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tion, according to my best recollection, was principally about the Dorsey cases, although it was at the same time a broad consultation about these matters generally. An indictment against Dorsey, Brady, Vaile, and others was put in my hands. It seemed as if that case was then in front and had been already selected; and after a very careful examina tion of that case and two trials of it, without knowing fully what might have been developed in any other case, I certainly could not have desired a better case in which to secure a conviction.

Q. Were the indictments in that case prepared before you entered the Government service?-A. The indictments had been prepared before I entered the Government service and had been found. The first indictment in that case was found March 4, 1882. That indictment was therefore necessarily on the records when I came into the case. When it was placed in my hands and I examined it, I found that there were two or three defects in it, applicable to three of the defendants, namely, Rerdell, Sanderson, and Vaile, and I concluded that as to those three defendants the indictment was not good. Before I became perfectly familiar with all of the transactions that were to be developed in the trial, I had been fully informed in reference to Rerdell's admissions and confessions to Mr. MacVeagh and Mr. James, in the presence of Mr. Woodward, at the time of the commencement of these investigations, and, deeming Mr. Rerdell's presence among the defendants very im portant, I directed a new indictment to be found. I told Mr. Bliss that a new indictment would be necessary, and told Mr. Ker that a new one must be prepared; for, although there might be a question in my mind in reference to the legality of that indictment, I believed that the court would not sustain it as against those parties. I deemed Rerdell essential as a defendant, for the reason that his admissions made to Mr. MacVeagh, Mr. James, and Mr. Woodward were material as evidence. Appreciating that they would necessarily, by the court, be limited to himself, I also understood, as every lawyer will, that they would aid more or less in clearing up whatever evidence might be obscure in reference to the other defendants. In accordance with these directions another indictment was prepared, which was returned to the court on the 20th of May. Between the finding of that indictment and the instructions I gave to my associates in reference to it, we had many consultations about it, and the court was called upon to determine the very questions to which I have referred. It determined those questions and determined them as I have indicated I thought it would.

Q. Do you refer to the question with regard to indicting by the ini tials?-A. Yes; with regard to the use in the indictment of the initials of these parties, Rerdell, Sanderson, and Vaile. There was a mistake in the naming of Vaile. He was called Henry in the indictment, but his name was Harvey. There was some mistake, too, in the initials of Sanderson, and Rerdell was indicted by his initials, and not by his name. The counsel met for the purpose of consulting in reference to the form of the new indictment, and we were several hours together conferring upon that subject in one of the rooms of the Department of Justice, where we went carefully over the whole matter, and together determined upon the form of the new indictment, adding a number of overt acts not in the previous indictment and dropping out some overt acts which had been charged in it, but against which, in the mean time, the statute of limitations had run. We dropped Sanderson out, because there was no evidence connecting him with that conspiracy.

Q. Was that the reason why Sanderson was left out?—A. I do not remember any other reason except that I believe he was shown to be

interested in only a very small piece of one route among the nineteen that we intended to embrace in the indictment, and I think I found the evidence against him so entirely insufficient, and his relations to the case so unimportant, that I said to Mr. Ker, "Take it and do as you please with it," we all agreeing that Sanderson should be left out.

Q. Were you advised that Sanderson was connected with another combination, and should properly be indicted in connection with that?— A. I do not remember any remark of that kind being made. It is possible that it might have been said that if he was indicted at all it should not be with this combination. We also had to be very careful not to embrace in the indictment for conspiracy any one that we did not certainly think to be in the conspiracy; to guard against any question on that point that might possibly arise before the court.

Q. Did you have your attention called at any subsequent time to the question whether an indictment should be found against Sanderson ?— A. I did not; I never heard the subject again referred to, nor did I ever afterwards hear Sanderson referred to in connection with the subject except incidentally in the course of the trial.

Q. Then I understand you to say that, while you do not undertake to pass upon the sufficiency of the evidence that may have been obtained in other cases, the evidence in this Brady-Dorsey case was sufficient not only to warrant an indictment, but a conviction ?-A. I wish to be distinctly understood as saying that, whilst I know nothing about the evidence in other cases, I am familiar with the evidence in that case, and that it would have been a most extraordinary case indeed to which I would have given preference over that one as a strong case against the defendants. The evidence in this case satisfied me beyond all possible doubt of the guilt of all the parties, and I have seldom had occasion to try a case in court with the testimony in which I was more entirely satisfied. I speak of the Brady Dorsey case.

Q. Are we to understand that your statement relates to the evidence that was actually adduced upon the trials?-A. It relates to the evidence that was actually adduced upon the trials; the evidence that was actually adduced upon the first trial as well as the evidence adduced upon the second; for, although the evidence for the Government was a little more elaborate upon the second than upon the first trial, the evidence on the first trial was all that any reasonable man could, in my judgment, require to convict.

Q. When you first passed upon the sufficiency of the evidence in that case to justify the Government in going to trial, had you taken into consideration the evidence of Mr. Walsh, or the fact that he was to be a witness in the case?-A. I had not.

Q. Did you deem the case sufficiently strong without his evidence ?— A. I deemed the case a perfectly good case without his evidence; but it was very important, and in view of the opinion indicated by the judge in the progress of the trial and the sentiment which seemed to pervade the public mind, his testimony assumed a degree of importance beyond that to which it was probably entitled as a mere matter of law. I may add that up to the time of the introduction of Mr. Walsh as a witness upon the stand, the judge who was presiding seemed to regard the case of the Government as quite insufficient, and it was partly demoralized. When Walsh was offered as a witness a very important argument took place upon the admissibility of his testimony, as the committee will see by referring to the record of the first trial, pages 1607 and 97, which I now have before me. We had, up to that time been putting in the records, which were so numerous and voluminous that it was very difficult for any

one who did not already understand the matter to apply them without a careful explanation, and by an aggregation of the facts which they developed, to apply the conclusion to the parties charged in the indictment. On that argument the theory of the Government's case was very fully developed by myself. It had been already developed by Mr. Bliss in his opening statement to the jury, which was elaborate and able, but it was again very fully developed there, and it met the expectation of the judge, and, apparently, of others, by furnishing an answer to the inquiry, "What has Brady to do with these transactions particularly? Where is Brady's motive? How are these parties united? Here are different acts which have been done by each of them, and these acts apparently have a certain relation to each other and look as though they tended to a common result, but that has not been sufficiently shown by this mass of papers which you have thrown down before the jury. We want something further than that." Now, Walsh's testimony explained Brady's motive, by developing his rule of conduct in dealing with the contractors, and showing that it was his uniform habit to charge them a certain percentage wherever he exercised his discretionary power of expediting a route. The argument upon this question of the admissibility of Walsh's testimony enabled us to develop our entire theory at a time when the minds of the jury and of the court were asking for light upon these papers they regarded as important material, but which they did not fully understand; and from that time forth the Government's case went on prosperously up to the verdict given by the jury.

Q. How did it happen that up to that time you had overlooked the fact that Mr. Walsh's testimony was material?-A. I do not know that I was fully informed, if informed at all, as to what Walsh could prove. I may have heard previously something of what he could prove in the case but it does not occur to me now. I endeavored to bring such information to my recollection, but I have been unable to do so.

Q. When did you first learn the fact that Mr. Walsh was a material witness for the Government in that case?—A. At some time in the progress of the trial I learned it, I think from Mr. Woodward, and possibly Mr. Bliss also may have spoken to me about it. After I learned of it we had a consultation about it. I know that before Mr. Walsh testified Mr. Bliss and I had a consultation about his testimony-a very full talk. Now, just when I first learned of it I do not know, but it was after the trial began, and my impression is that it was brought to my attention by Mr. Woodward. The discussion between Mr. Bliss and myself was in regard to the admissibility of the testimony, and we agreed that the testimony was admissible in the case for the reason that Walsh would say that Brady had avowed that the rule which he sought to apply to him (Walsh) was the rule applicable to all contractors, and therefore it embraced these contractors.

Mr. BLISS. But that statement was only obtained from Walsh after the trial commenced.

The WITNESS. That may have been.

Q. Had the appearance of Walsh before the grand jury about this time anything to do with bringing to your knowledge the fact that he was a material witness for the Government in the Dorsey-Brady case?— A. I cannot say that his appearance before the grand jury during or about that time had anything to do with informing me of his materiality as a witness in the Dorsey-Brady case; but having learned from Mr. Woodward what Walsh would prove (I think it was from Mr. Woodward), and having had thereafter this consultation with Mr. Bliss, we concluded that Walsh was an important witness. Having reached that

conclusion, I determined that he must be produced. I understood (although it is hardly proper for me to say what I understood and what I heard, for I desire to limit my testimony here according to the rules of law)-I understood that Walsh was reluctant to testify, and had said that he would not do so. I directed Mr. Woodward to bring about in some way an interview between Mr. Walsh and myself. Mr. Walsh was sent for, and, by what instrumentality I do not know, was brought here to the District of Columbia. Mr. Woodward informed me that Mr. Walsh was here, and at the same time I learned that there was illfeeling between him and Mr. Bliss, or, I should say more correctly, that, for some reason or other, Mr. Walsh had some ill-feeling toward Mr. Bliss. Mr. Walsh being here, Mr. Woodward arranged for an interview between him and me, and I left the court-room in the midst of the trial to meet an appointment with Walsh at his room at the Arlington Hotel. Shall I go on?

The CHAIRMAN. Proceed, if you please.

The WITNESS (continuing). I found that I had met the gentleman before, and I immediately told him the object of my coming, which he probably knew already. I informed him that I wanted him to testify in the Dorsey-Brady case, and had come to learn from him then and there what he knew as to the case. Although I had already learned it, it was repeated by him on that occasion; but he said he would not testify in that case at all. Well, gentlemen, it is very difficult for me to go over a long interview like that in detail. It will be sufficient for me to say that, in substance, I endeavored to impress upon him the duty that he owed to the Government to testify, but what I said made very little impression upon him, apparently, and I asked the reason. He complained that he had been badly treated; he said that he had testified before the grand jury in reference to Mr. Kellogg, and that his testimony had been disregarded, that Colonel Bliss had cast reflections upon him at that time, that he felt that if he now appeared as a witness he would be unjustly dealt with, and that he would not consent to appear. I then asked him to tell me more in detail the circumstances that had given rise to his feeling in regard to Colonel Bliss, the particulars in which he had been badly treated, and what was the testimony that he had given before the grand jury which had been disregarded. He then gave me an account of what his testimony had been before the grand jury, and designated Colonel Bliss, whether justly or unjustly I do not know, as the cause why that testimony had been disregarded by the jury. I told him that what he had just said in reference to his testimony about Mr. Kellogg was new to me; that that was the first I had ever heard of it. He expressed his surprise and said that had been his testimony before the jury; that the other counsel in the case, Colonel Bliss, well knew all about it. It is possible that I may have at that time made some very harsh remarks in reference to the counsel, predicated upon the fact that he had kept this information from me. I do not recollect. I observe that Mr. Walsh has testified that I did speak harshly of Colonel Bliss. It may be that I did. I was certainly very much excited at the time, because I was extremely anxious that Walsh should testify, and I felt that if what he told me in reference to his testimony was true, a great criminal had been thus far allowed to escape punishment. I continued to urge him to testify in the Dorsey-Brady case, and said that I would see that justice was done to him; that he should have an opportunity of vindicating himself; that I would cause the grand jury to be reconvened, and that he should go before them again and give his testimony in regard to Kel

logg, which would be the best vindication he could have. He said that if I would do that he would testify in the Dorsey-Brady case; that all he wanted was to be vindicated and fairly treated. I told him I would see that he was both vindicated and fairly treated, and would have the grand jury reconvened. Mr. Walsh did testify in the Dorsey-Brady case, as you are all aware.

Q. And the grand jury was reconvened?-A. The grand jury was reconvened. Mr. Walsh did go before the grand jury and he did testify in the Dorsey-Brady case, as you are all informed.

Q. Can you explain to the committee, in view of the sufficiency of the evidence as, you have stated, how it was that there was a failure on the part of the jury to meet your expectation?—A. I certainly cannot. I will say this, however, in connection with what I have already said in regard to the sufficiency-the ample sufficiency-of the evidence, that the jury was a very intelligent one, I think certainly equal to the av erage, if not above the average, of the juries in this or any other jurisdiction with which I am acquainted.

By Mr. STEWART:

Q. Do you refer to the juries on both trials?-A. No, sir; I speak now of the first trial; and in answer to the inquiry as to why there was a failure to obtain a verdict of guilty, I think that it would be proper to refer first to the verdict that was rendered.

Q. Will you please explain that?—A. A verdict was rendered finding John R. Miner and Montfort C. Rerdell guilty, the jury disagreeing as to the others. These parties had been indicted and were tried upon an indictment for a conspiracy to defraud the Government of the United States. The charge, you will observe, was conspiracy, and the burden was upon the counsel for the Government to prove a conspiracy, The court instructed the jury that, in the performance of their duty. when they retired for consultation, they should in the first instance consider the proof bearing generally upon the subject of the conspiracyand that they should first determine whether there was a conspiracy or not, for, unless there was a conspiracy, no matter what frauds might have been perpetrated by the defendants individually, there could be no verdict against them.

"Having determined that there was no conspiracy," said the court, in substance, "you must find the defendants not guilty; but if you de termine that there was a conspiracy, then your next inquiry will be who constituted the conspirators, who were in that conspiracy; and you must find that there was more than one of the defendants, you must find that there were at least two, because there must be two at least in order to make a conspiracy. Having determined that there is a conspiracy, and having determined who were the conspirators, your verdict will be against those parties." With that instruction the jury retired. They found Rerdell and Miner, as I have said, guilty. The finding of the verdict of guilty against Kerdell and Miner was necessarily predicated upon the finding of the existence of a conspiracy. Now, the evidence showed throughout that Rerdell and Miner had no direct and immediate relation with each other, but that their relation with each other was through Stephen Dorsey and John Dorsey and Vaile, and that Rerdell and Miner were in fact the subordinate instruments in the perpetration of these frauds, Rerdell having no interest in any contracts at all (or if in any, in one single contract in which he received his pay), but being Stephen W. Dorsey's clerk; and Miner had been brought on here by S. W. Dorsey in conjunction with John W. Dorsey, and at S. W.

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