The next route is 40104. Overfacts: First. Fraudulently filing a subcontract. That you cannot do. When did we file it? July. 23, 1879, the indictment says. What does the evidence say? May 8, 1879. First, we could not commit the offence; secondly, you could not prove it under this description.
Second. Filing a false oath. When did we file it? July 23. That is what the indictment says. What does the evidence say? November 26, 1878. A fatal variance. See record, page 1305. That is the end of that. The indictment is for something. You have got to follow it, and it certainly is not as hard work to write an offence against a man as it is to prove it. If they cannot write an offence, you certainly ought not to find the man guilty. Besides all that, that oath was not even impeached, it was not ever attacked. There was not a word said upon the subject except in the indictment. It was charged to be false, and not one word of evidence was offered to this jury to show that it was false.
Third. An alleged fraudulent order of increase by Brady, July 23, 1879. Brady never signed any such order. It was signed by French. That is the end of it, no matter whether it was good or bad, honest or dishonest. That is the end of it, and yet there is not a particle of evidence to show that it was dishonest, but you must hold them to their own case as they have written it, and not as they wish it was now.
Fourth. A fraudulent order of April 10, 1880, allowing one month's extra pay on the service reduced. This order was not even proved by the Government. As a matter of fact, it was not offered by the Government; and if it had been offered, and if it had been proved, it would have only established the fact that Mr. Brady acted in accordance with law.
Now, we come to some more. 44160. First, filing false petitions. When did we file them? July 16, 1880. The proof is that they were filed long before that time The proof is that Peck, Dorsey and Rerdell had nothing to do with this route after the 1st of April, 1879, and the petition claimed to be signed by Utah people and claimed to be fraudulent in the petition marked 19 Q. It was filed on the 7th day of May, 1879.
That is a fatal variance. This indictment charges it was filed July 16, 1880. The petition cannot be considered.
There is another petition marked 20 Q, claimed to have been written by Miner, upon which the name of Hall is said to have been forged. It has no file mark whatever, and consequently cannot be the petition referred to in the indictment. That was filed. That, however, has been explained by General Henkle fully. This petition was identified by McBean, and was signed by him, and he recognized the signatures of many of the citizens of Canyon City. Mr. Merrick admitted that the petition, 19 Q, was never acted upon. As a matter of fact, orders had been made before the petition was received, which shows conclusively that they were not acted upon. The petition marked 20 Q, to which Hall's name was, as is claimed, forged, was never filed, and was consequently never acted upon. This charge stands as follows: Two petitions, one being filed May 17, 1879—a fatal variance—and the other not filed—another fatal variance. These petitions are both described as having been filed July 16, 1880. The variance is absolutely fatal, and these petitions cannot be considered. Besides, the order was made before the petition 19 Q was filed.
Second. The fraudulent order by Brady for increase of trips, July 16, 1880. The only objection to this route is that the expedition was made before service was put on. This was in the power of the Postmaster-General. It has been done many times, and is still being done by the Postoffice Department, and the fact that it was done in this case does not even tend to show that any fraud was committed or intended. That is all there is in that case. The petitions were never acted upon. One was never filed, and the other is not described, or rather is misdescribed.
Route 48150. Overt Acts: A fraudulent order by Brady reducing service to three trips a week, and allowing a month's pay on service dispensed with July 26, 1880. This point, gentlemen, I have already argued.
Whenever the Post-Office Department dispenses with any service it is bound to give one month's extra pay any time after the contract has been made and any time after the bid has been accepted. It is bound to give the month's extra pay on the service dispensed with, and this question, as you heard me say a little while ago, has been decided by the Supreme Court in Garfield's case. This route was operated by Sanderson. He was the subcontractor, and, according to the subcontract filed and presented here in evidence, he received every cent of the pay. We could have had no interest in perpetrating any fraud upon that route. Why? Because another man, J. L. Sanderson, received every dollar, and we not one cent.