Mr. Ingersoll. Ay, "Why did you not bring James W. Bosler?"
Mr. Merrick. Yes, but not as to proof of money; but as to other questions in reference to the distribution of routes and the loaning of money by Dorsey, and by Bosler to Dorsey, and Dorsey's transfer of the routes to Bosler as security for the loan as appeared in Vaile's testimony.
The Court. I shall not interfere.
Mr. Merrick. I shall not attempt to arrest the course of counsel unless there is ground for it, and I ask the Court that, there being no evidence of this fact, that the counsel shall not—Mr. Ingersoll. [Interposing.] I am going to show there is some evidence.
The Court. I understand it is a remark in reply to an observation of your own.
Mr. Ingersoll. That is principally it. Now, they introduced the warrants that had been drawn by the contractors and subcontractors from the Post-Office Department; they proved that these warrants had been paid to James W. Bosler, and that one after the other, hundreds had been assigned to James W. Bosler. Now, then, I say, they say to us, "Why do you not bring in James W. Bosler and prove your innocence?" I say why did you not bring in James W. Bosler and prove our guilt? We opened the door. We told you the name of the witness. We told you that he had taken the routes; that he kept the books; that he disbursed the money, and that we had lost money. Instead of robbing the Government the Government has robbed us; and they say, "Why did you not bring Bosler?" and I say to them, why did you not bring him? They know him, and they know he is a reputable man.
Now, there is another point. I ask you all to remember what was said in the opening, and I understand that a defence is bound by its opening, bound by what it says to the jury. The question is, Has any fact been substantiated in this case that contradicts a statement made in the opening?
The Court. The defence has no right to avail itself of—Mr. Ingersoll. [Interposing.] Of what it says.
The Court. Of what it says in its opening unless it is followed by evidence.
Mr. Ingersoll. Certainly not, but it has a right to show that no evidence has been introduced by the Government that touches that opening statement. It has the right to do that, surely.