The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1876-02-09
His Trial Commenced Yes
terday.
The Names of the Jurors.
Case Opened for the Prose
cution.

ST. LOUIS, February S-The U. 5.
Circuit Court opened at l0 o'clock this
morning. The selection of jury in the
Babcock case was proceeded with, and at
IL As the following jurors were finally
sworn in: R. n. Blackwood, Matthew
Woodruff, w. f. Wilson, Ezra Johnson,
b. F. Snyder, j. NJ Kesthley, f. b. f.
Nav, w. Blackly, d. w. Tainter, VIM.
S Jewett, w. f. jackson and Harvey
Lessons.
The District Attorney announced that
no more whisky cases would come before
the Court at this special term, and all
the Jurors outside of this trial pannel
were discharged.
The District Attorney then addressed
the Jury, opening the case for the prose
cution.
Hs repeated the history of the con-
spiracy which was organized here in
1871, stating that IL involved ali distil-
lers. rectifiers and government officers
and employees here and had its ramiti-
cations even in Washington. He cited
several dispatches alleged to have passed
between Joyce, Mcdonald, Avery and
Babcock; to show the two latter persons
were engaged in the conspiracy and cor
responded with the conspirators. The
dispatches between Joyce and Babcock,
touching the appointment of Col. Con-
stantine Mcguire as Collector of Inter
nal Revenue, after the death OF
Charles w. Ford were cited and
Colonel Dyer stated that it would be
proved thatjfrom that time on, the de-
tendant furnished information to the
ring here. The department was thwarted
IN all lis efforts to get an investigation
that would reveal the frauds, for the rea-
son that all the revenue agents sent here
TO examine the affairs we're either bought
up,n their arrival, or advices had been
received here of their contemplated
visits, and an opportunity thus given the
distillers to straighten up and show reg
ular work.
MIR. Over claimed that it would be
clearly shown that Babcock not only had
| full knowledge of the existence OF the
frauds which were carried on, but that
He Aided the ConspiratOrs
! In their work, and received money directly
from Joyce, who mailed it to him. Bah
cock and Avery were the two men at
Washington who kept the ring posted
Even after the indictment of Gen. John
Mcdonald, Babcock, 1t would be proved,
was in secret correspondence with him.
The evidence of Col. Dyer would, in
measure be circumstantial, but there
would not be link missing in the
chain.
Has. NJ. FitzrOy
was then put on the stand for the prose
cution. After testiiying to his position
in the revenue service, &c, he was asked
bv District Attorney Dyer, who con-
Quoted the examination, to state what he
knew about &. G Megrue and his oper-
alton here in 1871, &c, to which
Judge Krum, of the defence, objected
on the ground that such a statement
would be only of hearsay character
as the witness did not enter the collec-
tors office till May, 1878. Besides, the
indictment charges the defendant with
conspiring to defraud the Government
out of a tax of 20 cents per gallon on GER
tain proof spirits. Now, npoint of fact,
there was no tax of 20 cents per gallon
ON distilled spirits in 1871. That tax did
not 90 into effect till June, 1872. We
therefore hold that no such conspiracy
existed or could exist. There
NAV have been conspiracy to
defraud the government of 90 cents
per gallon. that being the tax then im-
posed: but this is not laid out In the in
dictment. and we claim that it Is the cor
rect rule of the law that conspiracy
| must be proved under the rule as laid
out in the Indictment. 1t is utterly IN
competent to show the existence OF a
conspiracy TO defraud the government
generally when the indictment charges
conspiracy to defraud out OF particular
or specitiod tax. Col Broadhead said 1t was
not necessary to show by witnesses
what the tax was, it WAS enough to show
that the government had been detrauded.
The prosecution are only compelled to
show that conspiracy was formed, It's
objects. &c. That the conspiracy con-
tinued after the charge in the tax was
made and that the defendant was one OF
the conspiratorS.
Judges Dillon and Treat consulted to-
rether few momentes, after when
JUDGE Dillon said we Will
not positively determine now
. whether the plesder has to confne himself
/ t. the particular and specific tax OF AZ
cents per gallon As that tax was not
imposed until 1872. it may be that the
prosecution cannot show what transplred
prior to that time; but if what was done
before was simply continued acts 1t does
not follow that it is incompetent to show
what the frame, structure, etc, was of
whole conspiracy. We have such little
to decide these question that our time
I ruling may be irregular and therefore
we will keep this question in mind, and
decide upon its admission hereafter The
witness NAV answer the question, it being
understood that the ruling of the Ceurt
on its competency will be giveni here,
after.
Tho witness then began to speak about
Nacrpe when the defence objected and
he was withdrawn and
Mr.. Thompson,
n distilIer, was called to the Stsnd. h' ne
gave the history OF his connection VIII
the ring, explained how he made croIkce
whisky, &c, &c, all of which had peer
stated numerous times before during
the examination of this witness.
The defense objected to all the ques'
tions put directly relevant..to the indict
ment against the defendant. but judge
Dillon ruled that testimony to es.aoiisi
the existence of conspiracy might b
given, and the witness gave tolersoi!
full account of the ring and its operations
Fitzroy was then recalled, and Col