The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1876-02-09

sworn in: R.N. Blackwood, Matt. Wood
ruff, W. E. Wilson, Ezra johnson, B. F
Snyder, J. N. Keathley, Z. B. F. May
w. Blakely, D. W. Taintor, Wm. S. Jew
1T, W.T.. Jackson, Harvey Lessons. The
District Attorney announced that no more
whisky cases would come before the court
at this special term, and that all the ju-
rors, II outside Of this trial panel, were
discharged. The District Attorney ther
addressed the jury, opening the case fol
the prosecution.
He repeated the history Of the conspi'
racy which was organized here in 1871
stating that it involved all the distillert
and reclifiers, Government officers and
employees here, and had its ramifications
even in Washington. He cited several
dispatches alleged to have passed between
Joyce, Mcdonald, Avery and Babcock to
show that the two latter persons were
engaged in the conspiracy and CORE
sponded with the conspirators. The dis
patches between Joyce and Babcock
touching the appointment OF Colonel
Constantine Mcguire as collector OF in
ternal revenue after the death OF Charles
W. Ford were cited, and Colonel Dyer
stated that It would be proved that from
that time on the defendant furnished in.
formation to the ring here. The Depart
ment was thwarted in all its efforts TO
get an investigation that would reveal
the frauds, for the reason that all the
revenue agents sent here 10 examine al
foirs were either bought up on their ar
rival or advices had been received here
OF their contemplated visits, and an op-
portunity was thus given distillers to
straighten up and show regular work.
Col. Dyer claimed that it would be
clearly shown that Babcock not only had
full knowledge OF the existence OF the
frauds that were carried on, but that he
aided the conspiratos in their work and
received money directly from Joyce, who
mailed 1t to him. Babcock and Avery
were the two men at Washington who
kept the ring posted, even after the in
dictment Of Gen. John Mcdonald. Bah.
cock it would be proved was in secret
correspondence with him. The evidence,
Col. dyer said, would in a measure be
but there would not be a
link missing in the chain.
Joseph NJ. Fitzroy was then put on the
stand for the prosecution. Alter testify
ing to his position in the revenue service,
&C., he was asked by District Attorney
Dyer, who conducted the examination, to
state what he knew about c. G. Megrue,
his operations here in 1871, &C., to which
Judge Krum, OF the defense, objected on
the ground that such 4 statement would
be only Of n hearsay character, as witness
did not enter the Collectors office until
May, 1873. Besides the indictment charg-
es the defendant with conspiracy to de-
fraud the government out Of tax Of
seventy cents per gallon on certain
proof spirits. Now in point OF TACT
there was no tax OF seventy cents per
gallon on distilled spirits in 1871; that
tax did not go into effect until June 1872.
We therefore claim that SO such conspira-
cy existed or could exist. There may
have been conspiracyto defraud the gov
ernment OF fifty cents per gallon, that be-
ing the tax then imposed; but this is not
laid out in the Indictment, and VIC claim
that it is correct rule OF law that con-
spiracy must be proved under the rule as
laid out in the indictment; 1t is utterly
incompetent to show the existence Of
conspiracy to defraud the government,
generally when indictment charges
conspiracyto defraud the government out
OF particular or specified tax.
Col. Brodhead said it was not necessa-
ry 10 show by witnesses what the tax
was, it was enough to show that the gov
ernment had been deirauded. The prose-
cution are only compelled to show that
conspiracy waS formed, its objects &C.;
that conspiracy continued after the
change in the tax was made, and that the
defendant was one OF the. conspirators.
Judges Dillon and Treat counsel
ed together u few minutes, after
which Judge Dillon said We
will not positively determine now
whether the pleader has confined himself
to the particular and specific tax OF 20
cents per gallon. As that tax was not
imposed until 1872 il may be that the
prosecution cannot show what trans
pired prior to that time, but II what was
done before was simply continued acts it
does not follow that il is incompetent to
show what the frame, structure, ETC., was
Of the whole conspiracy. We have SO little
time to decide these. questions that our
ruling may be irregular, and thretore we
will keep this question in mind and de-
eide upon its admission hereafter. The
witness may answer the question, it being
understood that the ruling Of the court on
its competency will be given hereafter.
The witness then began to speak about
Megrue, when the defense objected and
he was Withdrawn, and Mr.. Thompson, a
distiller cal! to the stand.
He gave history Of his connection
with the ring and explained how he made
crooked whisky, &C., &C., all Of which has
been stated numerous times before.
During the examination OF ithis witness
the defense objected to all questions not
directly relevant to the Indictment against
the defendant, but Judge Dillon ruled
that testimony to establish the existence
Of conspiracy might be given, and the
witness gave tolerable full account Of
the ring and its operations.
Fitzroy was then recalled, and Col. by.
er asked him il Megrue ever paid him
any money.
storrs objected to anything more per-
tainingto what he called the Megrue con.
spiracy. He said that Thompson had
testified that II ended in 1872, and the
prosecution in opening stated the same
thing.
A long argument ensued, during which
Col. Broadhead said the theory is that
there was conspiracy formed in 1871,
embracing the Supervisors, Collectors, a
special revenue agent and others; that
they went on making illicit spirits to the
close OF 1872, when there was suspen.
sion. Then in 1878 the same parties went
on again, and made more illicit whisky.
Il was not necessary that they should
meet in ropm and lay their plans. II
was a continuation Of the same plan, the
same division, &c. There was no formal
understanding. They all knew what
they were to do.
Judge Porter interrupted Col. Broad.
head and stated that tic counsel did not
meet the question fairly. The question
was whether the prosecution intended to
connect the defendant with the conspira.
cy Of 1871. We have II openly avowed in
a deliberate argumentby the government