Mr. Ingersoll. They, of course, were found guilty, because they were guilty, as the indictment charged. They knew the exact scheme set forth in the indictment. They were guilty exactly as the indictment said. They divided the money exactly as the indictment charged they divided the money, and they were cognizant of every fact set forth in the indictment. But Watson, although a co-conspirator, did not know what was to be done with the money, and consequently was to be discharged. Why? Because they did not prove the conspiracy as to him as charged. They need not have set forth in the indictment what was to be done with the money, but they did set it forth, and then they had to prove it. They need not have said that every man knew what was done with the money, but they did say that every man knew, and they failed to prove it, and when they failed to prove it as to Watson he was discharged.
Now, gentlemen of the jury, what I insist upon and what I shall ask the Court to instruct you is that the Government, no matter how guilty the defendant may be, no matter if he has robbed this Government of hundreds of millions, is to be tried by this indictment, is to be guilty of this charge as written in this indictment and nowhere else; and he has got to understand it. They say he understood it, and they have got to prove that he understood it.
Now, upon that same subject they say that the money was to be divided between all these parties—between Rerdell, Turner and everybody. I think it was Mr. Bliss who said there was no evidence that Rerdell ever had any of the money. Certainly they do not think that Turner obtained any of the money. Is there any evidence of it? Not the slightest. Is there evidence that there ever was any division, any evidence that there was ever any money divided upon a solitary route mentioned in this indictment? Not one particle. If you say there is evidence, when was the division made?
The Court. The question is not what was done. The question is with what view the conspiracy was entered into.
Mr. Ingersoll. Certainly.
The Court. 'The object of the conspiracy may have failed, and this money might not have been divided as they intended, but still the conspiracy would be here.
Mr. Ingersoll. Good, perfectly. But if they set forth in this indictment that the money was divided, that statement is not worth a last year's dead leaf unless they prove it. That is all I insist upon. You cannot find anybody guilty of charges in an indictment unless you prove them. Unless you prove them they amount to no more than charges written in water, than characters engraved on fog or written on clouds. You have got to prove them.
Now, upon this same point I say that if the scheme has not been established by the evidence, the case fails, no matter what the proof. The offence must not only be proved as charged, but it must be charged as proved, doubling the statement for the sake of doubling the idea of accuracy. That is in Archibald's Criminal Pleadings, American edition, page 36. The same thing is held in First Chitty's Criminal Law, 213. I also refer to the case of King against Walker, 3d Campbell, 264; King vs. Robinson, 1st Hope's Nisi Prius Reports, 595. I have the books here, but I will not take up the time of this Court in reading them.
Now, if I am right, that is the language of that indictment. The overt acts with the leaves are gone; the scheme with the branch and trunk are gone. They prove no such scheme, they prove no such division.
I will now proceed to examine the alleged evidence against my clients, Stephen W. and John W. Dorsey, and I want to say right in the commencement that suspicion is not evidence. You charge that a couple of persons conspired. That they met about nine o'clock on the shadowy side of the street.