Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1881-11-05
BATTLE OF 1HE GIANTS.
BIG LAWYERS WRESTLING WITH
THE STAR ROUTE CASES,
Col. Bliss Speaks in Behalf of the Gov
ernment-He Shows that the Informa-
tion Is Equivalent to an Indictment
Col. Ingersol1 Replies to Bliss

Ing TO lille Gne ln1OrmatlOn as fOllOWs: The
grand jury had been adjourned till the Sd of
October, and what we regard as
most impartial and effective overt acts in pur-
suance of this conspiracy had taken place on
the 1st Of October, 1878. 1t was open to the
claim therefore, that under the three years
statute of limitations proceedings commenced
in court after the first of October, 1881, would
be barred. We were placed in such condition
that if we did not file or seek to
file information, we felt we should not have
done our duty to the government. We there
fore adopted proceeding by information, SUBJ
ject, of course, to the motion to set aside. I
think we may claim to be here without being
exposed to the denunciation, which we heard
yesterday, of having made an attack upon the
people, of having undertaken to violate their
dearest rights, Mr.. Brady having substi
tuted himself in place of the people. We have
no desire under ordinary circumstances to
proceed outside the general practice in crImi-
nal cases. We have no desire to avoid grand
jury, and we think we might just as well
well charge that the other side
is seeking to avoid petit jury.
We have no desire to avoid the grand jury ex-
cept when we can show cause why it should
be done. 1 agree that under ordinary eircum-
stances and without good cause being shown,
the proper and eXpedient way is to proceed
before the grand jury.
Col. Bliss cited several acts to show that
the prosecution had the right to proceed by
Information in criminal cases, and that this
had been repeatedly recognized by congress- by
authorizing criminal proceedings by indict-
ment or information.
The right to file information in some GRIM
inal cases being clear, both under the statutes
of the United States and under the decision of
the courts, the question. contained is whether
the crime charged in this information is one
coming within the class in which informa-
tions are allowable. The only possible limi-
tation to the right to file information is
found in the fifth amendment to the conststu-
mlts the filing of information ''for capital or
otherwise infamous crime" The offence
charged in this information being
clearly not capital, it only remains to ascer-
tain whether it is Infamous. Bliss gave num-
erous citations of decisions as to what crimes
are infamous, and held that there is no case
holding a conspiracy to defraud or conspiracy
generally to be an infamous crime. We
therefore say broadly that conspiracy to de-
infamous crime, and that any passages
in text books which seem to so
held are not intended to apply to any con-
spiracies other than those which affect the
administration of Justice, or are based on mis-
apprehension. The case cited sustains them.
It allows that conspiracy such as is charged
in the case before the court is not
an infamous crime, but if the court
should regard the question as doubtful,
the safer and farer way is to allow this case
to proceed. All rights OF the accused must
be protected and those of the government
saved, If there is conviction higher court
will protect against the enforcement of judg-
ment if its very basis is adjudged illegal. On
the other hand il there is acquittal, or injury
be done. defendants will obtain
what they insist is their due. Section $40,
revised statutes, declares that if two Or more
persons conspire either to commit any offense
against the United States In any manner or for
any purpose, and one or more such parties do
any act to effect the object of the
conspiracy, all parties to such con-
spiracy commit crime. The information,
certainly in terms, charges this crime against
the defendants, and it is submitted that it
charges such crime in a legal and proper
form.
The prosecution claim the right to come
here and ask for conviction on the ground
that Brady, being intrusted with discretion,
did not exercise it honestly and in good faith;
that he did not exercise it in the purpose of
the people and for the good of the govern
ment; and that he knew he did not. Bliss, in
conclusion, combatted propositions submitted
yesterday by counsel fol- defense.
INGERsoLL FOR THE DEFENSE.
Col. Ingersoll followed for the defense, and
he said: l first call attention to the question
of the probable cause, and upon the examina-
tion of the question T not only have the right
but must necessarily inquire into what is
charged in the information itself, because
the court will remember that the charges in
the Information were made part of the affi
davits, and the afidavits together with infor-
nation are all the evidence, all the probable
cause in this case. / do not examine the
information for the purpose of demurring to
it, or for the purpose of moving to quash it,
but simply for the purpose of showing how
| much it amounts to as evidence. What does
| it prove? What is there here charged against
my client, Mr.. Brown? He took up seriatim
the counts of the information, criticizing
| and ridiculing them as he proceeded
His objection to the first count
| was that 1t left it to the prosecution to say
| whether acts charged relative to expediting
| the mail service were unnecessary. It was a
| question first to be decided by the postofice
department whether it was necessary to carry
mails one or seven times per week, or two,
| three or five miles an hour. 1t was not for
| the pleaders to say it was necessary
Tney must set fOrth the circumstances, and 1t
was for the court to say whether or not it was
| unnecessary and whether or not 1t was i'm
proper. 1thad been remarked that the mails
| had been carried when the amount received by
the United States was bagatelle. Was that
the only evidence of extravagance charged9
| Did the government carry mails
for the purpose of making money or did
the people regard the carrying of mails as one
of the instruments of civilization? His doc
trine was that the people of the West had as
much right to mail once a week as his friend
from New York (Bliss) had to four distribu-
tions per day. 1t was not sufficient for the
pleaders tn say the thing was extravagant.
They must set forth the facts in order that the
court might judge as to whether it was ex-
travagant or not
| Ingersoll then proceeded to call attention of
| the court to what he termed the inconsisten-
cies apparent upon the face of the informa-
ton, asserting that it charged McDonough
with conspiring to defraud himself; that it
charged Brady and McDonough with conspir-
ing and then charged McDonough with pay
ing, his client Brown $4,000 or influencing
Brady to eonspire. Was it possible,
he asked, that one conspirator
would apply to an outsider
to use his influence to get a co-consplrator
to conspire? Did not knowledge of human
nature show it to be impossible? Did not a
knowledge of the transactions of the men
prove it to be absolutely absurd? If it should
turn out to be true that McDonough had
"a. n