I ask you, gentlemen, what evidence is there in this case that Mr. Brady ever conspired with any of these defendants? I will answer that question before I get through, and I think I will answer it to your entire satisfaction.
I will go a step further in this case, and I may go a little further than the Court will go. I say that when they state in that indictment that an order is made for the benefit of Miner, Vaile, and Dorsey, and the evidence is that it was made for the benefit only of Vaile and Miner, that is a fatal variance, and it cannot be treated as an overt act for any conspiracy. And when the indictment charges that an order was made for the benefit of S. W. Dorsey, and Vaile, and Miner, and it turns out that it was made for the sole benefit of S. W. Dorsey, I claim that that is a fatal variance.
Gentlemen, I was going through all these overt acts and all these terrible false claims. But the decision of the Court has utterly and entirely relieved me from that duty. So I will turn my attention to another person.
The next defendant to whom I may call your attention is Mr. John W. Dorsey. It is claimed that John W. Dorsey was one of the original conspirators; that he helped to hatch and plot this terrible design. Let us see what interest John W. Dorsey had. You have heard me read the agreement he made, have you not, with Miner? Now, let me read to you the agreement that he made on the 16th day of August, 1878. Now, we will find out what interest John W. Dorsey had in all this conspiracy. On the 16th of August, 1878, there was no reason for telling any lie about it. They could not get on the routes in August, 1878; they had not the money, and so they took in Vaile. At that time, gentlemen, there was no reason for their writing anything in this paper that was not true, not the slightest. And I take it for granted that most people tell the truth when there is no possible object in telling anything else, if their memory is good:
4th. The profits accruing from the business shall be divided as follows: From routes in Indian Territory, Kansas, Nebraska, and Dakota, to H. M. Vaile, one-third.
To John R. Miner, one-sixth; to John M. Peck, one-sixth; and to John W. Dorsey, one-third.
From routes in Montana, Wyoming, Colorado, New Mexico, Arizona, Utah, Idaho, Washington, Oregon, Nevada, and California, to H. M. Vaile, one-third; to John R. Miner, one-third; to John M. Peck, one-third. [Page 4014.]
And to John W. Dorsey nothing. The entire interest of John W. Dorsey in the whole business was one-third of the profits on routes in the Indian Territory, Kansas, Nebraska, and Dakota. This was signed by H. M. Vaile, John R. Miner, John M. Peck, and John W. Dorsey, and I believe these are all admitted to be the genuine signatures of the parties.
The only routes mentioned in this indictment in which John W. Dorsey on the 16th day of August, 1878, had any interest whatever were: Kearney to Kent in Nebraska, Vermillion to Sioux Falls in Dakota, and Bismarck to Tongue River in Dakota. Remember that, gentlemen. That is very important. The evidence is that he sold out his interest in the following December, made a bargain for ten thousand dollars, and the evidence is that he received the money, and the evidence is that after that he never had any interest in the profits, no matter how much was made. And yet these gentlemen say that he was part and parcel of a conspiracy formed on the 23d of May, 1879. Long before that time he had sold out every dollar's interest he had, and had no more interest in it than though he had never existed. He got his ten thousand dollars; that was all. Now let us see what he did when the routes were divided.
Mr. Merrick. When did you say he sold out and got the money?