Now,'when they came to write this indictment, why did they not tell the truth in it? I do not mean that in an offensive sense, because a man has the right to write in that indictment what he wants to. That is a matter of pleading. But why did they not tell the facts? Why did they put in the indictment that a certain petition was filed on the 26th day of June, when they had the petition before them and knew that it was filed in April, 1879? Why did they put in that indictment that a certain affidavit was filed on the 26th or 27th of May, I think it was, when they knew that it was filed in April or March? Why? Because if they had put that in the indictment the indictment would have been quashed, so far as their overt acts were concerned. The Court would have said, "I cannot allow you to put on paper that a man entered into a conspiracy on the 23d of May, and then did an act to carry that conspiracy into effect in April before that time. I cannot allow you to do that, because that is infinitely absurd, and pleadings have to be reasonable on their face." But you see they stated that this was done after the conspiracy. They had to do it or they would be gone. I believe there is no dispute about this law that if they describe the overt act—and they must describe it, because it is a part of the offence—that is, the offence is not complete without it—they must prove it exactly as they describe it.
If they describe it with infinite minuteness, they must prove it with infinite minuteness. If they set out that an affidavit was written on bark, they must produce a bark affidavit. If they were foolish enough to say it was written in red ink they must produce it in red ink. If they allege that an oath was sworn to twice before two notaries public they must produce an oath sworn to twice. They are bound to prove exactly what they charge, and if they were too particular about it that is their fault, not ours.
I say that all these, with the exception of the two routes I have named, were filed too early to play any important part in this case. Now, I will come to those routes. Remember, that every overt act must be after the conspiracy. There are two exceptions, and those two exceptions include petitions and affidavits. And there is a splendid kind of justice in the way this thing is coming out, so far as that is concerned.
The petitions filed on the Toquerville route and on Bridge Creek route, I believe, are genuine; I believe the Government admits that they are honest; and they were not attacked except upon one point, and that was that a daily mail did not mean seven times a week. The point made by the Government was that a daily mail meant six trips a week—that is, where you have them every day. We took the ground that daily mail meant a mail every day, and that in the Western country, as here, they have seven days in a week.
We contended that you cannot have a daily mail without having seven trips a week. I think that was the only point made against these petitions—that they were for a daily mail, and that somebody put in a figure 7.
No petition for increase of service alone was ever attacked by the Government in this case, except 25 L, on The Dalles route, and 20 H and 29 H, on the Canyon City route. 25 L was filed April 23, 1879. That was one month before the conspiracy had life. Consequently that is mustered out of this case as an overt act.
23 L was filed June 27, 1879, and is in time, provided it had been a dishonest petition. And it is the only petition filed on the date alleged in the indictment, and it was not attacked. It was signed by the business men of Baker City, and is set out, I believe, on page 1617.
20 H was filed May 7th. That is not in time. That is gone.
29 H has no file mark, and never was proved. So that goes.
All the allegations as to false petitions for increase of service—and by that I mean additional trips—are shown to have been genuine, honest, true petitions.