ceive was merged in the receipt. As that was a matter in regard to which I did not care to depend entirely upon my own view, I got Mr. Merrick to give me a written opinion upon it, and I think you will all concede that you cannot find a much better lawyer than Mr. Merrick. I will read his opinion.

Mr. MILLIKEN. I suggest, Mr. Chairman, that instead of setting forth that opinion at length, we had better simply ask Mr. Ker whether Mr. Merrick agreed with him in his view.

Mr. VAN ALSTYNE. I think the opinion had better go into the record in justice to Mr. Merrick and Mr. Ker, and for the education of the legal profession. [Laughter.]

The CHAIRMAN (to the witness). What did Mr. Merrick state to you was his opinion of the law?

The WITNESS. I have Mr. Merrick's written opinion here. I obtained it before I framed the indictment. I did that as a matter of precaution.

The witness read the opinion as follows:

SEC. 1781. The original contract being to carry the mail for a certain price over the route for a specified time, is by the order of expedition and the addition of pay for such expedition so far modified as to come within the meaning of the law when it speaks of procuring or aiding to procure any contract." Such order of expedition is a new covenant, engrafted upon the original contract it is true, but the old contract is so far merged in the new in regard to duty to be performed and the consideration to be paid therefor that from the date of the order of expedition the old contract is no longer heard of, except in its original obligations to perform the new work on the new consideration. Under this section Brady and Kellogg should be separately indicted. Kellogg for procuring the expedition on the Corpus Christi and San Antonio route, and Brady for giving the contract of expedition on the Corpus Christi and San Antonio, and also for giving the contract for temporary service on the Soccorro and Silver City, unless the latter is barred by limitations.

* 料

SEC. 1782. Under this section there should be separate indictments against Brady and Kellogg for the expedition upon the Corpus Christi and San Antonio route "for services rendered in relation to a contract, # in which the United States is a party, the consideration being paid to them by drafts on the Corpus Christi and San Antonio route, which were delivered by Price to Kellogg and by Kellog delivered to Walsh for the benefit of himself, Kellogg, and Brady; and the period of the actual payment of the drafts was the period of receiving the compensation, though the "agreement" to receive was at a date when the offense would be barred by the statute of limitations. There should also be another separate indictment against Brady for receiving the proceeds of the two drafts on the Indianola and Corpus Christi, and the $2,500, which was contained in the same envelope as compensation for giving Price service on the Soccorro and Silver City, route, unless barred by limitations. Price's affidavit states that he informed Brady that he would pay this $5,000, if he would give him service on that route, and it further states that after service was so given he inclosed the drafts and the money in an envelope directed to Brown and laid the envelope upon Brady's table, calling his attention to it; and Walsh's testimony shows that Brady got the benefit of the drafts in his account with him, Walsh.

SEC. 5498. There might also be an indictment against Kellogg for receiving “a share of or interest in a claim," but I doubt if the indictment will hold, as the language of the section seems to contemplate at the time of the employment the existence of a money demand against the United States, and not the simple procurement of a con

tract.

There should be two indictments under section 1781 and two under 1782, and one against Brady under 1782 for the Soccorro and Silver City route.

The point that I wanted settled was the period at which the offense was committed, and Mr. Merrick, after consultation with me, gave me this opinion upon the law, and you see it accorded with mine, that the agreement to take the drafts was simply an agreement to receive and that the time when the money was collected on the drafts was the time when the compensation was "received," and it appears from what I have read that in December the court agreed with us upon that point.

By the CHAIRMAN:

Q. And, acting upon that opinion which you obtained from Mr. Merrick and upon your own judgment, you proceeded to draw the indictment? A. Yes, sir. The indictment sets out the actual dates upon which the Treasury Department paid the warrants. The act of Congress, you know, says "who shall receive or agree to receive directly or indirectly," and the question was whether Walsh was not acting as Kellog's agent, and whether payment to him was not an indirect payment to Kellogg. It was settled that it was. There are five counts in the indictment, each one specifying the dates on which the payments of money were made by means of these different drafts. The first payment was made on the 19th day of April, 1880, and this indictment was found on the 18th day of April, 1883, one day previous to the time when the first payment would be barred by the statute.

Q. So that none of the payments were barred when this indictment was found?—A. No, sir; none of the payments were barred.

By Mr. MILLIKEN:

Q. Then the misfortune of your indictment was that the court found the law to be different from what you had held it to be yourself?-A. Well, that I suppose would be about a fair statement of it. The court decided that receiving the drafts was the offense and that that was barred by the statute of limitations.

Q. That is the whole of it, is it not?-A. That is about the whole of it.

Q. Who appeared for the prosecution?-A. Mr. Reynolds, Mr. Worthington, the district attorney, and myself.

By Mr. VAN ALSTYNE:

Q. I understood you to say some little time since that prior to the finding of this indictment you had drawn an indictment in which the name of Kellogg was included?-A. Yes, sir.

sir.

Q. And that his name was stricken out of that indictment?—A. Yes,

Q. That indictment was before the grand jury which was organized March 6, 1882?—A. It was.

Q. At the time that indictment was framed were the officers of the Department of Justice engaged in the prosecution in possession of the same line of facts upon which the indictment which was subsequently found against Kellogg was predicated?-A. Not precisely; because we had not Price's testimony.

Q. Did you have knowledge of the facts ontside of Price's testimony?- A. Oh, yes.

Q. Do you know why Kellogg's name was taken out of that indictment, and by whose direction?-A. I only know that I was told that the grand jury did not present him, and therefore, they having failed to present him, of course I had to make the indictment apply only to Price and Brady.

Q. So far as you have any knowledge of the facts, was there any dif ference between the bearing of the evidence in possession of the prosecution upon Brady and the others against whom the bill was found and its bearing upon Kellogg?—A. Oh, if you want me to give an opinion

about the facts

Mr. MILLIKEN (interposing). We don't want your opinion; we want your testimony.

The WITNESS. Well, what am I to do? There seems to be a differ

ence of opinion here, and I want to know which one of you gentlemen 1 am to answer.

(The question was read by the stenographer, and Mr. Milliken withdrew his objection.)

A. From my knowledge of the evidence the case was as strong, if not stronger, against Kellogg than against the others; from the fact that, so far as I knew, the testimony of Walsh would be before the grand jury.

The CHAIRMAN. Proceed with your statement.

The WITNESS. While I was preparing the indictment against Kellogg Colonel Bliss came to me and said that he had been requested to come and ask me-I don't remember now whether he said he had been requested by Kellogg himself or by a particular friend of Kellogg-but he said that he had been requested to come to me and ask me to put the true dates in the indictment. I told him I never did anything else; that I would certainly do that, and I did put the true date of each payment in that indictment-the date upon which the money was paid by the Treasury Department upon the draft. Those were the dates that I inserted in the indictment for each case.

He

Q. That request did not influence your judgment at all? You intended to put in those dates anyway?-A. Certainly. After that indictment was found and was presented to the court Colonel Bliss left and went to New York. He said he was not coming back again. was indignant at the indictment being found. We coaxed him to come back, told him that he was not running the case; that the AttorneyGeneral controlled it; that the Attorney-General wanted the indictment found, and that we were proceeding under his direction, and finally Colonel Bliss agreed to go on with the case.

Q. You appeared before the grand jury?—A. Mr. Merrick sent me before the grand jury.

Q. Did you have a commission authorizing you to go before the grand jury?-A. I was originally commissioned with the intention that I should go before the grand jury if there was any necessity for it. But I want to say here that Colonel Corkhill rendered me very material aid in getting that indictment. There has been a good deal said about that gentleman in connection with these cases, and I wish to say that I never saw anything wrong about him. He was kind and polite, and he rendered me very material service in getting the indictment. After that indictment was found the defendant moved to quash and demurred. and the matter was heard from time to time, and finally it was decided, I think, on the last day of July-

By Mr. VAN ALSTYNE:

Q. You have been asked whether you were properly authorized to appear before the grand jury. Now, the indictment itself was signed by Mr. Corkhill, the regular district attorney, was it not?-A. Nobody else could sign an indictment.

Q. Therefore, there was nothing in the fact that you were before the grand jury representing him, that would invalidate or impair the va lidity of that indictment?-A. Well, they made that attack, you know.

Q. But it was a failure?—A. It was a failure. That was one reason why they wanted the indictment quashed. They said that I had no business before the grand jury, but I had looked into that matter very closely and was satisfied that I had a right to go before the grand jury, and the court decided that I had. Those points were all argued before the court up to the time of the trial.

By the CHAIRMAN:

Q. Please explain the nature of the proceeding by which the court finally held that the evidence which you offered was not admissible on the trial.-A. Well, we have on record the decision of the court upon that point. The substance of it was this: We called Price, who testified to having given Kellogg the drafts and the promissory note. Colonel Ingersoll moved to strike out Price's testimony, which was a novel way of proceeding. I wanted to get them to demur, so that I could join in the demurrer and get a verdict on them if the court decided in my favor; but the court resolved not to hear any more testimony, but to hear the counsel argue that point. We did argue it. I endeavored to show the court that the position that we had assumed in the beginning was sound; that these drafts were simply like a check, or an order on somebody to pay money, and that the offense ought to be dated from the time when the money was actually received. The court, however, decided that the time of the taking of the drafts was the period at which the offense began, and therefore decided against us, and, of course, we had nothing to do but to submit. You know the Government has no appeal. If we had had an appeal I would have taken it, because I do not believe the decision of the court is good law. I do not say that disrespectfully to the court, because Judge Wylie is as good a criminal lawyer as I ever practiced before, and in all his multitudinous decisions in these cases, there were only two in which I thought he was wrong. One of those was the quashing of the indictment against Rerdell, on the ground that the Christian name was not given, and the other, this decision.

By Mr. MILLIKEN :

Q. Those two instances in which you differed with the judge are the two particular instances where his decisions ran against your propositions-A. No, sir; not by any means. He decided a great many hundred propositions, and several of them were against me. But I don't think it is any disrespect to the court to differ with the court. We do that when we take an appeal, and it is one of our privileges and prerogatives to hold our own opinions upon the law. Of course may be wrong, but if I had had an appeal I would have taken it in that case.

I

By the CHAIRMAN:

Q. Then the decision of Judge Wylie ended the proceedings, so far as the Government was concerned. Was there any date in the indictment that was barred by the statute of limitations?--A. None at all. You see, we had either to indict Mr. Kellogg for receiving the drafts, which would have been barred by the statute, or we had to indict him for receiving the separate sums of money. We did indict him for that, and it was the only thing that was left for us to do. We believed that we were right, and that we had a strong case, because whatever doubt might have attached to the entire transaction was dispelled by what we were told. Colonel Bliss, in discussing the case with Mr. Merrick and my self, told us that Mr. Kellogg had called to see him, and had told him that he had got the money. Colonel Bliss told us that he said to Kellogg, "What did you take it for ?" and that Kellogg answered, Well, I took it and used it for political purposes in Louisiana." Colonel Bliss told Mr. Merrick and myself that, and that was one reason why we determined that the man should be prosecuted.

In December, after I had filed the affidavit setting forth what we ex

ence of opinion here, and I want to know which one of you gentlemen I am to answer.

(The question was read by the stenographer, and Mr. Milliken withdrew his objection.)

A. From my knowledge of the evidence the case was as strong, if not stronger, against Kellogg than against the others; from the fact that, so far as I knew, the testimony of Walsh would be before the grand jury.

The CHAIRMAN. Proceed with your statement.

The WITNESS. While I was preparing the indictment against Kellogg Colonel Bliss came to me and said that he had been requested to come and ask me-I don't remember now whether he said he had been requested by Kellogg himself or by a particular friend of Kellogg-but he said that he had been requested to come to me and ask me to put the true dates in the indictment. I told him I never did anything else; that I would certainly do that, and I did put the true date of each payment in that indictment-the date upon which the money was paid by the Treasury Department upon the draft. Those were the dates that I inserted in the indictment for each case.

Q. That request did not influence your judgment at all? You intended to put in those dates anyway?-A. Certainly. After that indictment was found and was presented to the court Colonel Bliss left and went to New York. He said he was not coming back again. He was indignant at the indictment being found. We coaxed him to come back, told him that he was not running the case; that the AttorneyGeneral controlled it; that the Attorney-General wanted the indictment found, and that we were proceeding under his direction, and finally Colonel Bliss agreed to go on with the case.

Q. You appeared before the grand jury?-A. Mr. Merrick sent me before the grand jury.

But

Q. Did you have a commission authorizing you to go before the grand jury-A. I was originally commissioned with the intention that I should go before the grand jury if there was any necessity for it. I want to say here that Colonel Corkhill rendered me very material aid in getting that indictment. There has been a good deal said about that gentleman in connection with these cases, and I wish to say that I never saw anything wrong about him. He was kind and polite, and he rendered me very material service in getting the indictment. After that indictment was found the defendant moved to quash and demurred, and the matter was heard from time to time, and finally it was decided, I think, on the last day of July-

By Mr. VAN ALSTYNE:

Q. You have been asked whether you were properly authorized to ap pear before the grand jury. Now, the indictment itself was signed by Mr. Corkhill, the regular district attorney, was it not?-A. Nobody else could sign an indictment.

Q. Therefore, there was nothing in the fact that you were before the grand jury representing him, that would invalidate or impair the va lidity of that indictment?-A. Well, they made that attack, you know.

Q. But it was a failure?-A. It was a failure. That was one reason why they wanted the indictment quashed. They said that I had no business before the grand jury, but I had looked into that matter very closely and was satisfied that I had a right to go before the grand jury, and the court decided that I had. Those points were all argued before the court up to the time of the trial.