The New York herald., 1870-03-06
THE COOK WIIISKEY CASE.
decision OF the Commissioner Dismissal Of the
Complaint-Rearrest Of Cook.

DeciSion OF the Commissioner-Dismissa OF the |
Complaint-Re Of Cook.
ihe examination into the case OF the United States
vs. Martin r. Cook and T.. w. Farrington, which |
has been Tor several days past before Commissioner
Beats, was Yesterday brought to close The Com |
missioner IN lengthy review OF the case. the sub
stance OF whicn ID subJoned dismissed the charge
against the accused.
THE DECISION DIsMIssING THE COMPLAINT
commissioner Belts says:-On the 31st OF July,
1S6s e. W. Harrington, being then q gov.
ernment inspector, furnished to Martin X.
Cook, q member OF the firm OF Gordon
Fellows McMllan, dealers In whiskey an on
cal return that ls3abarrels or highwines, marked
"E. D., IN Dond stored in Pearl street. cOnlained
6996 PROOF gallons whereby Cook was enabled to
withdraw tne same from bond on payment OF tax
ON that amount OF proof gallons; and this return ia
alleged by the government to nave been false and
known to be false by the defendants. harrington
has also lurnished 70 Cook return that the same
l33 gallons "E d D." contained GAPS proof gallons
which return was also dated July 81, 1863, and by
means OF which Cook was enabled to charge.
and did charge, one Michael Doupherty.
of Boston, TO whom he had sold these 1873 barrels
with the government TAX paid upon this larger
number OF gallons. These facts, which were TO
some extent matters OF inference NJ the time the
motion TO discharge was made, are now established
by the evidence introduced by the delenaants
taken In connection with that already IN on the part
or the government. 1t having been proved that
these TWO defendants had by connvance made two
diflerent returns to tine same spirits when dif-
fered by about 500 gallons, ana one OF which was
manlfestly false, the government had the right TO
clam that the larger was the true one and to call
upon the defendants to explain this and, the
iacts beng exclusively within Their knowledge, TO
devolve upon them the proof that the smaller return
tha. .nfnt
taken TO do-First, BY explaining why there are two
returns for the same spirits SO different IN their
amount; second, TO prove tnat the larger return
false. aud third, thai the smaller one Is true The
version they give OF tue transaction is that the 1873
barrels were sold to Dougherty while N bond. and
that the contract was maze with him that they
to be manufactured INTO Shiels BOURBON whskey;
that thereupon Harrington was employed 10 gauge
them which he did aud made true return-to
wit, namely the smaller one, upon which the tax
was paid and the spirits taken out OF bond: but thar
when the spirs came into the store or Gordon
Fellows Il McMan, then, IN violation OF the contract
Win Dougherty, only nifty out OF these 1873 barrels
were used. aud The other ei.hS-nree barrels nosted
into the loft their place being supplied by other
highwincs then on hand, which were dumped into
the tank with The hfty barrels OF e. X d. and other
materials, sucn as syrup navorng and colorlng
matter being added. TINS compound produced las
barrels OF Shells Bourbon. which was forwarded TO
Dougherty. That this substitution OF the nghwnes
was concealed from Dolgherty, and that rom the
number OF gallons IN the lis barrels OF Bouroon an
estimate was made OF tnc number OF proof gallons
which had been originally dumped into the
tank, which estimate was that 6,425 proof
gallons had been SO used, and that then the book
keeper, Hathaway was sent to Harrington To induce
him to prepare fictitious return OF the gauge ~ the
l33 barrels, whlcn should show them to have con-
tanned 6,425 gallons for the purpose Of deccivng
Dougherty, and that Harrington consented u this,
the result beng the larger return, which is IN evi-
dence.
1ne question: therefore. for me to declde1s simply
whether thus statement has been sustained by the
proof There seems 10 be DO dispute as to The terms
OF tue contrac. WIN poIsery me Then an hye W.T.,
was not carried out but that only part or
the 133 barrels were used in the manu-
facture or the Bourbon, and they thus
show q motive for making a false return
Of the nature OF the larger one. Mr.. Fellows. the
partner OF Cook. and hathaway, his Dookkeeper,
was not founded on an actual gauge, put was made
about zen days after the l33 barrels had been taken
from bond, and after fifty oi them had been con-
verted into Bourbon and shipped to Boston, and
was. In fact, based ca a mere estimate which was
prepared III Cooks office, and to which harrington
gave his oriciai signature. This testimony. II
credible enurely destroys the value OF tho larger
return as proof OF the truth Sof Its statements,
on wnlcr the government renes In addition
tofthese Two witnesses, Young, the receiving CLERK,
fed that only part Of the 3a barrels went INTO the
14S barrels Of Shells Bourbon. and this, ir credible,
destroys the value as evidence OF the entries aud
charges In Cook books. on which the government
relies. IN which the whole 1913 barrels are charged TO
Dougherty rs manufactured into the las. and Us con-
tainlng 6425 3jl0o proof gallons. But the defence
goes still further. and the receiving clerk, Young,
testhes that ne personally gaused the l35
barrels barrels. Of T. & d; as, as soon no as % they We're
house, and that his gauge showed them to
contain COOS proof gallons-only twelve gallons
more than the smaller return, on which tax
paid. None OF these five witnesses are impeacneu
or materially contradlcted. They appear before
as competent Witnesses. They are, 1t Is true the
partner ana employees OF Cook, but from the neces-
sity OF the case they would be almost the only ones
cognzant OF the fact Fellows ~ Hathaway acknowl-
edge they were willingly engaged III the attempt to
deceive Dougnerty, Wnlcn Ii TO their dlscredlt but
not enough 30 TO nvalldate their sworn testimony.
But this criticism does not apply to the other
nesses, and II there be any dependency to be placed
on human testimony The iactS thus testified to must
be considered TO be established when the only
dence IN contradiction the mere variance between
the two returns, without any direct proof part
OF TINS prosecution 10 the Truth OF the larger
the falsity OF the smaller But great stress has been
lald on the circumstance that The defence have not
presented the duplicate OF the larger return, alleged
by them to nave Deen sent TO D0uSnerty 1t would
have been far more satisfactory bad this paper Leen
introduced, but It was not necessary link In tner
chain OF proof and there was no binding 0bilsa.
tion on them to produce IL. 1t was frequently as-
serted on the behalf OF the government during the
hearing that IL was not presented and did not Intend
TO present all the proof agalsC the deiendanLs
when II proposed, and undoubtedly this It's
privilege the same privilege must also be
corded the defendants. All that they and he
required TO oiier Is sufficient testimony to explain
away and c0unterva all the proof that the govern
ment has offered, and this, III my judgment, has
been done.
THE DEFENDANTS ARE DISCHARGED
There was very general but quiet manles tation of
pleasure among the audience assembled the
announcement OF the result.
The court then adjourned
Rcnrrcst Of Martin Il. Cook-More Charges