defendant, while a Sena
tor of the United States, fought to in
duce Hermann as Commissioner of the
General Land Office, to make special.
expedite and approve tne said appllca.
'of .uch compensation was a violation of
the law which l have read to you.
First Count of Jndlctncnt.
The first count of the Indictment
charges, in substance, that one. Frederick
A. -Kribs. was Interested In a number of
timber entries of public lands In the Rose
burg land district, in the State of Oregon,
the several entries being set out In the
count: that said entries were pvnding be
fore Bulger Herrr-unn. Commissioner 'of
the General Land Office; that said Kribs
' contriving and Intending to defraud the
United States of its said lands and the
title to and use of the same." contracted jany other fact or circumstance which. transactions not Included In the Indlct
for the services of John H. Mitchell and iln vour ludement. mav tend to show that Iment. This evidence you will lav aside.
Albert H. Tanner, copartners In the prac-
tlce of law. as attorneys for him In ap-
peanng perore ana persueoinB
ninrrT- Hdrmunn tn make sooclal. expe-
dite and approve the said applications and J
claims, and recommend 'ss"a"c?1,5!5
paienus upon me zaim.-. ia iiivuf,.. ...w 'evidence. If sufficient for that purpose. . . l" . v" i )"., mcu.-
were lawful and bona tide applications and "n relation to cirnistantlai !lf V find such to be the facts, you may
claims": that such services were In fact evidence as applied in the trial of a i consider the Benson. Burke and other
rendered and were to be rendered before defendant chared with crime is this: ' transactions in considering the question
the said Blnger Hermann, as Commls- 'j"1 . cnfur juiTflndlnVa 1ether "e defendant knowingly re
aloner. as they, the said Mitchell & Tan- erof 1.Jm Hb J eWrelv on clr-iived compensation from Krlbs for the
ner. well knew, while the said John H. custantial evident the clrcunIknces fc charged In the indictment, and
Mitchell was a Senator of the United nn0lJa ? 'nsislent h the i considering that question, you will
States; that upon February 13. 1S02. the JBJJ:' " the defendant hut they must be 8va to this evidence such weight as you
said Mitchell Tanner, at the City of Kf with 2ny other reaeonabte thlnk 11 ls entitled to. And what I have
Portland. In the Distrlctr-bf Oregon, while that sa,d m "latlon to the Benson,
the defendant Mitchell was a Senator of evSence- or stafed in another form It !Burk and othcr transactions not charged
the United States .unlawfully received .f th
from the said Krlbs 5o00 for said services .. entnHde with account for and evidence offered by the Government In
rendered and to be rendered before the KeW render orobable the hypo'theMsi relation to tne Payment made by Krlbs
said Hermann as Commissioner in rela- "n dae,.?ted by the proVecutfon! In or about December 3, 1SQ3 1 (Gentlemen,
tion to the timber entries described in the 5LKVhev to a. moral i S 1 1 "' be mistaken about this date, but
count. . ..
-nrrA iirvi -rrf frtiirtn raunu ill e
ent date u "which iH alleged compen- ; guuj or ne jury must una tne oexena
satlon was received lb? Jbe decant f Qn drcum!,Untla,
eJh'?&&r3n evidence. Is not difficult to understand
fourtnJT,U"V!'Kf.nMiten T.?ner in the or apply. The jury In the first place
was received by Jtchell & Jonner In the niunFidtermtne Jfro-m lhc testimony of
rv.ttr.. w-. f-r nnA seven allece that
.u- JXZ-r r k rendered
iuc wniic 'V'"" "".l" tT-Xr:
?SroFthe renerkl : khd Office
rtKVlSmaTtf theie'tlons
In others as claimant, tnese sciecuuno
KsvinTwUhln the'llm.S oftortSt
serves o'uX'd VStS ' ' ,
These counts allege that compensation
was made to Mitchell & Tanner for the
services therein referred to. in the form
? L"K"n.l"c., "fi L" 1
slderatlon of the other counts, the Instruc-
tlons which 1 shall now give to you as to
the first count.
Directs Jury's Attention. ,
Directing your attention, now. to the '
nrst count, tne uovemment is noi re
quired to prove that the timber entries
therein referred to were, in fact, fraudu
lent, as stated In the Indictment, and It
will be vour dutv to return a verdict of
guilty, if you are satisfied beyond all rea
sonable doubt, first: That the timber en
tries referred to In this count were pend
ing and undetermined before Binger Her
mann as Commissioner of the General
Land Office, as charged In this count.
And second: That the defendant, at the
City of Portland, In the District of Ore
gon, while he was a Senator of the United
States, received from Kribs the sum of
JoOO. or some part thereof, with knowledge
that the amount so received was received
by him as compensation for services ren
dered, or to be rendered, either by himself
or Tanner, before Blnger Hermann, as
Commissioner of the General Land Office.
In relation to the timber applications de
scribed In this count, and for the purpose
of inducing him. the said Hermann, to
"make special, expedite ana approve ine
said applications and recommend the Is
suance of patents therefor."
If money, or a check representing and
havjng the value of money, was paid or
delivered to Tanner In this city for the
use and benefit of the defendant, and with
his knowledse and consent, or if such
money or check was deposited In a bank
m this cltv to the credit of Mitchell, and
with his knowledge and consent, this
moncv or check was, as a matter of law,
received bv the defendant In this city. It
is not claimed by the Government that
Kribs ever directly paid to the defendant
anv money as compensation for the serv
ice's described In this count of the Indict
ment, but the claim Is that the money
was paid by Kribs to Tanner, the defend
ant's law partner, and was afterwards
nald to the defendant bv Tanner In mak
ing a division of the earnings -of the law
firm of Mitchell & Tanner, by depositing money. The books further show that rL?q dispose of all of their personal prep
the same to the credit of Mitchell in a j the lax Was canceled in June. 1902, by ertv
wnK at 1 ortiano. ur. i nn onJer of thft county- Court, but the xhe migants were married In 15S1, and
"What Government Must Show. testimony dls-losed thut this entry have one child. Beginning In May. 1902.
' must liave been made long after the Hutchlngs alleges that his wife com
Upon this point I charge you that tho i ret.ord? Qf that day were written, anJ i menced a practice of leaving home early
fhnn that In the YlvWon of the earn-
lltS of the flr of MUcholl & TaSnSr I
the defendant received his share of the i
moneys paw Dy ivnos. out tne prooi
must go further and show you that
when the defendant received such money
he knew that It was money paid by
Kribs as compensation for services ren
dered, or to be rendered, either by him
self or Tanner in proceedings before the
Commissioner of the General Land Of
fice In the matter of the timber entries
referred to. and for the purpose of In
ducing the said Hermann "to make spe
cial, expedite and approve the said ap
plications and recommend the issuance
of patents therefor." In other words, a
guilty knowledge or intent upon the part
of the defendant roust be shown; that Is,
it must be shown that he knowingly re
ceived as compensation the money or
some part of the money paid by Krlbs.
The defendant is not trulltv of receiv
ing compensation as charged in the In-
dictment. unless at the time such com- i
pensatlon was received by him. he knew
that it had been paid and was received
bv him for services rendered or to be
rendered as charged in the indictment.
Presumption In Agreement.
The presumption Is that any agreement
which parties may make, and which Is
lawful according to Its terms. Is lawfully
intended, and anyone asserting that such
nn psrreraeni merny ii i-wt. t mi
for illecal nUrooses must prove the same.
and the jury are Instructed that the
partnership agreement entered into be
tween the defendant and Albert H. Tan
ner on the 5th day of March. 1901, for
carrying on the general law practice was
and is lawful, according to Its terms. The
provislon in that agreement which reads
os follows: "It Is understood and agreed
that the Interest of each of the parties
to this agreement, as to all services ren-
derod. nil moneys received and all busl-
ness done by the firm shall be the equal
one-half thereof, except that for -any
services which may be rendered by said
John H. Mitchell. In the City of Wash-
Ington. D. c. either in the Ssupreme
Court of the United States, the Court of
Claims, or before Congress, or anv of
the departments, shall be the Individual
matter and claim of said John H.
Mitchell, and all fees so earned by him
In either of said courts, or before Con
gress, or any of said departments, and
his salary as Senator, shall be the in
dividual property of said John H. Mitch-
T'ii8.11. in;
by the firm or either member of It, In
any omr place, save and except as
above shall be considered firm business
and the parties equally interested there
in" was such an agreement as the par
tics had a right to enter Into, notwith
standing his office as Senator of the
Vnlted States. It was his right to act
as an attorney In the Supreme Court of
the United States and Court of Claims,
or before Congress, or beforo any of the
departments. In all matters In which the
United States was not directly or in
directly interested, and unless It Is
proved that such provision In the part
nership agreement was Intended to cover
services before said courts or in Con
gress or In some department of the Gov
ernment with respect to matters In
which the United States was directly or
Indirectly interested, the said provision
In the agreement was legal and vou must
find that the defendant had nb unlaw
ful or Illegal purpose In embodying such
a nrovislon in the said agreement.
The defendant cannot be held criminal
ly liable for any agreement entered into
by his partner, A. H. Tanner, in the firm
name, or for any acts, professional or
otherwise. In connection with the mat
ters referred to In the indictment, unleot
It Is proven beyond a reasonable doubt
fendant and Tanner that Tanner should
so agree or act. or that the defendant
at th time such agreements were
entered into oy nis partner in the firm
name, or such professional, or other acts
were done by said Tanner In the firm
name unew ana consemea to tne raaK-
edge or consent upon the part of defend-
ant may be proven by circumstantial
,- . .
Defendant s Intent or Knowledge.
So nlm the nueetlon of the lrfoni!!)ni'
intent or knowledge, if you find that he
received any part of .the check given by
Kribs. is to be determined by you from
an oi tne iacis na circumstances sur-
"u,'r r ' ou
will consider not ohly the facts and clr-
cumstancej relied upon by the Govern-
ment to show this knowledge, but also
, tne defendant was without knowledge In
.reatjon to such matters. The Govern-
,ment is not required to furnish d rect
I .v.1 j. i t.
or lntcnU but sucn knowledge or Intent I
may be established by circumstantial
italntv Snd hn-ond a reasonable doubt.
!eve other hyppthesS i
- . . . . -
what 'are the facts and cir
cumstances In the case: the facts and
cumstances in tne c
"cirwimstancej. which vou
believe nave
'been established by the testimony, and
ess. and jags.? sk as
Sc"l Tnt f.'when thevldcn is thus
, . j ' ntiafliHl In vour own
Atrnl if'you Sot
dut to so dc Clare, and If vou are not
l11. U will , rLStv
,der a not guUg. tcnd
Ine to Sff that fees may have beerU
Ul' ftnJ&.S
matter and a number of other
Tax Paid by Check, but
County Is Out.
Queer Fact Brought to Light of
Check Being Cashed by Former
Deputy County Clerk
William Stlmson.
The suit of Multnomah County
against the Portland Cracker Company
to recover JSOO personal taxes was
tried before Judge Cleland yesterday !
and brought 5i -5221," I
Ings under a former County Clerks,
administration. The tax was compro- .
mised In 1901 by the payment of $2a0. j
but the county never received the .
waslorged. William M. Cake. Phllo Hoi-
brook and W. It. Steele, who comprised
the County Commissioners' Court in
June 1903. testified that no order was :
,' w.. .i . .11.,.- .i.
Anthony Neppach, wno Is associaten
In business with Louis NIcolal, testified
that in April. 1901. William Stlmson.
who was then a deputy In the County
Clerk's office, called to see Mr. NIcolal
In relation to this tax, thinking Mr.
NIcoln.1 was largely Interested in the
Portland Cracker Company. Neppach
said he Informed Stlmson that NIcolal
had sold his stock In tne cracker com
pany and advised Stlm.on to see Her
man Wittenberg. As he, Neppach. and
Wittenberg- were owners together In
an Alaska mine, and desiring to see
Wlttenbertr. Ntppach stated that he
walked over to the office of the cracker J
company vvitn stlmson. ine laner
stated that he had autnorlty from the
County Court to compromise those old
taxes, and clean up the books. After
consulting with his attorney, W. D.
enion. nmcuui, ''" "w
cept the proposition made by Stlmson.
' Mr. Neppact testified further that as
he haJ brought Stlmson to Wittenberg.
Mr wittenherir made out tne check In
his name some days later or the same
day told him to settle the matter.
He went to the office of the County
Clerk and did so. receiving a certificate
ol cancellation siKnea uy
J stake. He Indorsed the cneck In blank,
J The check vas Introduced in evidence
anJ sj,ovva that It was Indorsed nnd
h.. crimson Mr Wlttenbertr
cashed bv stlmson. air. v ittenoerg
tola of tne visit of Stlmson and tne
acceptance of his offer. He stated tnat
, SOme time previous and before the
pnrtlnr.,, craeUer Comnanv
Portland Cracker Company sold to the
Pacific Biscuit Company. Williams.
Wood & LInthlcum. attorneys for the
latter, looked up tax matters, but did
not discover this personal tax. Mr.
Wittenberg said he did not know such
a tax was due and unpaid until Stlm
son called his attention to It. Seng-
stake explained that his connection
with the case was In the course of his
regular duties In the County Clerk's
office. He made out tne certificate on
request but the money was not paid to
him. Judge Cleland took the case
under advisement.
This transaction Is one of several
brought to light by George Black, who
experted the books for the county
commencing three years ago. Mr. Black
was engaged at the work lor over a
year. '
Real Estate Dealer and Property
Owner Go to Law.
1 Caroline Baum Is seeking to recover
5V) from O. M. Smith, an abstractor of
titles and real estate dealer, and Smith
hao sued Mrs. Baum to set aside an
award of a board of arbitrators in favor
of Mrs. Baum for the amount In dispute,
The trial of the case was begun yester
day before Judge George.
The evidence submitted In the case dis
closed that Mrs. Baum owns land at
Twenty-third and Roosevelt streets,
which she mortgaged to Smith for J2CO.
and he entered Into an agreement with
her that he was to use the money "build
Ing two houses for her. Mrs. Baum and
' Smith subsequently had a controversy
i ercct tne hous according to contract,
ano William Ballln. E. E. McLaren and
' H. E. Stemler were appointed a board
j of arbitrators to decide the difference
between the contestants. McLaren was
f at the time Smith's architect, and. ac
! cording to testimony given at the trial
' by McLaren. Stemle'r and Smith have
! had business relations toeether.
i McLaren testified that he wa dl
I Kted with Smith because he would not
Llve "P to.nI contract with Mrs. Baum
btemier. tne witness said, would not
1 agree to an award, saying, "I can't ai
U"UI 'ou h)f determined from all
l"? other evidence In the care that the
"'iiuTr .2. ra .Sr lVei P. v .
.chanced in this count of the Indictment.
actually received a portion of the
P b' to Mitchell & Tanner.
If I am you will nave to correct me in
i.hif mart.rl mwiwrninc rerrmn iiit
lections, because this transaction, what
ever It may have been. Is not charged In
the indictment.
Presumptions of Fact.
Presumptions of fact ace Inferences as
to the existence of some fact drawn from
the existence of some other fact Infer
ences which common sense draws from
circumstances usually occurring In such
cases. Presumptions of fact are proved
from circumstances or a particular case
by means of the common experience of
mankind. Men are presumed to act ac
cording to their own Interests. It Is pre
sumed that regular and ordinary means
are adopted for a given end; so where the
menns calculated to attain a certain end
appear to have been adopted, and the end
Itself appears to have been attained It is
presumed that the accomplishment of
such end was Intended.
It Is a general presumption that a per
son intends whatever Is the natural and
probable consequences ot his own actions.
ford to sign that, because I am In busi
ness with Smith," and walked out, Mc
Laren said he reached an agreement
with the other arbitrator. McLaren fur
ther testified that he drew the plans for i
the houses, and was ashamed of the way
they were built, "Ordinarily." said the
witness, "If the contractor don't live up
to the plans and specifications, as the
architect I order the money withheld,
but I could not hold It back in this case,
because Smith had all tho money."
Mrs. Baum. when Smith refused to
abide by the award, employed Spencer Ss.
Davis, attorneys, who sued him and at
tached. Smith retaliated by suing her to have
the award of the arbitrators set aside.
Smith contends that the houses are
much better built than the contract calls
for. although the material Is not the
same In every Instance as called for In
the contract. He endeavored to show
that McLaren Is prejudiced against him.
The trial has not yet been concluded.
Unhappy Couples Seek Helcasc From
the Matrimonial Bonds.
George E. Hutchlngs has sued Annie R
Hutchlngs for a divorce In the State Cir
cuit Court and Judge Frazcr at his re
quest has signed an order enjoining Mrs.
Hutchlngs "hJnK J
. wJfe aU Qf h,3
J demwlted In her own
name' and ne tnat she Is
K,. ,n ,rtnT.r i to her own use. and
In the evening about five nights each
week, and remaining away until midnight
She would not attend to her household
uuues. ana ne wuhkuci
own breakfast. She told him he was
like a beast and ought to go out and
live with the horse. This treatment
Hutchlngs avers, caused him great dis
tress and mental suffering.
Hattle E. Grim has Instituted suit
against Ralph C. Grim for a dissolution
of the matrimonial bonds because of
desertion beginning in June, 1903. They
were married In Clackamas County In
Seek to Be Declared legatees.
G. H. Dressel and Mary Dressel filed a
petition In the County Court yesterday
In the matter of the estate of H. W.
Corbett. asking to be allowed $200. The
will of H. W. Corbett provides "I give and
bequeath to each of my house servants
In my employ at the time of my death.
$100 each."
The petitioners declare that at the time
of the death of Mr. Corbett and for a
long time prior thereto, they were en
gaged as house servants on his farm near
Corbett station. This was not Mr. Cor
bett's residence, but the petitioners think
they were entitled to be classed as house
servants with others.
Filed Papers in Divorce Suit.
Tho Sheriff yesterday filed papers in a
divorce suit filed In Oregon City by Mabel
C Hansen vsT C. E. Hansen.
The destruction, suppression or fabrica
tion of evidence by a ptrty creates the
Impression that the truth is detrimental
to his interest, and If the jury believes
from the evidence that the defendant en
deavored to Induce Tanner to destroy the
books of the firm, or to suppress the evi
dence contained therein, or to destroy or
suppress the-orlglnal articles of copartner
ship, or to fabricate a defense, or that
defendant signed the ante-dated agree
ment, which was executed In December.
1301. with the Intention of having It used
In this defense, you may give these or
any of these circumstances as much
weight as you believe they are entitled to
as tending to establish the guilt of the
You are the sole judges of the credibil
ity of the witnesses, and you must give
such weight to the testlmany of any wit
ness, as. under the circumstances of the
case, you think It Is entitled to.
To Proceed "With Caution.
If, in your Judgment, any witness In
giving testimony before you. testified will
fully false In respect to any matters. It
Is your duty to proceed with very great
caution In determining how far he is to
be regarded as having spoken the truth
In other parts of his testimony. In deter
mining what weight to give the testimony
of any witness, you should consider
whether or not such witness has been
promised immunity from prosecution on a
criminal charge as a consideration for his
testimony, given or to be given in the
case, and you can also inquire whether
or not such witness has testified In the
hope of being pardoned of a crime com
mitted by him, and for which he has been
indicted In the court, and to which he has
pleaded guilty. You will not reject the
testimony of any such witness if you be
lieve It to be true, but you will give such
laltn and credit to tne testimony ot any
such witness as you think It Is entitled to. ' in accordance with your conscientious be-
ou have no right to take the fact that Hef as to the truth of this case,
the defendant has not testified In the case f With these Instructions, gentlemen, you
as In any way against him. It was his r may retire and deliberate upon your ver
privilcgc. not his duty, to testify, and I diet.
Librarians of the Country Con
vene Today.
Sessions Will Last Five Days and
several Hundred Persons Will
Be in Attendance at the
The men and women who hand out
books to the multitudes are In Portland.
They come as delegates to the 27th an
nual convention of the American Library
Association, which will convene at 11
o'clock this morning In the parlors of
the Hotel Portland, the first open session
to be this afternoon At 2:9) oC!3ck In the
First Unitarian Church. Seventh and
Yamhill streets. The majority of the
delegates arrived last night on a special
train from New York, Boston. Chicago
and way points. The convention will last
for five days, and there will be several
hundred persons In attendance.
. The present officers of the association
are Dr. E. C. Richardson. Princeton Uni
versity Library, Princeton, N. J., presi
dent; Frank P. Hill. Brooklyn Public Li
brary", first vice-president; Luite E.
Stearns, Public Library. Madison, Wis.,
second vice-president; J. I. Wyer, Jr.,
University of Nebraska Library. Lincoln,
Neb., secretary: G. M. Jones, Public Li
brary. Salem, Mass., treasurer: Helen E.
Haines, editor Library Journal. Now York
City, recorder: Nina E. Brown, of the
publishing board of the association. Bos
ton, registrar. On September 1, 1904, the
association had a membership of 1371,
and there have been many added since
that time. There will be nearly this num
ber of delegates, as, with few exceptions,
there la but one member from each li
brary The association was organized
October 6. 1S76. and was Incorporated De
cember 10. 1S97. The purposes mentioned
in the incorporation papers were to ef
fect needed reforms and Improvements,
lessen labor and expense of library ad
ministration, and for the promotion of
social Intercourse among librarians.
. Last Convention In St. Louis.
The last convention of the association
was held In St. Louis, and there were
but 577 delegates In attendance. Officers
of the association stated yesterday that
it was a certainty that the number at
the Portland convention would be almost
twice as large. During the general ses
sions and In the sections the topics treat
ed will be those of Interest to llbrary
workers. The association holds annual
onventIons for instruction and not for
Distributers - Allen &
you have no right to draw any presump
tions against him because he has not tes
tified. In conclusion, I cannot do better than
to use the language of another Judge in
charging a Jury In another case, when a
Senator of the United States was charged
with the violation of the same statute
upon which this prosecution Is based.
"The case is important because the ac
cused Is a man occupying a high and hon
orable position in the public service, whose
reputation and usefulness may be serious
ly affected bv your verdict. The case is
Important, too. because it involves an al
leged violation of the law Intended to pro
mote the public welfare and secure effi
ciency In tne public service.
"In approaching a final consideration
of the case, you should bear In mind that
the law, and the courts of the land, organ
ized to administer It. are not and cannot
be any respecters of persons. The high
and the low, the weak and the powerful,
must alike be subject to their behests."
Sole Judges of Credibility.
As before stated, you are the sole judges
of the credibility of the different witnesses
who have testified in your hearing, and
you are also the exclusive Judges of the
facts In the case. That Is to say. it Is
your exclusive province, upon conslderar
tion of allhe evidence, to determine what
facts have been proven and upon you
rests the sole responsibility of returning
a verdict which shall be In accordancs
with the justice and truth of this case. A
grave and solemn responsibility rests
upon you. No public clamor, it there bo
such, whether for conviction or for ac-
Sultaal; no feeling of sentiment or preju
icc against or sympathy for the defend?
ant. If you have sucn; no consideration of
consequences which may result from your
verdict, should be permitted. In any man
ner, to Influence your deliberations, or in
duce you to return a verdict which Is not
entertainment purposes, and not until th
work- -at hand has been done, and each
delegate has related to the others the
bit of experience he or she- has found of
value in the past year, will entertain
ment be thought of. There will, of
course, during the progress of the con
vention, be visits to points of Interest In
the neighborhood of Portland. ' and upon,
a day yet to be selected the delegates and
officers will visit the. Centennial In a body
and drink In the glories of the Dream
This morning the official council will
convene In the parlors of the Hotel Port
land, at which time plans will be formu
lated fdV the convention, and the nomina
tion of officers will be made. It is un
derstood that there will be a certain
amount of good-natured rivalry among
several contestants for the more impor
tant offices. The majority of the present
officials are candidates for re-election.
The first general session will take
place this afternoon at 2:30 o'clock at the
First Unitarian Church. Seventh and
Yamhill streets. The entire afternoon
will be taken up by the reports of. of
ficers and trustees. It is expected that
the reports of the secretary and treas
urer will reveal the healthy condition of
the association. There will be reports
from the trustees of the endowment fund
and of the official council. The following
chairmen of committees will make their
Morning session In Hotel Portland
parlort 11 A. M.. meeting of A. L. A.
official . council and nominations of
Afternoon session. Unitarian Church,
Seventh and Yamhill streets: 2:39
P. M. First general session, officers
reports, reports of secretary and treas
urer, report ot trustees of endowment
fund, report ot official council, report
of chairman of finance and of com
mittee on public documents. Adelaide
R. Hasse. chairman; report committee
on foreign documents. C. H. Gould,
chairman: report of International co
operation committee: report of pub
lishing board. W. I, Fletcher, chair-,
man; report of library training com
mittee. Mary W. Plummer, chairman;
report of committee on library admin
istration, by Chairman W. R. East-
annual reports this afternoon: Adelaide
R. Hasse. committee on public docu
ments': C. H. Gould, committee on for
eign documents; W. I. Fletcher, chair
man of publishing board: Mary Wl Plum
mer, committee on library training, and
W. R. Eastman, comm.lttee on library
The evening will be spent by the dele
gates and their friends In various ways.
Everyone will shift for himself or her
self and have a good time celebrating
the Glorious Fourth after passing
through an Important session of the con
vention. On Wednesday morning ths
real work of the convention will begin,
and from then until the end of the five
days session, the delegates will be hard
at work. An Item of special Interest will
be the report on gifts and endowments to
American libraries for June to Decem
ber. 1904.