The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-06-13

continued after the statute of limitations
ceased to protect The jury must judge of
the character of the association after that
time by its antecedent history,
AN OVERT ACT MUST RE PROVED.
But it was not enough TO find the existence
of conspiracy. They must find an overt
act, committed by some owe of the defend
ants, after the goth of May 1879. Difficult ty
arose at that point, and most OF the alleged
fraudulent petitions-and they bore that ap-
pearance upon their face-were filed before
the date spoken of.
On route No a. 149 a false petition was
charged to have been filed July 10. 1879, but
the evidence was that it was filed April 3,
1879, and it seemed that it was barred by
the statute. But here another question
| arose, whether the parties interested in pro-
| curing the order in using the false petition
| filed April 3, 1879, to secure the order of
July TO- 1879, had not committed an act in
pursuance of the conspiracy There was a
statute bearing on that subject, and he
| should hold to the proposition that a party
awaiting OF false paper to secure an order
on certain day would not be protected by
the fact that it had beeA filed before that
day
Judge Wylie then enumerated other pa
| pers corresponding in character to that al
was not single instance where papers were
| filed within the statute of limitations.
Mr. Bliss interrupted to say that the atfi-
| davit on route No. Al ,119 was clearly within
that period, but Mr.. Ingersoll declared
that the description of the paper was fatally
defective.
Judge Wylie then turned to the indict-
ment. He said he was not disposed to at
| tach any weight to the averments that there
were fraudulent sub-contracts for they
amounted to nothing he could not see how
| they resulted in loss to the government. An
| indictment should set out any overt act as
having been done in pursuance of the con-
! sriracy, and perhaps this indictment was de-
| fective i'll that respect; but that fault was
cured by section OPS of the statutes For
more than a year the Indictment had been
under constant fire, exposed to demurrers
and TO every species OF attack which the in
genuity of able counsel could devise, but
that fault had never been mentioned. The
| indictment was defective throughout in that
way. 1t charged Brady's orders with being
fraudulent without alleging that they were
made in pursuance of the conspiracy, but the
same statute cured that defect, and he would
hold the indictment sufficient as against the
| defendants, including Brady
| Judge Wyle then turned to the printed
prayers and commented upon those not al
ready disposed of in his preceding remarks.
| touching the amount OF credence to be given
Rerdelps testimony, Judge Wylie said it was
not to he dscredted because 1t was that of
an accomplice if it was corroborated by
| other witnesses and sustained by the mate
rial theory and aspect of the case. In con-
sidering the testimony given by the defend
| ants the jury must make allowance for the
temptation to which they were exposed. He
| could not grant the governments prayer
| that the jury be directed to regard as a cir
cumstance tending to prove guilt the refusal
OF the defense to produce books and other
| written evidence upon notice. That was
not law. 1t did not allow unfavorable
! inference to be drawn from such refusal, but
it tallowed the prosecution to give secondary
evidence, and it was good for all if it could
| fairly prove, and could not afterwards be inn
| peached or contradic.ed.
The court thought the jury could find any
other defendant guilty of conspiracy with
Rerdell. OF the failure to call Bosler and
| williamson, the court said the jury was at
liberty to draw inferences if they believed
that those witnesses could have given i'm
portant evidence. This disposed of the
pra yers for the prosecution
THE PRAYERS FOR THE DEFENSE
Judge Wylie then proceeded to answer
such prayers of the defense as were desig-
mated by that side. The jury was instructed
that it was their duty to find that there was
no conspiracy, if the facts proven could
be accounted for by any reasonable
hypothesis in no sense based upon the evil
dence. A large number OF prayers attack
ing the indictment upon the ground that it
had been drafted under an improper stat
ute and complaining of erroneous descrip-
| tion of papers were refused. The ninety
ninth prayer, admitting the right of the
| jury to disregard the entire testimony of
witness who knowingly swearS falsely on
material point was allowed. The nineteenth
prayer clothing the defense with the pre-
sumption that it was in no sense guilty un-
| til proved guilty beyond reasonable doubt
was allowed. Many of the remaining pray
ers for the defense were refused and the re-
mainder withdrawn.
| A number of exceptions to the charge
were noted by the counsel for the defense
AT Mr. Bliss's suggestion, the jury were
| instructed that they might find conspiracy
between Peck and one of the defendants.
The foreman asked that the jury be furnished
with a copy of the charge but Judge Wiley
smilingly said that it was "all in the air." he
had no record of it. If the jury were at a
loss in regard to any point of law the court,
upon their application. would relieve them.
A bailiff was then sworn to take charge of
| the jury, copy OF the indictment was given
| to the jury, and they retired
| The court then took a recess until 10 o clock
!. tomorrow morning, with the understanding
that if the jury arrived at verdict before
10 O'Clock tonight the court will reassemble
to receive it, ....
THE JURY.