Now, they say, "Why didn't you put Bosler on?" Not much necessity of Mr. Bosler after that. And besides, gentlemen, I believe I will take you into my confidence just a little bit. The evidence of Rerdell as to the affidavit of June 20, 1881, and the affidavit of July 13, 1882 (an affidavit in which he swore that there was nothing against Mr. Bosler, an affidavit that was made apparently for the benefit of Bosler), all that evidence, the evidence of Mr. Stephen W. Dorsey upon those questions, advertised the prosecution that Mr. Bosler knew of many circumstances; that he was present a portion of the time, and I did not know but finally the prosecution would get so much confidence in Mr. Bosler that they would call him. I was hoping they would. They did not. It did not work quite as I expected. That is all there is about that.
Now, there is one further point to which I wish to call your attention. I want you to remember that a partnership is not a conspiracy, although all the facts about a partnership are consistent with the idea of a conspiracy up to a certain point; and all the facts about a conspiracy are consistent with a partnership up to a certain point. The fact that men act together does not show that they have conspired; does not show that they have a wicked design. The fact that they are engaged in the same business does not show that they have a wicked design or that they are there by conspiracy. In other words, I want your minds so that you will distinguish between a fact that may be innocent, and generally is innocent, and a fact that must be evidence of guilt. I want you to distinguish between the facts common to all partnerships, common to all agreements, and those facts that necessarily imply a criminal intent. If you wil do that gentlemen, you will have but little trouble.
[At this point a volume of the report of the trial was handed up to the Court by Mr. Ingersoll with a reference to a certain page].
The Court. Without looking at the book I take risk of saying that the Court never announced its opinion on that question until the case referred to a few moments ago.
Mr. Ingersoll. I just gave my memory on the subject. It does not make any great difference in this case, of course.
Mr. Carpenter. This is during the cross-examination of Rerdell.
The Court. Yes, the Court did state on that occasion:
That is not the point here. If they are allowed to go on and cross-examine this way without the production of the books, they cannot contradict the witness afterwards by producing the books.
I had forgotten that I had announced it twice.
Mr. Ingersoll. If the Court please, I did not want to bring this up, because I knew you had, and so I thought I would slip you the book and let you off easy.