, 1879-06-08

aeiectfve and useless, and that this necessarfl
~. fnsteaseo a Inc expense OF preparing the ston
sniFscy Tesy1hat MIc51 by means Of the alleged COT
euttlng' h;a,a' carving, and dressing the sion
winch was not performed, or whfc
mas SO performed as to enabl
nun to fraudulently obtain money o
Ieeoonl thereof to which he was not entitled
u vas IN support OF this claim that testimou
oao been introduced with reference to the mar
ner IN wbtch the work vas done, alleged idling
M|M-That the defendants conspirea to
sether to obtain double payment for haulin
stqne to the site Of the building.
aaetng stated what it was essential to keel
| "a fnino as the groundwork OF the case, and th
particulars in which it was claimed the defend
ants entered into criminal combination to de
1raud the Government, the Court proceeded t,
style what was essential
| 30 CONSTITUTE CONSPIRACY,
laying down with great fullness the law on thai
| SUBJECT, and holding as rather important in TUT
case that conspiracy might be formed between
! certain persons. and be Joined by others in itl
succeeding stages, its existence as one prolonged
conspiracy being thus continued. It was cleal
IN thls case that the charge implied that each o1
the defendants knew there was such con,
sspiracy as had been referred to, and, with such
knowfcdge. united in the alleged unlawful
scheme The alleged guilty knowledge and
participation must be proved by the Govern
ment.
The Court then proceeded to consider the
specific instances or particulars in which the
prosecution claimed the Government was, by
the alleged criminal concerted action Of the de-
fendauts, dcfrauded, together with the answers
or delenses set up By the parties. This involved
consideration Of the various contracts and of
several branches of the evidence: First came
tne. hait.inch question. The Governments
claim, in brief, was that payment was to be
made for stone Us the size should be after it was
cut, the contractor to furnish stone In the rough
which exceeded the net size half an inch, the OBJ
:lect being to give the cutters half IN inch
to work on The defense claimed that
shoaa BE- 'eeoTaa pia for this b's hsns hSG2!ssis
such being, in their view, the proper construc.
ton OF the contract; and it it wasn't the strict
~ correct construction, yet such was the under
standing OF the parties when it was made and
6ince, and the defendants were not to be con-
v1cted OF criminal intent in their dealing with
the question il They acted according to an hon
est, though It might have been mistaken, un-
derstandfng Of The contract The fact that the
half-inch was paid for was not disputed, and
vouchers had been introduced showing that the
total amount WAS between S59, GOO and $780, 600.
Two vouchers for the payment Of the retained
percentage had also been introduced, amount
ing to s245l+40. The question of the
regard, in view Of the peculiar language Of
the provision, was one not free from difficulty
and doubt The Court was constrained to say,
however, that his mind inclined to the view
That, II each party were to stand upon bis strict
legal rights under the contract, the United
States could not be required to pay the con-
tractor Tor stone except upon the basis Of net
slzes,-the size OF the stone after 1t was cut,-,
aud that this standing On the letter, and what
the Court conceived to be the real meaning OF
the contract, could not be compelled to pay for
the half-:nch which it was provided should be-
added to the schedule size for every worked
face for quarry dimensions. The testimony
with reference to Muellez's
CONVERSATION WITH MuE1Err
Oh this subject was to be considered, among
other things, on the question Of intent--his ex-
press surrender afterwards in his saving pro-
posm OF bis CHIN to the ha1t-iucb, the course Of
business in the department By which the Gov
had allowed it, ETC., etc. In this con-
nection, and in behalf Of Burlng, 1t was claimed
that be simply followed the practice in vogue
vouchers. Ii behalf Of Mueller, it Was claimed
that he corrected an error when it was in his
favor, and by the Government that the correc-
lion was not made on the oririnal discovery Of
the error by Mueller. It 1t should be as Muel-
[er claimed, the circumstance should be consid-
don, in short, was, Did the defendants in this
matter act in good faith or with fraudulent in |
tenta =. - -.
The Court then took up, and considered in
sIA4HdA ways AAC Ol4C4 kAaAAAA3 puA 4tlLA W
prosecution in relation to the quality Of the |
stone, quoting very largely from THE mass of |
in the case, the excessive time spent |
IN the work, as we'll as its excessive cost, the |
alleged fraud IN the SEWING Claim, and the haul
ny. This portion Of the charge was. in short, q J
[ull: review Of the testimony in the case, and it
served to set forth With great clearness the dia-
netrica11y opposite. positions taken By the two t
,idea to the case.
In approaching conclusion, and as sort OF I
n what ha had
Iiously said, the Court proceeded Us follows:
Nov, gentlemen, word about the statute Of !
limitations BY that statute it is provided that
no person shall be prosecuted, tried, OF pun
iided in Sec. 1,046), unless the Indictment is
found or. the information is instituted within
.hree years next after such offenBe shall hnve !
been committed" Now, applying that statute
% thls case. as the present indictment was
[ouud Nov. ~ 1878, the period within which the
2tense charged must be proven to have been
committed to entitIe the prosecution to con-.
71cuon cannot extend back more than three
fears prior to Nov. q, 1878. In other words,
he defendants eau only be convicted Of con-
;piracy, existing and to which they we're par
les at a time between Nov. q, 1875, and
Nov. q, 1873, and the proof must show
hat the identicali conspiracy which is charged
vas IN existence, and that the defendants, or
ONE Of them, were parties thereto within the
'eriod mentioned,-that is the three years,-in
rider to convict the defendants, or such Of
hem as are proven to be parties to the con-
piracy, aay are proven.
j.. HAVE THUS FAB SPOKEN .
t the case With reference to that phase Of it !
'hich involves the charge that tue defendants
rho are named in the Indictment, or some of |
hem, consplred together to defraud the Coy
rnment. The indictment in this case is against
ertaln defendants, who are named, for conspir-
~ together and with divers persons unknown |
. the Grand Jurors to detraud the United
tates; aud this being the allegation Of the in-:
ictment, there may be a conviction Of any one
the defendants named, If it be fully proven that
lch defendant conspired with any person other
ian those named in the Indictment, although
ley should fod the other defendants named
ot guilty of the alleged conspiracy, provided
lat the jury also find that such conspiracy, if |
~, between any one OF the defendants and !
her persons not named existed and acts were
que to carry it into effect within three years {
ext before this indictment was found.
Now, it is claimed on the part OF the prosecu-
on that the alleged conspiracy Was originally |
rmed by and between the defendant Mueller
I'd 4. B. Mullett at period anterior to the
atute OF limitations-that is prior to NOV. q, ! J
IS; aud it is claimed that that conspiracy ! I
utinucd throughout large part OF ! q
e period covered by the : statute, | {
ID that the other defendants, or some ,
them, became parties thereto by aiding and ! .
citing the same. And it is further commended }
Sc Ill r11sy i