United States v. Greene

SPEER, District Judge

(charging jury). A grand jury drawn conformably to law from the judicial division and district having jurisdiction has presented three indictments against the prisoners. The indictments are numbered 322, 371, and 476. The first was returned December 8, 1899, the second February 28, 1902, and the third November 18, 1905. The accused indicted in the three indictments are Benjamin D. Greene, John F. Gaynor, William T. Gaynor, Edward H. Gaynor, Michael A. Connolly, and Oberlin M. Carter. Of the persons named, Benjamin D. Greene and John F. Gaynor are on trial. The indictments have been consolidated, the accused have pleaded not guilty to the charges made, and thus the issues are formed which you are to determine. The indictments will be before you. They have been read or sufficiently explained. It is, however, proper that the court shall direct your attention to the substance of the charges made in the several counts.

Conspiracy to defraud the United States is one of the alleged crimes. It is made in indictments 322 and 371. It is made punishable by section 5440 of the Revised Statutes [U. S. Comp. St. 1901, p. 3676]:

“If two or more persons conspire either to commit any offense against the United States or to .defraud the United Slates in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not less than $1,000, and not more than $10,000, and to imprisonment not more than two years.”

Before this statute becomes applicable two or more persons must conspire to commit an offense against the United States,- or to defraud the United States in some manner, or for some purpose. Having thus conspired, if one or more of such parties do an act to effect the object of the conspiracy, all the parties to the conspiracy shall be liable to the penalty. While this statute denounces conspiracy, it does not define it. It is an agreement of two or more persons to accomplish an unlawful purpose, or a lawful purpose by unlawful means. The essence of this offense is the unlawful combination. In union there is strength. This is true of combinations to do wrong as of combinations to do right. One man may desire, and even plan, to commit crime; but, where several agree to a common criminal design, the probability of their success, and therefore of injury to society, is largely enhanced. For this reason the mere act of conspiracy, the mere unlawful agreement, was indictable by the common law and is indictable in many, if not all, of the states. It is, however, true that the legislation of Congress, to which we must look exclusively for the definition of crimes of which we have jurisdiction here, provides that *806 one or more of the parties to the conspiracy must do some act to effect its object before it becomes punishable by national law.

Your inquiry as to- this charge will be: First, was there the conspiracy as charged? If you find there was, you will next inquire: Was any act done by one or more of the parties’to such conspiracy to effect its object? ,Such acts need not be the acts of the alleged conspirators actually on trial, but finding the conspiracy you may consider such acts of either one or more, or all the persons indicted, to ascertain if any act to effect the object of the conspiracy was done.

Now, why does Congress require something to be done before an unlawful agreement is indictable? It is because of the humanity of our laws. Under the English law, the mere conspiracy was indictable; but by the law of our general government, quoted, the conspirators may conspire all they please, provided that none of them do anything to carry out the object about which they conspire. In other words, it was the purpose of Congress to give them what is termed the locus penitentiae; that imports an opportunity or point at which they may repent and abandon their unlawful purpose.' But when anything is done by one of the conspirators to effect its object, it is regarded by our law as such an aggravation of the conspiracy that there is .no longer a place for repentance, and the penalties of the statutes attach. .

How majr a conspiracy be proved? By witnesses to the agreement itself, or by proof of facts from which the jury may infer it. Rare indeed are the cases where a conspiracy can be proven by witnesses who heard it made. From its very nature, it is a secret or furtive agreement. Indeed, a famous writer upon criminal law,' Mr. Archibald, declares that:

. “A case cannot be easily imagined in which a conspiracy can Be expressly .proven, unless where one of the persons implicated in the conspiracy consents to be examined as a witness for the prosecution.'’

A conspiracy, however, is more dangerous to the public bn this very account. It follows, in nearly all cases, that the charge of conspiracy is supported by proof of facts from which the jury may fairly infer it. You have -already gathered from what I have said that, where several parties conspire or combine together in conspiracy, each is criminally responsible for any act. of his associate, or associates, done to effect the object of the crime. In such cases, in contemplation of law, the act of one is the act of all-. One person alone cannot be convicted of conspiracy. Two ma)' be-. One may be; provided that another or others also indicted are shown to be guilty with him. It is also true that, upon the trial of charges of this character, where the prosecution depends upon inferences to be drawn from facts, great latitude of proof must be allowed. “The jury,” said the Supreme Court of the United States, “should have before them every fact which will enable them to come to a satisfactory conclusion, and it is no objection that the evidence covers a great many transactions and extends over a long period of time, provided, however, that the facts have some bearing upon and tendency to prove the ultimate fact in issue.

Having, - as I think, sufficiently for the purposes of your inquiry explained the crime of conspiracy in general, it now becomes my duty *807 to attempt to make plain the particular conspiracy with which the prisoners are here charged. While there are three indictments and many counts, all of which you must consider, for the purposes of condensation and brevity, at present I direct your attention to indictment No. 371. This indictment, in language appropriate in a legal sense, charges that on the 1st day of January, 1897, Benjamin D. Greene, John F. Gaynor, William T. Gaynor, Edward H. Gaynor, Michael A. Connolly, and Oberlin M.. Carter did conspire to defraud the United States of large sums of money. It is alleged that persons indicted had devised a fraudulent scheme for this purpose. This scheme, the indictment recites, on or about the year 1891, was first concocted and put in operation, and had been “continuously in process of execution,” until renewed in the conspiracy entered into at the date mentioned in 1897. It is further charged that the conspiracy and acts done to effect its object continued thereafter in process of execution by the alleged conspirators.

The charge of conspiracy is, in substance, as follows: Oberlin M. Carter was an officer of the corps of engineers of the United States Army. From about 1888 until about the 30th of July, 1897, he was, as such engineer officer, in charge of what is called the Savannah district. His duty involved the execution of river and harbor improvements in the district mentioned. In this capacity he was vested with power, duty, and discretion to propose projects for the improvement of rivers and harbors, and projects for the expenditure of money appropriated by Congress for this purpose. It was his duty to devise and draft specifications for contracts for such improvements. His was the duty and discretion to recommend the acceptance of such contracts by his superior officers, to 'draft and suggest forms of advertisements, and to fix the period in which these should be published, and thus to give notice to the public that competitive bids would be received by him for the construction of the works proposed. His also was the power of suggesting and fixing the period in such contract specifications, within which a successful bidder would be required to commence work. He had the duty to give out information in regard to contracts to be let, to receive proposals for contracts, to recommend the award of the same, to approve or reject the bonds required of contractors, to superintend their work, to approve or reject the same as it might be in accordance with the requirements of the contract or otherwise, to suggest and recommend modifications of such contracts to be made by the Secretary of War, in certain cases without competitive bids and without public advertisement. He had also power and duty to approve or reject the accounts rendered to him by con-' tractors for work done or claimed to have been done by them. It was his duty to approve such accounts if they were fair and honest, and to reject them if they were false or fraudulent. He was the disbursing officer of the government for all the purposes of his work, and, when the funds therefor had been appropriated and set apart for the work of his district, he was vested with the power, duty, and discretion to pay the contractors, if their claims for work done were *808 honest and fair, and to refuse to pay them if such claims were false and fraudulent.

It is further charged that it was comprehended in the fraudulent scheme and device that Carter should misuse the official powers, duties, and- discretion above enumerated; that he should do this so fraudulently that competitive bidding, for contracts to be let for the government by him, should be cut off, so that his co-conspirators would be the only successful bidders for the contract work of the district. In this manner it was contemplated that all such contract work would be secured by one or the other of the alleged co-conspirators, or by some other person for their benefit, with the result that the works constructed for the United -States on such contracts would be let at high and exorbitant cost.

In furtherance of this project, it is also charged -that Carter, as engineer officer, would frame the specifications of contracts for constructing jetty works and training walls with a specified fraudulent intent. This consisted in the contrivance of specifications in certain contracts of three designs. of “mattresses” to be used as a part of the projected improvements. For these the contractors were to be paid by the United States at a certain price per square yard. Such contract, with its specifications, would provide that the engineer in charge might, at his option, require the contractor to put in the works a large number of square yards of a particular design of what is -called a “log and brush mattress,” and other specifications provided that the engineer at his option and at the same price to be paid by the United States, in lieu of -the log and brush mattress, might require the same number of square yards of another specified design of what is usually called a “brush mattress.” The log and brush mattress was costly in its character, and was therefore expensive to the contractor. The cost of the brush mattress was not only much cheaper to the contractor, but of much less value to the United States. By a vague description in the specification of the cheaper and inferior, that is to say the brush mattress, the engineer, by a fraudulent and strained construction, would accept and approve large numbers of square yards thereof at very much less cost to the contractor, and of a value much less to the United States than would be the same number of square yards of the log and brush mattress which might under the specifications be exacted by the engineer.

It is charged that the scheme comprehended that such specifications should be so devised and drafted by the engineer officer that all persons not parties thereto should have no information as to whi ch design of mattress would be required until after the bids for the contracts were received. It followed that bidders not parties to this scheme would be compelled, it is charged, to make bids at prices based upon the most expensive construction mentioned in the specifications. On the other hand, it is further charged that the defendants would' be advised by Carter before their bids were -put in, and opened, that, if they or any one of them should be the successful bidder, the engineer officer would require mattresses of the cheapest design, and that the design itself would be construed most liberally in their favor. This, it is *809 stated, was done with the intent that the alleged conspirators, or some other person or corporation acting for them, should always be the .successful bidders for such work at the lowest cost to the contractors, and at the highest cost to the United States. The effect of this, as otherwise stated in the indictment, was to require the successful bidder to furnish, at the option of the engineer officer, at one price per tinit of work or material, several types of such work and of such material, largely varying in cost to the contractors — the option of the engineer officer, so far as the general bidder knew, was not to be exercised until after the letting of the contract, but that Carter would, prior to the time of opening the bids for such work, secretly inform the parties to the fraudulent scheme that he would require only the cheapest type of such material and work. This, it is alleged, was done to enable the contractors to obtain the contract at least expense to themselves and at greatest cost to the United States. It was also contemplated that, if some person not a. party to the fraudulent scheme charged should be the successful bidder, the engineer officer would require him to furnish that type of work or material specified in the contract most costly to him; and, further, that the engineer would in such case give the specifications such rigid and unfair construction, against the interest of the contractor, that the performance of such contract would be ruinous to him. This was done, it is alleged, with the further purpose to cut off all competition between other contractors, and the parties to the fraudulent scheme. In addition to this, it is alleged that the scheme contemplated that Carter, as such engineer officer, should, in the actual construction of the work done under contracts obtained by or for the benefit of his co-conspirators, so change the quantities and type of material and work as would insure to them the maximum profit in such contracts, and he should do this even though the changes thus made would result in imposing upon the government work and material of very inferior value.

It is further charged that, when some person not a party to the scheme was the lowest bidder at the letting of such contracts, and one of the co-conspirators had put in a bid at a higher rate, Carter, as engineer officer, would recommend the rejection of the lowest bid for any slight defect in the proposal. Tn other instances, where it was discovered that a lower bid had been made, in order to carry out the fraudulent scheme, as such officer he would permit the parties to the scheme to present hurriedly written proposals at a lower figure for such contrácts and written guaranties thereon, and Carter would knowingly and corruptly approve for acceptance such proposals, although he might also know that the written guaranties were forgeries. It is charged that in addition he would knowingly approve for acceptance by the United States written modifications of such contracts and written consents of the contractors’ bondsmen, although he knew the signatures of the contractors were forgeries, and it is alleged that he would knowingly and fraudulently approve for payment claims and accounts rendered to him as disbursing officer by the alleged co-conspirators, or by one of them, or .by a person or corporation, who had nominally secured contracts for their secret benefit. And, finally, as *810 disbursing officer, it was charged that when in funds he would fraudulently pay over to the parties to said scheme, or one of them, or to -some person or corporation for their benefit, the accounts of money for which their claims were rendered, and that the parties to said fraudulent scheme, including Carter himself, would divide and appropriate to their own use, the money thus fraudulently obtained.

It is further charged that on or about the 1st day of January, 1897, Benjamin D. Greene, John F. Gaynor, William T. Gaynor, Edward H. Gaynor, Michael A. Connolly, and Oberlin M. Carter, were proceeding with the construction of certain works in this district. This was under two contracts. These had been obtained by the alleged co-conspirators, on October 8, 1896. They were obtained, it is alleged, for their secret benefit, but in the name of the Atlantic Contracting Company, through Oberlin M. Carter, engineer officer in charge, fraudulently, at high and exorbitant prices and cost to the United States, by means of the fraudulent scheme hereinbefore described. One of these contracts was for the construction of jetties at Cumberland Sound. The other was for the construction of training walls and improving Savannah Harbor.

It is further charged that the alleged conspirators on the 1st day of January, 1897, in this district, did conspire together to defraud the United States of large sums of money by means of the fraudulent schemes and device heretofore described, and that this scheme was applied, not only to the execution and completion of the work under the contracts made on the 8th day of October, 1896, but also to the presentation to and approval by Oberlin M. Carter, engineer officer, of Claims and accounts, and the payment of money on the same, and to the division of such money so fraudulently paid between the parties to said fraudulent scheme and conspiracy.

It is further alleged that the ■ conspiracy extended also- to the concealment of the money so fraudulently paid, and so fraudulently di'vided between the conspirators; that the fraudulent scheme was also applied so as to obtain for the conspirators, or for some person or corporation for their benefit, all contracts for river and harbor improvements which might thereafter be let in the Savannah district; that-this was.done through Oberlin M. Carter, as such engineer'officer; and that he also, in pursuance of said fraudulent scheme, as aforesaid, obtained for the accused modifications of contracts, and the presentation and approval of claims and accounts upon the contracts so modified, at high and exorbitant prices, and the payment of money "on the same, and the division of such money so fraudulently paid between the defendants. The jury will observe the charge is that the conspirators agreed on or about the 1st day of January, 1897, to apply these fraudulent schemes alleged to have been concocted in 1891, not only to the contracts of October 8, 1896, bitt to modifications of such contracts obtained, or to be obtained.

It is further charged that, on or about the 1st day of January, 1897, the alleged conspirators, including the defendants on trial, were proceeding with the construction of certain works in this district. This was under the two contracts of the 8th day of October, 1896. These *811 had been obtained by tile defendants, for their secret benefit, in the name of the Atlantic Contracting Company. They had been fraudulently obtained by means set forth in the fraudulent scheme herein-before described. One of these contracts was for the construction of jetties at Cumberland Sound, and the other was for the construction of training walls and for improving the harbor at Savannah. Then follows the specific charge that the defendants did on that day conspire to defraud the United States of large sums of money by applying the fraudulent devices relating to the execution of the work under such contracts to the execution and completion of the work of the contracts of October 8th, upon which they were then engaged, and to the presentation and approval of claims and accounts, and the payment of moneys on the same, and the division thereof.

I will at this point caution-you that all I haye said, or may say, in this description or analysis of the indictments, refers to matters alleged, and not to matters in evidence. You will recall my instructions to the effect that, before a conspiracy of this character is punishable by the statute of the United States heretofore explained, some act must be done by one or more of the conspirators to carry its object into effect. This, in the terminology of the law, is called an overt act. This imports an act which manifests the intention of the conspirator to carry out his criminal design. Such an act is now charged to have been done by two of the alleged conspirators. It is that Michael A. Connolly, one o E the persons indicted, did on the 17th day of March, 1897, assist the said Oberlin M. Carter in the preparation of a certain document, purporting to be articles of agreement entered into between Oberlin M. Cartel, captain corps of engineers, United States army, and the Atlantic Contracting Company. This document purported to modify the contract which had been made on the 8th day of October, 1896, between the Atlantic Contracting Company and Oberlin M. Carter, captain corps of engineers, for the work at the entrance of Cumberland Sound, Ga. It purported to be signed by O. M. Carter, captain corps of engineers, United States army, and by the Atlantic Contracting Company, John F. Gaynor, president, and by William T. Gaynor, secretary. Upon these appeared the name of Michael A. Connolly as attesting witness to the signatures. It is charged that Michael A. Connolly did then and there himself write thereon the name and signature of the said William T. Gaynor, secretary; further, that the said Michael A. Connolly did likewise then and there assist the said Oberlin M. Carter in the preparation of a document purporting to be dated on the 18th day of March, 1897, and purporting to be the written consent of Anson M. Bangs, and Eugene Hughes, the contractors’ bondsmen, on the contract of October 8, 1896. This consent purported to relate to the modified agreement for work at Cumberland Sound, dated March 17, 1897, above described, and it is charged that Michael A. Connolly did then and there write the signatures, “Anson M. Bangs” and “Eugene Hughes,” signed to said document, which purported to be their assent as sureties. It is further charged that he did then and there write the signatures “James C. Bogart” and “Henry Smith,” which signatures purported to be signed on said document as *812 witnesses to the signatures of Anson M. Bangs and Eugene Hughes thereto.

It is further charged that Oberlin M. Carter did then and there knowingly cause said documents with false signatures of William T. Gaynor, Anson M. Bangs, Eug-ene Hughes, James C. Bogart, and Henry Smith signed thereto, as aforesaid, to be then and there forwarded to the War Department of the United States, with Carter’s recommendation for their approval by the Secretary of War.

Another overt act charged to have been done to carry tire object of the conspiracy into effect is that the alleged conspirators, Benjamin D. Greene, John F. Gaynor, William T. Gaynor, Edward H. Gaynor, Michael A. Connolly, and Oberlin M. Carter, did on the 1st day of July, 1897, knowingly, willfully, and fraudulently cause to be presented for approval and payment to Oberlin M. Carter, engineer in charge of the Savannah district, a certain claim against the United States; the said conspirators knowing that the claim was fraudulent. The claim is .as follows:

“Savannah, Ga., July 1, 1897.

“The United States Engineer Department to the Atlantic Contracting Company, Dr.

“To labor and material furnished during the month of January, 1897, under formal written contract dated October 8, 1896, on work of improving Harbor at Savannah, Georgia, as follows:

31,724.23 square yards of brush mattress, at .95.$30,138 02

2,297.86 cubic yards of fourth-class stone at $2.75. 6,319 11

$36,437 13

Less 10 per cent, retained. 3,645 71

Amount due.$32,811 42

“Submitted by The Atlantic Contracting Company,

“By Edward II. Gaynor, Treasurer.”

It is charged that this claim was fraudulent, because the price charged for the brush mattress was the high and exorbitant price provided for in the contract of October 8, 1896, for Cumberland Sound; also that the quality of the material in said brush mattresses, and in the fascines composing the same, as furnished in said work and charged for in the claim, was inferior to that called for in the specifications for said contract; that the form of construction of both" mattresses and fascines are different from and inferior to the forms prescribed in the specifications; that the mattresses contained less material per square yard of mattress surface than the specifications required; and that all this was done in accordance with the fraudulent devices in the scheme hereinbefore described, and through the fraudulent exercise of his powers and discretion by said Oberlin M. Carter, as engineer officer, in favor of the contractors, and against the United States.

The second count -charges the fraudulent scheme which it is alleged was' renewed and adopted by the conspiracy in substantially the same language as in the count 'just explained. Other overt acts, however, are described and charged. -The first is that Oberlin M. Carter, engineer'officer, as aforesaid, did then and there issue to the *813 Atlantic Contracting' Company a certain check, signed by him in his official capacity, and drawn on the Assistant Treasurer of the United States, New York, and payable to the order of the Atlantic Contracting Company, for the sum of $345,000, for contract work improving Cumberland Sound, Ga., and did then and there deliver the said check to John R. Gaynor, in payment of a claim of the said Atlantic Contracting Company, for said sum, for work claimed to have been done by that company in the improvement of Cumberland Sound under the contract of October 8, 1896, which claim he, the said Oberlin M. Carter, then and there knew to be fraudulent. The check is set forth in words and figures following:

“War. U. S. Engineer, Office Engineers.

“No. 275,037. Savannah, Ga., July 6, 1807.

“Assistant Treasurer of the U. S., New York.

“Pay to the order of the Atlantic Contracting Co. three hundred and forty-five thousand dollars ($345,000.00). O. if. Carter,

“Capt. Corps of Engrs. TJ. S. A., Engineer, U. S. A.

“State object for which drawn:

“Contract work. Improving Cumberland Sound, Ga.”

Here also are reiterated, in substance, the charges as set forth in the second'count, wherein the alleged fraudulent character of the claim is described.

A third overt act is charged with relation to the issuance of another check of the same general character, for the sum of $230,749.90, for contract work improving Savannah Harbor, Ga. This check, it is also charged, was delivered to John F. Gaynor in payment of a claim of the Atlantic Contracting Company for said sum. It is set forth in the indictment, as follows:

“War. U. S. Engineer, Office Engineers.

“No. 270,537. Savannah, Ga., July 8, 1897.

“Assistant Treasurer of the Ü. S., New York.

“Pay to the order of the Atlantic Contracting Company two hundred and thirty thousand, seven hundred and forty-nine 90-300 dollars ($230,749.90).

“0. M. Carter,

“Capt. Corps of Eng. T7. S. A., Engineer U. S. A.

“State object for which drawn:

“Contract work. Improving Savannah Harbor, Ga.”

It is alleged to he fraudulent for the reasons substantially stated in similar claims hereinbefore described.

The charge of the third count is presented with some variation from the language used in stating the charges previously explained. While it would appear to be the charge of a conspiracy complete in itself, with relation to certain formal written contracts, each dated the 8th day of October, 1896, one of which was for the construction of jetties at Cumberland Sound, and the other for the construction of training walls and improving the harbor of Savannah, in a general sense, the means of which the persons charged availed themselves are similar to those set forth in the previous counts. To this is superadded the charge that Carter, as engineer officer, knowingly and corruptly, with intent to defraud the United States, would approve for acceptance written modifications ot such contracts, and with false and forged *814 signatures of the contractors’ bondsmen to written consents to such modifications, and would forward such false documents to the War Department of the United States, as if they were genuine documents, for the approval of the Secretary of War. This was done, it is charged, with the intent to secure to the alleged conspirators, without competition, supplementary contracts at high and exorbitant prices. It is charged that the contractors themselves would be the only real bidders for such contract work; thai this was done secretly for the benefit of the conspirators, naming them; and that Carter not only inaugurated such projects, but would so superintend the execution of the same that large amounts of unnecessary and useless work would be fraudulently undertaken and done.

There is the further charge that Carter, as engineer officer in charge, would so falsely and fraudulently exercise his powers in the approval and acceptance of the work that the contractors would receive payment for the construction of such work under such contracts at high and exorbitant rates for the poorest and cheapest class of material and work put under such contracts at least cost to such contractors.

As an overt act done in pursuance of this conspiracy, and to effect its object, it is charged that Michael A. Connolly assisted Carter by committing the same forgeries as charged in the first count; that this was done with the same fictitious consents, and with the same forged signatures of Anson M. Bangs and Eugene Hughes, of James C. Bogart and Henry Smith therein described, ,and that Carter did knowingly cause said document with said false signatures to be forwarded to the War Department of the United States with his recommendation that the}^ be approved by the Secretary of War.

As another overt act done in support of this conspiracy, it is charged that .the conspirators did knowingly, willfully, and fraudulently cause to be presented to Carter for approval and payment a claim for the sum of $345,000 for labor and material and supplies claimed to. have been furnished the United States from December, 1896, to June, 1897.' It is charged that the conspirators well knew that this claim was fraudulent; that the labor, material, and supplies furnished and charged for at the prices fixed were of inferior quality and not in accordance with the specifications of the contract; that the brush mattresses and fascines■ were not in accordance with the forms prescribed; that the mattresses charged for by the square yard contained less material per square-yard of mattress surface than the form of mattress required by the specifications of the contract; and that the claim was false in this respect that the quantity of material charged for at the contract price was largely in excess of the quantity actually furnished.

The fourth count of the indictment is framed under a different penal statute of .the national laws. This is section 5438, Revised Statutes [U. S. Comp. St. 1901, p. 3674]:

“Every person who makes or causes to be made, or presents or causes to be presented, lor payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, any claim upon or against the government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious or fraudulent, or who, *815 for tlie purpose of obtaining or aiding to obtain tlie payment or approval of such claim, makes, uses, or causes to be made or used, any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, or who enters into any agreement, combination, or conspiracy to defraud the government of the United States, or any department or officer thereof, by obtaining or aiding to obtain the payment or allowance of any false or feuidulent claim— every person so offending in any of the matters set forth in this section”— shall be liable to the penalties prescribed.

When you look to the indictments you will find that the fourth count charges conspiracy to commit the crime defined in the distinct clause of the statute. This provides:

‘‘Every person who enters into any agreement, combination or conspiracy to defraud the government of the United States or any department or officer thereof or aiding to obtain the payment or allowance of any false of fraudulent claim shall be liable” — to the penalties of the statute.

The conspiracy charged in the fourth count is an explicit charge that Benjamin D. Greene, John E. Gaynor, William T. Gaynor, Edward H. Gaynor, Michael A. Connolly, and Oberlin M. Carter did combine, conspire, confederate, and agree together to defraud the government of the United States by obtaining through Oberlin M. Carter, in his official capacity heretofore described, a certain false and fraudulent claim. This was for labor and material claimed to have been furnished by the Atlantic Contracting Company under the contract entered into on the 8th day of October, 1896, for improving Cumberland Sound; that the claim was for the sum of $345,000; that Carter was a disbursing officer of the United States intrusted with the disbursing of money applicable to such improvements; that he was vested with power, duty, and discretion to approve such claims; that the conspirators, all of them, knew- that the claim was false and fraudulent, in this, that the labor, material, and supplies furnished and charged for at the prices fixed in the contract were inferior in quality and not in accordance with the specifications, nor were the brush mattresses and fascines composing them in accordance with such specifications ; and that the quantity of material charged for was largely in excess of that actually furnished.

As an overt act to effect the object of tlie said conspiracy it is charged that the alleged conspirators presented a false and fraudulent claim in words and figures as follows:

“Savannah, Ga., July 1, 1897.

“The United. States Engineering Department to the Atlantic Contracting

Company, Dr.

“To labor and material furnished during the month of December, 1896, on work of improving Cumberland Sound, Georgia, under formal written contract dated October 8, 1896, as follows:

18,727.34 square yards of mattresses at $1.10.$20,600 07.

1,968.06 cubic yards of third-class stone at $3.90. 7,675 48

$28,275 50

Less 10 per cent, retained. 2,827 55

Amount due.$25,447 95

“Submitted by The Atlantic Contracting Company,

“By Edward H. Gaynor, Treasurer.”

*816 ■ — and that this claim was false and fraudulent for the reasons just stated.

The fifth and sixth counts contain no charge of conspiracy, but are framed under the clause of the statute which provides:

“Every person who makes or causes to he made or presents or causes to be presented for payment or approval to or by any person or officer in the civil, military or naval service of the United States, any claim upon'or against the government of the United States or any department or officer thereof, knowing such claim to be false, fictitious or fraudulent, or who for the purpose of obtaining or aiding to obtain payment or approval of such claim makes, uses or causes to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, shall be liable to the penalties of the statute.”

The fifth count contains no charge of conspiracy. It presents the specific allegation that the parties indicted did unlawfully, willfully, and fraudulently cause to be presented to Carter false and fraudulent claims for labor and material furnished by the Atlantic Contracting Company under a contract entered into on the 8th day of October, 1896, for the construction of retaining walls and improving the. Harbor of Savannah; that this claim was for the sum of $230,749. It is charged to be of the same fraudulent character and for the same reasons set forth in the preceding count which has just been explained.

The sixth count is similar in character. It charges that in the same manner and with the same criminal purpose these same parties did present to Carter, in his official capacity, a fraudulent claim of the sum of $22,612.46. This claim was then and there presented in the form of a voucher and account in the words and figures following:'

“Savannah, Ga., July 1, 1897.

“The United States Engineering Department to the Atlantic Contracting Company, Dr.

“To labor and material furnished during the month of December, 1896, under formal written contract dated October 8, 1896, on the- work of improving. Harbor at Savannah Harbor, Georgia, as follows:

21,356.67 square yards of mattresses at .95 .$20,288 84

1,758.59 cubic yards of fourth-class stone at $2.75 . 4,836 12

$25,124 96

Less 10 per cent, retained. 2,512 50

Amount due ...$22,612 46

“Submitted by • The Atlantic Contracting Company,

“By Edward H. Gaynor, Treasurer.”

This is charged to, be false and fraudulent for the same reasons set forth with relation to the fraudulent claims alleged to have been presented in the fifth count.

The sixth count of this indictment concludes with the following charge:,

“And the grand jurors aforesaid, upon their oaths aforesaid, do further present that after the said Benjamin D. Greene, John F. Gaynor, William T. Gaynor, Edward H. Gaynor, Michael A. Connolly, and Oberlin M. Carter had, in said Southern district of Georgia, on or about the 1st day of July, Anno Domini 1897, conspired and agreed' together to defraud the United States as *817 aforesaid, and after the said conspirators had done the acts hereinbefore set forth to effect the object ol said conspiracy, and at a time, the exact date of which is to the grand jurors aforesaid unknown, hut which was prior to the 1st day of December, Anno Domini 1890. the said Benjamin D. Greene, John If. Gaynor, William T. Gaynor, and Edward H. Gaynor left the Southern district and state of Georgia, and continuously remained away from said Southern district and state of Georgia until or about the 1st day of February, Anno Domini 1902, and during said period, to wit, from said time prior to the 1st day of December, A. D. 1809. to the 1st day of February, Anno Domini 1902, continuously, the said Benjamin D. Greene, John F. Gaynor, William T. Gaynor, and Edward U. Gaynor were persons fleeing 'from justice.”

A brief explanation will suffice to explain to you the charges in indictment No. 383. The same persons are indicted. It is charged that they formed and operated for some years in the district a certain scheme to defraud the United States under contracts for river and harbor improvements. This scheme is fully described in the indictment and is substantially the scheme heretofore explained to you. The devices to be used as charged were of three general classes: The first, those relating to the fraudulent letting of the contracts to the defendants without competition and at exhorbitant prices; second, those relating to the execution of the work in disregard of the specifications and of fair dealing, and the fraudulent acceptance of such work by the engineer; third, those relating to the approval and payment by the engineer of the accounts to be rendered for such work. That the work was done at exorbitant and fraudulent prices, that the accounts were fraudulent, that the division of the fruits of the fraud between the engineer and the contractor followed, is also charged.

It is further charged that on October 8, 1896, the defendants had fraudulently obtained from the engineer officer, by means of the said fraudulent scheme, two certain contracts, described in the indictment, let by the engineer. The distinct charge of conspiracy follows. It is made in the following language:

“The said Benjamin D. Greene, and naming the other alleged oo-conspira-tors, on said 1st day of January, 1897, in the said Eastern division of the Southern district of Georgia, then and there unlawfully, knowingly, and feloniously ainougst themselves, and with said divers other persons to the grand jurors aforesaid unknown, did band, conspire, confederate, and agree together as aforesaid, 1o defraud the United States of said divers large sums of money hereinbefore mentioned, by means of applying said fraudulent scheme in and to the execution and completion of the work under said contracts so made on the 8th day of October, 1896, as aforesaid, and in the obtaining of the money for the fraudulent accounts which should be rendered under said contracts to said Oberlin HI. Garter, as such engineer officer as aforesaid, and generally to carry said fraudulent scheme into execution in the obtaining of all contracts of like character which might thereafter be let in said Savannah district by the United States through the said Oberlin M. Carter, as such engineer officer.”

In the second count, as an overt act done to carry out the object of the conspiracy, it is charged that the defendants Connolly and Carter knowingly prepared on March 17, 1897, a document with false signatures and false witnesses, giving to the defendant contractors, without competition, a contract for harbor improvements by dredging, and *818 that Carter approved this contract and recommended* its acceptance by the Secretary of War.

The third count charges as an additional overt act that the defendants on the 1st day of July, 1897, caused to be presented to Carter as such disbursing officer a certain claim against the United States, which claim is set out in a former count in words and figures. And it is further charged that they knew the claim to be false and fraudulent.

The fourth and fifth counts charge as to other overt acts the issuance by Carter of two certain checks as disbursing officer. These are described in the respective counts, and these it is charged were issued for claims presented by the defendants which he and they knew to be fraudulent.

In the sixth count is charged the conspiracy alleged to have been formed on or about January 1, 1897, and is in legal effect the same as the third count in indictment 371, which has been heretofore explained; but it sets forth the conspiracy there charged without reciting the antecedent scheme or combination, as had been done in the first count of that indictment, and'in this also.

. The seventh count charges an overt act to carry out the object of the conspiracy, the presentation of the claim for $345,000 for labor, material, and supplies, heretofore described. And the eighth count charges another overt act, namely, the issuance by Carter, as engineer officer in charge of the Savannah district, of a certain check in payment of said claim which he then and there knew to be fraudulent. The check is set forth in this count of the indictment, and is the same check for $345,000 which has been heretofore read.

The last two counts, namely, ninth and tenth, of this indictment, have been stricken on demurrer. This was the first indictment found. It was clearly not obnoxious to the statute of limitations for the crimes alleged, and therefore contains no charge that the accused now on trial were fugitives from justice.

The. grand jury has also indicted the persons accused for the crime of embezzlement. .Generally it may be said that this is a charge of crime based upon substantially the same facts and circumstances upon which the government relies to sustain the indictments already explained. Embezzlement may be defined as a fraudulent appropriation of another’s property by a person to whom it has been intrusted, or into whose hands it has lawfully come. The offense is of statutory origin, and the particular statute of the jurisdiction in which it is charged must be considered in order to determine the constituent ele.ments.of the offense there defiried. This is in section 5497 of the Revised Statutes [U. S. Comp. St. 1901, p. 3707]. Omitting irrelevant language, it will read:

“Every * * * person not an authorized depository of public moneys, who Imowingly receives from any disbursing officer * * * or other agent of the United States any public money * * * otherwise than in payment óf a debt against the United States, or who uses, transfers, converts, appropriates or applies any portion of the public money for any purpose not prescribed by law * * * is guilty of an act of embezzlement of the public money so * * * used, converted, appropriated or applied, and shall be punished,” etc.

*819 , The indictment framed pursuant to this statute is No. 476. It describes the official character of Carter, his trust for the improvement of rivers and harbors in the Savannah district, his powers, duties, and discretion, particularly that of approving or rejecting claims and accounts, his discretion as a disbursing ofiicer and agent of the United States for the payment of such claims from funds intrusted to him. It is then charged, by virtue of his office, and whilst he was so employed, that he had possession of the sum of $575,740, in lawful money, the property of his employer — the United States. It is further charged that the other defendants, Greene, • the three Gaynors named, and Connolly, not being authorized depositaries of the United States, received from Carter this sum, well knowing that it had been fraudulently paid out by him, and did then and there, with like guilty knowledge, apply this public money to the payment of two fraudulent claims against the United States aggregating that amount. These claims, it is alleged, Greene, the Gaynors, and Connolly caused to be presented in writing to Carter, and that they well knew the claims thus presented upon which the money was paid were fraudulent, and that such payment was an application of the public money of the United States for a purpose not prescribed by laiv. The indictment sets out a description of the claims and the particulars in which they are alleged to have been fraudulent. A description of the claims and the particulars; that is, a repetition. This description does not vary in any material way from that utilized in the other indictments. The method of the alleged fraudulent payment by Carter is also described. And it is charged that Greene, the Gaynors, and Connolly, so knowingly applying the public money of the United States for a purpose not prescribed by law, did then and there embezzle the same.

The second count of this indictment contains a similar charge of embezzlement. This describes an alleged fraudulent claim relating to the Cumberland Sound work, and the amount alleged to have been embezzled is $345,000.

The third count charges a similar offense. It describes a claim alleged to be fraudulent relating to the Savannah Harbor work. The sum alleged to have been embezzled is $330,749.90.

It will be observed that the fourth count of the indictment makes a general charge of embezzlement against the persons named in the first three counts and against Carter also, and charges him as participating with the others in the felonious embezzlement of the sum of $575,749.90, which is the aggregate of the sums alleged to have been fraudulently claimed on the Cumberland Sound work and on the Savannah Harbor vrork. It is also alleged to be the parcel of money of which the said Oberlin M. Carter then had the custody, management,, and control by virtue of his employment. And they are all charged that they did fraudulently and feloniously apply and dispose of the same to their own use and benefit; said application of said money being not for a purpose prescribed by law.

To each count of said indictment for embezzlement there is appended, the following charge: _ ■

*820 “And the grand jurors aforesaid, upon their oaths as aforesaid, do further present that after the commission, of the said embezzlement, and after the acts done hereinbefore set forth, to accomplish said embezzlement, at a time the exact date of which is to the grand jurors aforesaid unknown, but which was prior to the 1st day of December, A. D. 1899, the said Benjamin D. Greene and John F. Gaynor left the Southern district and state of Georgia, and continuously remained away from said Southern district of Georgia until on or about the ist day of February, A. D. 1902, when they returned to said Southern district of Georgia, and again on or about the 7th day of March, A. D. 1902, the said Benjamin D. Greene and John F. Gaynor again left the Southern district of Georgia and remained away from said Southern district and state of Georgia until on or about the 9th day of October, A. D. 1905, and that during said périod, to wit, from the said time prior to the said 1st day of December, A.' D. 1899, and the said 9th day of October, A. D. 1905, the said Benjamin D. Greene and John F. Gaynor were persons fleeing from justice. Contrary to the form of the statute in such eases made and provided, and against the peace and dignity of the said United. States.”

Such is the analysis of the indictment.

The grand jury having returned into court the indictments thus explained, and the accused having pleaded not guilty, the issues are formed to which for the last three months the jury and the court have given their undivided attention. There are, gentlemen, certain fundamental principles to which at'this stage of my effort to assist you I will call your attention. One of these is that ours is a government of laws, and- not of men. It follows that the triors of every accusation equivalent in importance to that under consideration, namely the jurors, should clearly understand not only the law, but the reason for the existence of the law, in whose administration their assistance is invoked. Among the chief causes of the formation of our government was the necessity for making rules for the regulation of interstate and foreign commerce. At one period of our history, even after our independence of Great Britain had been established, we had no such rules. Rhode Island might, and did, tax imports from Massachusetts and New York at a greater rate than similar commodities from Great Britain or any other foreign land. South Carolina might establish a custom house to exact imposts on products shipped from Georgia, and Georgia might do the same thing against South Carolina or any or .all of the 13 original states. This produced a condition which was seen to be intolerable, and some of the great men who had achieved our liberties set to work to arrange a treaty or agreement of commerce between Maryland and Virginia, and incidentally to control the navigation of the Fotomac River and the Chesapeake Bay. Washington, Madison, and other illustrious Americans of that day were promoters of this plan. But when the first conference was held at Alexandria, in Virginia, it was at once perceived that such an understanding was necessary, not only between Maryland and Virginia, but between all of the states which had taken part in the Revolution and had but four years previously established their independence. Further consideration between the statesmen and patriots of that day evolved the great convention of 1787, which framed the Constitution, the foundation law of our government. The convention which framed this Constitution was a body of men of whom the history of time affords no superior. It was composed of 55 members. The grade *821 o£ intellectuality was exceedingly high. Many of the states had taken care to send the older patriots. Four had signed the Declaration of Independence 11 years before. Many were brilliant patriots of ’76. Eighteen belonged to the Continental Congress. The convention truly represented the wealth, conservatism, and culture of the states. While many of the delegates in this day would he termed aristocrats, they were all devoted to the maintenance of the largest liberty consistent with the public safety, but no more. The convention comprised men familiar with the history of nations, and competent to deduce the les-:-ons of experience from the annals of time: Jurists of profound and solid learning, who well knew how much the noble science of jurisprudence had accomplished in the advancement of liberty and just government; soldiers, whose fortitude in the physical suffering of the battle and camp enabled them to estimate correctly the blessings of peace, which good government alone can insure. At last it was finished, and the illustrious Bancroft declares:

“The members were awe-struck with the result of their counsels.. The Constitution was a nobler work than any one of them had believed possible to devise.”

Jefferson has proclaimed that “it was the wisest ever presented to man”; and Gladstone, whose marvelous career had begun when your fathers were yet unborn, and who has yet lately departed, one o.f the noblest instances of enduring intellectuality the world has ever known, has declared:

“As the British Constitution is the most subtle organism which has proceeding from progressive history, so the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of men."

The objects of this Constitution, which is but a brief instrument, are adequately stated in its preamble:

‘“We, the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general welfare, and secure the Blessings of Biberty to Ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Such were the purposes of the law which organized the great Republic. This Constitution created a national Legislature. It comprehends, as you know, a Congress composed of the Senate and House of Representatives. This is the lawmaking body. The Constitution granted certain powers to Congress. Pour of these and the laws, made in pursuance thereof, may he easily discoverable among the foundation stones on which the indictments before you must rest;

First: “The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; hut all Duties, Imposts and Excises shall be uniform throughout the United States.”

Second: Congress shall have Power “To regulate Commerce with foreign Nations, and among the several States, and with ilie Indian Tribes.”

Third: Congress shall have Power “To make all Daws which shall be necessary and proper for carrying into Execution the foregoing- Powers, and *822 all other Powers vested by this Constitution in tbe Government oí the Thiitod States, .or in a.ny Department or Officer thereof.”

Fourth’“No money shall be drawn from- the Treasury but in Consequence of Appropriations made by Daw; and a regular Statement and Account of the Receipts and Expenditures of all Public Money shall be published from time to time.”

Under the laws made pursuant to the grant of the taxing power, the funds which the proof before you shows were intrusted to the disbursing officer of the government, and were subsequently expended, were collected from the people. Under the power of Congress relating to the expenditure of this money, acts of appropriation were made by Congress before a dollar of it was available for river and harbor improvements on the coast and on the interior waterways of Georgia. These appropriations were made under and in obedience to the principle of the preamble to promote the general welfare, and under the express grant of Congress to regulate interstate and foreign commerce. The object of this grant has for many years been held to include the promotion of interstate and foreign commerce, and, since much of this was conducted by maritime and waterway navigation, it has been as steadily held by our government that Congress had and has the power to make appropriations for the improvement of our harbors, of the approaches thereto, and of our navigable streams.

Commerce, said the Supreme Court, includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a state other than that in which they lie. Again, in a famous case between South Carolina and Georgia involving the improvement of the Savannah river, the Supreme Court declared that the right to regulate commerce includes the right to regulate navigation and hence to regulate and improve navigable rivers and ports on such rivers, and the same doctrine was emphasized in the case of Carter when it was carried to the Supreme Court of the United States.

A further brief consideration of the philosophy of our organic law will show you the reason for the laws with the violation of which the accused stand indicted. There is no syllable in the Constitution which expressly declares that conspiracy to defraud the government or embezzlement of government funds is criminal. There is, however, the grant of power to Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all others powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” Now, when Congress was given power to collect the money of the people, it followed ex necessitate that it must have the power to pass laws for its protection. When it was required that Congress should not spend money of the people except for the purpose for which it was appropriated, it became necessary to pass laws to guard the money which had thus been appropriated. When Congress was given the power to regulate interstate and foreign commerce, it was given the power to enact the laws to make that regulation of such character as would *823 promote interstate and foreign commerce, and would be contributory to the welfare of the people. And so these laws under which these indictments are framed were enacted by the representatives of the people of the states in Congress assembled.

■ Pardon me, if in passing I call your attention to another principle of -that great instrument of organic law. It provides:

“This Constitution and the Daws of the United States which shall be made in pursuance thereof: and all Treaties made, or which shall he made, under the Authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the Contrary notwithstanding.”

Not only is this to be found in the Constitution of the United States, but this provision is expressly reiterated in our own Constitution, and is. expressly enacted in- the first section of the Code of Georgia, that famous codification which is the pride of our jurists and the people of this state.

It follows, then, that this case in contemplation of the indictments involves, to an extent, the basic principles of our government; the safety of the money collected from the people for governmental purposes; the fidelity and integrity with which the Constitution and, the laws design that it shall be appropriated for the purpose .for which it was voted. In this case, this -was an improvement, for the people of our state, the people of other states, and foreign lands dealing;with us, of the facilities and instrumentalities of commerce found, in, those harbors, estuaries, and rivers with which the God of nature, has so •richly endowed our shore line, and on whose bosoms the commerce of this people may be borne from the farms where it is they are produced to producers and customers in other-states and in foreign; lands. It is, then, gentlemen, no ordinary case. It should command, the liveliest attention of the conscientious, patriotic, and intelligent citizens who are selected from among their fellows and at whatever hardship to themselves, consecrated by law for its fearless, impartial, and righteous determination. Nor should you forget that it involves other basic principles of government. These are clearly • outlined by the Bill of Rights in the Constitution. This provides that: ■

■ “No person shall be held to answer for a capital, or other infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.” , '

It also provides:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and District wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

In the practical application of that sovereign rule which secures to the accused an impartial trial, there are other settled principles of the law to which your attention must be called. One . of . these is that the burden of proof is upon the prosecution. This imports *824 íhát the government is always under the obligation of proving every fact necessary to substantiate the accusation which, through its time-honored instrumentality, the grand jury, it has preferred against the person accused. This rule is but another illustration of the humanity of American law. It is familiar to all who have taken part in the trial of criminal cases. A proposition equally familiar is the logical sequence to that just stated. It is that the accused is presumed to be innocent until by the submission of proof the jury is satisfied that he is guilty as charged. How simple and yet how sovereign are these safeguards of liberty. But the law is not framed exclusively for the protection of the accused. It has regard, also, to the interest of society as well. It follows that while the- burden of proof is on the prosecution, and while the accused is presumed to be innocent, yet when the weight of evidence, considered as a whole, satisfies the jury beyond a reasonable doubt that the charge is true, the presumption ,of innocence is destroyed, and, in those fortunate communities where the laws are observed, a conviction is at once the logical and legal result.

It is important that you should clearly understand the term “reasonable doubt.” It does not import a mere possible doubt, because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. A reasonable doubt is that state of the case, which, after' the entire comparison and consideration of all the evidence, leaves the minds of the jurors in such a condition that they cannot say they feel an abiding • conviction, to a moral certainty, of the truth of the charge. By “reasonable doubt” is not meant a strained or whimsical conjecture, but an actual, sincere, mental hésitation caused either by insufficient evidence or by unsatisfactory evidence.

The term “evidence” includes not only'that offered on the part of the government, but that also offered for the defense. If, then, including the testimony of the accused, who in these courts is permitted to give evidence under oath, upon consideration of all the proof; there is a reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal. There can be, however, no reasonable doubt of a fact or conclusion, if it has been clearly established 'by satisfactory'proof. In this case the evidence has been both direct and circumstantial. “Direct” evidence is that which immediately points to the question at issue. It is positive in its character. It often depends upon the credibility and intelligence of the witnesses who testify to a knowledge of the facts. It may also .be documentary in character. “Indirect” • or “circumstantial” evidence is that which tends to establish the issue only by proof of facts sustaining by their consistency the hypothesis claimed, and from which the jury may infer the fact. “Direct” and “circumstantial” evidence differ merely in their logical relations to the fact in issue. Evidence as to the existence of the fact is ‘ “direct.” “Circumstantial” evidence is composed of facts which raise a -logical inference as to the existence of the ‘fact in issue. A conviction may well be had upon circumstantial evidence; but, to warrant a conviction on evidence of this character, *825 the proven facts must not only be consistent with the hypothesis of guilt, but must do this so- clearly and satisfactorily as to exclude every other reasonable hypothesis save that of guilt.

While the basic principles defining the rights of the accused, and the obligations of the government in criminal cases, are the same in the state as in the United States courts, there is an important difference in the relations of the court and the jury, in the degree of assistance which may be rendered the jury by the court, to which I must call your attention.

The Supreme Court of the United States has declared:

‘•In the courts of the United States, as in those of England, from which our practice was derived, the judge, in submitting a case to a jury [that is, the judge of the United States courts] may, at his discretion, whenever he thinks it necessary to assist them in arriving at a just conclusion, comment upon the evidence. call their attention to parts of it which he thinks important, and expi*ess his opinion upon the facts.”

In another case the rule is more elaborately stated. Referring to the relations of the court and jury in these courts, while declaring that what is said by the court as to the facts is only advisory, and in ro wise intended to fetter the exercise finally of the juror’s own independent judgment, the Supreme Court observed:

“Within these limitations, it is the right and duty of the court to aid them by recalling the testimony to their recollection; by collating its details; by suggesting grounds of preference, where (here is contradiction; by directing their attention to the most important facts; by elucidating the true points of inquiry; by resolving the evidence, however complicated, into its simplest elements, and by showing the bearing of its several parts and’their combined effect, stripped of every consideration which might otherwise mislead or confuse them. How this duty shall be performed depends in every case upon the discretion of the judge. There is none more important resting upon those who preside at jury trials.”

Some practitioners seem to think with the eccentric Horne Tooke, who told Uord Mansfield, before wliom he was being tried, that his Lordship’s only business was to help the tipstaves keep order while the jury tried the case. Some of the states, but not all, deny to the judges the right to assist the jury in finding the facts; hut this practice the Supreme Court of the United States has expressly held has no place in the practice of the United States courts. And said that eminent lawwriter, the late Seymour D. Thompson, in his work on “Charging the Jury”:

“Such a system is scarcely more wise than it would be to select a lawyer, a doctor, a clergyman, a farmer, a merchant, a shoemaker, a blacksmith, a saloonkeeper, a street-car driver, a capitalist; and a barber, constitute them a ship crew, and start them out on a voyage in company with an experienced navigator, who is permitted to give them general instructions on the theory of navigation, but who is prohibited from giving them any positive order how‘ to navigate the ship, and from correcting any blunders they may make in navigating it.”

It must be, however, borne in mind that all the court may feel at liberty to say is said merely to assist, and not to control, you. Yours, under our system, is the absolute right to find the facts for yourselves. The truth has been anchored in our jurisprudence for centuries that *826 12 good men in the jury box are, of all others, the best attainable triors of facts. You must therefore recall the facts for yourselves, and my summation' is merely advisory, to aid you as far as I can. This case has lasted three months. There are multitudes of exhibits, and more that 12,000 pages of evidence, I believe. The effort of the .court, in the limits above stated, to present the salient and what seems the more material facts, may be, in such a case as-this, as it is intended to be serviceable to you in reaching the just and righteous conclusion- which the law and your duty require; but the duty of finding the facts is exclusively your own.

It. is appropriate here to state a settled rule of evidence that previous- intimacy between persons charged with conspiracy is competent and important proof on the trial. “It is usual,” said an eminent writer on the criminal law, “to begin by showing that the defendants all knew each other, and that a certain degree of intimacy, existed between them, so as to show that their conspiring together is not'improbable; and if to this can be added evidence of any consultations or private meetings between them, there is, then, a strong foundation for the evidence to be subsequently given, namely, of the overt acts of each of the defendants, in furtherance of the common design.” Proof of close intimacy would seem especially important if the duties of the parties respectively were intended to be in opposition, and, should the occasion arise, might forbid such intimacy. As 1 remember the evidence, it appears that Lieutenant O. M. Carter, corps of engineers, of the United States army, was assigned to duty under Gen. Gillmore, of the same corps, about August 1, 1884. His duties were connected with the river and harbor improvements made and tp be made by the government of the United States in what is known as the “Savannah District.” The defendants Benjamin D. Greene and John F. Gaynor were engaged in doing river and harbor work in the Savannah district about that time. Subsequently Carter, Greene, and Gaynor became acquainted. Carter, it will be observed, was a trusted officer of the government, a graduate of West Point, and because of proficiency in his studies had been appointed to the corps of engineers. Placed here by the government, for the purpose of guarding its interests, it was his duty to deal at arm’s length with the contractors whose work he was ordered to supervise. His commanding officer, Gen. Gillmore, had his headquarters in New York. Carter was in local charge. His salary was fixed by act of Congress, and paid from the public treasury. It was at. this time $2,208. If he had other means or sources of income at this time, the fact does not appear from the evidence. As early as 1886 evidence is offered to show that a loan of $1,600 was made by Greene, one of the contractors, to Carter, the trusted representative of the government. It amounted to 72 per cent, of the annual salary of this officer. ■ It is true that this loan was afterwards repaid with interest, but whether, as the government contends, intimacy as a matter of fact existed between the engineer officer and the contractors, the jury must determine from this and other proof. The question is not whether any of these suggested projects between Carter and the *827 contractors, if they existed, were in themselves corrupt or criminal. They are offered merely to show intimacy. It need not be criminal intimacy, but this feature of the proof in cases of conspiracy is met, if the mere fact of intimacy is shown.

Among the number of letters from Carter to John F. Caynor is one dated November 2, 1885. It contains this expression:

“If you know of any lumbermen who want to buy pine lands in Georgia, I think I can put you into something paying.”

While stating that he can get a tract of 60,000 acres of virgin yellow pine on the Altamaha river, and has contingent opportunities to get 104,000 acres more, he adds:

“If you know of any one to whom you can sell, or if you are too busy, and will send me the names of big firms who might want to buy, I will attend to the matter myself. It is not yet cold enough to go to work on our protect.”

What that project was, the evidence does not disclose. “So I am looking up pine lands and whooping up the convention.” It was stated in the opening argument of the district attorney that the com vention was to promote large appropriations by Congress for rivers and harbors, and this seems to have been further recognized in the argument on both sides. This was something more than a year after his assignment to duty in this district. At a later period, namely, May 24, 1888, in a letter addressed to “Dear Captain,” signed “O. M. C.,” and indexed in his letterbook under the name B. D. Greene, it appears that the contemplated ventures were not confined to timber lands. After some information about the cost and consumption of gas manufactured by certain companies, we read as follows:

“Be careful about the air jack and not let, any inventor steal our ideas and leave us out. * * * I think we can essay to give him (Minis) one-fourth, and you, John and I to take one-fourth each, if it comes to anything. Keep a record of the expense, and we will share that, anyway, but above all things don’t let some one steal our thunder, as I believe there is something in it. * * * I have just been offered a chance in a marble quarry which looks well. * * * Do you know whore is the best place to have it tested and its marketable value obtained? * * * If it amounts to anything, of course I want you to go in with me, but say nothing 1o John, as this is another matter. I hoar nothing further about the railroad.”

If by “John” the defendant John F. Gaynor was meant, it was apparently contemplated, it would seem, to let him into a share of the profits on the air jack, but to exclude him from the quarry.

Another letter, dated June 11, 1888, from Carter, indexed as before, “Bear Captain,” is asked:

' “What could you afford to pay for rock delivered to you on the cars at Savannah or at Brunswick (to be used at Fernandina) ? I expect to go to some quarries on the line of the S., F. & W. in about ten days, and they say they will put rock in at Savannah and Brunswick at whatever rates I say. ' Of course, I haven’t seen the quarries yet, but if the rock is good, it will be worth looking into.”

In a letter of August 23d, in the same year, 1888, addressed “Mv Dear Captain,” signed “O. M. C.,” not indexed, after saying, “I had a long talk with Gordon yesterday about the timber question,” that prices had more than doubled within the last two years, he writes: *828 “I saw Huestead about the marble, and he says that he learns that a very badly shattered specimen was shipped to New York. Don't fail to see Clay,” he writes, “the next time you go to town, as Minis is very anxious, and I think more than ever there is something in it.” •He. adds: “I have had Oconee and Ocmulgee transferred to me. Craighill is in California.” The Oconee and Ocmulgee are Georgia rivers upon which improvements were contemplated, and Craighill was Carter’s commanding officer, who, it afterwards appears, was under duty to visit and inspect the work in his local charge.

Again, on September 1, 1888, the letter books disclose a communication to “Dear Captain,” from “O. M. C.,” relative to a lease of quarry lands at Rome. “I have many things to talk to you about,” is ■Written. “I have also my eye on some coal lands near Birmingham.”

Again, on September 23, 1888, from the same to the same, it is stated:

“There may be some delay in getting out specifications for worts, as everything goes to Craighill, and he is away a great part of the time. 'Wlill send as soon as they ¿re out. A paving company has just been organized here that I can get 50 shares in. I have nothing to invest just now, as my money is tied up at home, but I thought you and John might like to take $1,250 or $2,500 worth of-stock. Let me know if you wish to venture in it. By the wáy, I' think I can get the Central Railroad to agree to deliver from 500 to 1,000 tons of granite at their wharves daily at from $1.50 to $1.70 per ton. I sincerely hope the Chili scheme is not a paper one only. It looks too bright to last.”

The jury may consider this as throwing light on the question whether or not Carter was interested in the Chili scheme.

From the same to the same, November 22, 1888, this again treats of the pnuematic jack, also scheme for tying cotton, a visit from a Mr. Clay, and- states:

“I told him that I wished you, Gaynor, Minis with me in the jack, but only ■you, Gaynor, himself and myself in the cotton tying business. Whatever yoii do, I shall- be satisfied with, but my suggestion is that you, Gaynor, Minis, 'Clay and I shall, each have a one-fifth interest in the jack [in the other you. Gaynor, Clay and I have one-fourth], I think we have a thing which is worth millions, the best thing since the air brake. Whatever the Chili .business comes to, this appears to be certain.”

Again, you may consider if the Chilian project was in part Carter's or was it true, as Greene testified, that Carter had nothing to do with it?

“Minis just this moment came in. He thinks he ought to have one-fourth, and that you and Gaynor ought not to want as much as he. But I explained Gaynor’s value in labor troubles, and so forth, and he acquiesced in my opinion.”

From the same to the same, May 26, 1889, the ventures multipl.

“Yours of 24th received. I saw Shepard and gave him the specimens . collected. Prom his partial tests he was very enthusiastic, saying I had the most valuable thing in the country,' that it would make all connected with-It. rich, that he wanted to go in, and so forth. * * * I saw Gordon yesterday and told him I wished the same parties as before, namely, you, .John, Comer, himself and myself in it. He objected, said he wished to share equally with me, but did not wish to admit others, and so forth; said this *829 was a new deal, and so forth. It was much as I had anticipated, but, of course, John and I go in on my share, which may amount to something. * * * Shall you he here within a week? If not, can you manage to let me have $2,000, if 1 should need it? I don’t want to be frozen out of a good thing. Gaynor is not here, and I have not seen him in some days.”

In a letter from Carter to Gen. Dunne, April 10, 1888, reference is made to Gen. Gillmore’s death, and the writer states that he has had local charge of Savannah Harbor, Cumberland Sound, Brunswick Harbor, Altamalia and Savannah rivers, and Fts. Clinch, Oglethorpe, and Pulaski, and:

“I should he very glad if I could he retained here and put in charge of them. ⅜ * * i should he very glad to have the command as indicated.”

There is other evidence upon which the government relies to show intimacy between Carter, Greene, and, apparently, Gaynor also. It appears from the evidence that a Mr. Curtis, now dead, who was an inspector on the works under Carter, reported that Greene and Gay-nor had attempted to bribe him. As representing the government, it was obviously the duty of Carter to investigate, and report upon, this charge. On the contrary, it appears that on June (>, 1889, he, wired Greene in New York as follows:

“General Alexander desires me to ask you to telegraph Hie Morning News at once, the following statement over your signature: ‘The affidavit of Mr. Curtis, so far as it alleges an attempt upon my part to bribe him, and so far as it relates to statements said to have been made by me, reflecting in any manner whatever upon Lieutenant Carter, is false in every particular. An affidavit to this effect will follow in due timo.’ ”

It will lie observed that this embodies the telegram which Carter states that Gen. Alexander desired Greene to send to the Morning News. What Greene did in response to this'telegraphic appeal does not fully appear, except from his testimony. This is followed by another telegram from Carter to Greene, dated the same day, giving the affidavit of Curtis to which the first telegram related. The affidavit of Curtis is set out as follows:

“In February, B. D. Greene renewed the above proposition of Gaynor, stating that he would add to my salary $500 per month, and would get Bieutenant Carter to increase said salary. He said it was in his power to secure my appointment, and that he had also the power to have Lieutenant Carter remove any obnoxious inspector, instancing Insjieetor G. W. Brown, who was removed to BVrnandina in 1880, and stating that Brown’s successor was worth to him $60 per day.”

This is followed by a letter from Carter to Greene of the same date, which reads as follows:

“Dear Greene: It is absolutely necessary that you send affidavit as I requested. * * * Do not fail to insert in the affidavit each and every statement that I have made. * * * John's affidavit, so far as it relates to him, will be ready.”

In this is inclosed a copy of the proposed affidavit.

From this correspondence, as far as stated, the jury may be able to determine the character of the relations which existed between the engineer officer in charge of the government’s interests, and the contractors engaged in government work, to he paid for by the check *830 of this officer from moneys appropriated by Congress. If Curtis charged a contractor with an attempt to bribe an inspector, it was the engineer’s business to investigate, to press the inquiry, and ascertain the truth. If, to the contrary, he is found conducting the defense, it is material for the jury, as illustrating the relations of the parties. Carter states that Gaynor’s affidavit “will be ready.” Now, this evidence is not offered to show that Curtis’ charges were true, nor that Greene had-made a corrupt agreement with him. The truth of Curtis’ charge is aside from the question of the relevancy of this evidence. The material fact is that Curtis made a charge against the contractor, and the engineer officer at once proceeded to prepare the contractor’s defense. And all of this is offered merely to show strong and close intimacy between Carter and the contractor.

It appears that many ventures were contemplated or suggested, in yellow pine, in the air jack, in marble quarries, in rock quarries, in coal lands near Birmingham, in a paving company in Savannah, in a scheme for tying cotton, in some discovery, the nature of which the letters do not disclose, but “the most valuable thing in the country which would make all connected rich.” A contingent application for another loan of $2,000 is made. Carter informs Greene that the general in command, or division engineer, is in California; that he will let him have specifications as soon as possible, and on Gen. Gill-more’s death makes application to be retained in local charge in this district. More than one reference was made to the Chili scheme. This you may deem to be sufficiently developed in a letter from Greene to Carter, October 25, 1888. Carter’s letters to Greene, have been addressed/as you perceive, “Dear Captain”; Greene’s letter to him is addressed “Dear Carter,” and the letter is as follows:

“John goes to Chili on' Thursday. * * * About six months from now $6,000,000 harbor work is coming up in Chili, and all have assurance of our ability to get it. * * * John goes down on the ship with the general manager of the syndicate, so you see our show seems good. * * * Now, I want to do up Charleston, Savannah and Nernandina, by July 1st, next, so that we can go down by that time, if not before. * * * This, I think, is the chance of our lives. Now, let that dredging, so John and I can sell out our stock, and hurry up the two works all you can, so that we can get going by New Tear’s. This is important. This Chili business is business, and I think within ninety days we shall be into that tunnel. What do you think of this? Of course, the scheme I outlined when I first wrote you about Chili a month or more ago. will be carried out, and a year hence will find us both struggling with the Spanish lingo.”

This is signed “B. D. G.” Greene testifies that Carter had nothing to do with this matter. In.view of this statement, and on the evidence of these letters, the jury will find the fact as it exists.

In this epistolary correspondence, Mr. John F. Gaynor for the first time appears. It is April 28, 1889. His letter is written, not to Carter, but to Greene. “Friend Greene,” he writes “I saw General Fields today. He goes to Chili Wednesday. He says the President of Chili cabled him to be there by the first of June, and so forth. He says that the arrangements he made with us in regard to the harbor- work he stands by and it is a go.”

*831 The correspondents seem next to be engaged in projects nearer home. On January 22, 1891, B. D. Greene writes to Carter in New York as follows:

“He [Mr. Richardson] says lie knows they are going to build soon. * * * Would it not be well for Mr. W. to write a line to O. V. and ask him about it, saying that he had a group of friends who wished to make a proposal when the time came?"

He adds in a postscript:

“I shall be back here on February 20, and we can see if anything can •then be done about the Utica business.”

“Mr. W.,” we are informed, is Mr. Westcott; “C. V.,” Cornelius Vanderbilt. Who composed the “group of friends” may be a matter of legitimate inference by the jury.

Two months later, March 27, 1891, Carter himself writes to E. V. Rossiter, Grand Central Depot, New York, refers to contract for Herkimer-Poland Extension, and remarks: “I regret exceedingly that I had no opportunity to submit a proposition for that work.” Subsequently he wrote a letter to Dr. E. S. Webb, president Wagner Palace Car Company, refers to extension of Adirondack Railroad to 1'upper Take, and states:

“My associates and myself are in a position to begin work at once; to rake a contract for any amount of work and carry the same forward to your entire satisfaction.”

Who were his “associates” the jury will determine.

To Walter Katter, chief engineer of the New York Central & Hudson River Railroad, he writes asking to be informed when certain proposed Buffalo work would come up. To C. P. Bassett, Newark, March 30, 1891, he writes asking when proposals in connection with work in connection with water supply, sewerage, and drainage of Orange would be opened. To A. M. Newton, New York, he writes:

“I gave a letter to Captain Greene for you which explains itself. I have written Doctor Seward that you would come to Orange,” and so forth.

In connection with all this correspondence to which Carter and Greene were parties, the stock certificate book of the Empire Construction Company was put in evidence. It was found in Carter’s file case, among his papers, and was preserved by government authorities in box marked “B 31.” It shows certificates of stock issued to John E. Gaynor and Edward H. Gaynor. The name “B. D. Greene, President,” is signed to some of the certificates. In the back is a certificate certifying that -— is the owner of 1980 shares of the capital stock of the company. The certificate is signed by B. D. Greene. The first certificate was issued to B. D. Greene for 1980 shares. Across this is written: “Canceled. B. D. Greene, President.” Since it is true, as a matter of law, that a transfer in blank by the president of a company made this stock available for the benefit of its possessor, the jury will determine whether or not this transfer, taken in connection with the fact that the stock was found in Carter’s file case, is sufficient evidence that he had an interest in it. It otherwise appears from the evidence that this Empire Construction Company subsequently obtained the contract for sewerage, etc., at Orange.

*832 All of this may be considered by the jury, whose duty it is to determine whether it discloses a state of intimacy in projects, particularly of a financial character, between Carter and Greene and Gay-nor. These incidents are not offered singly and alone to show that the charges are true, but, as is usually necessary in cases of this character, to show the one ground of the charge, namely, close intimacy and association.

The jury will bear in mind that the ventures suggested involve the air jack, marble quarries, stone quarries, the cotton tying scheme, the “most valuable discovery in the country,” coal lands — did not apparently involve the business of contracting. And the New York contract follows — or correspondence aboirt the New York contract follows : It should also be noted that after this time the correspondence apparently relates to attempts to secure contracts, and, finally, to contracting itself.

This is the evidence the government offers to establish relations of intimacy between Greene and Gaynor, the contractors, and Carter, the engineer officer, beginning as early as 1885, soon after the latter was assigned to duty in the Savannah district, and continuing to 1891. Upon the subject of intimacy the evidence of the defendants is silent, save the testimony of Greene himself. He testified there was no particular intimacy between himself and Carter, and that he did not see him frequently. To this testimony of the defendant you will give such weight as you think under all the circumstances it deserves. Legitimate inferences to be drawn from the correspondence which I have summarized, and other evidence involved in or relating thereto, are competent for the jury- to make. To some extent the relations of the parties are traced to 1891, and in this year the government charges that the scheme to defraud the United States, in which it is alleged the defendants and Carter participated, was formed. This is my recollection of the evidence, but the jury must find the fact for themselves.

As heretofore stated, a close intimacy between Carter and the contractors was- not in itself criminal. This is also true with regard to joint ventures or enterprises which they had entered or contemplated. That such ventures, if they existed, were not to be commended under the circumstances, in view of Carter’s position, is another and an entirely different matter. The evidence, however, is highly important, if the government has brought to your attention additional evidence tending to show a corrupt agreement between the engineer officer and the contractors, and other evidence tending to show that their relations culminated in the scheme and conspiracy for which tjrey stand indicted. It is therefore not proper for the jury to segregate each element of proof from the others. By this course, it might be true that a number of transactions, apparently insignificant in themselves, but which, taken all together, indicate a consistent criminal purpose, would be regarded as harmless or noncriminal, yet when considered as an entirety they might afford satisfactory proof of participation in fraud to the extent of the conspiracy charged. It is proper, therefore, that you should consider in connection with the *833 proof of the intimate relations between the parties indicted, if you are satisfied that they were thus intimate, the character of the work in which they were connected, and all the other evidence in the case. In this connection, it will be your duty to consider the various- contracts for jetty construction made from 1884 to 1897, to be performed in the Savannah district. At first, as lieutenant and afterwards as captain, Carter was the engineer in charge of the river and harbor improvements in Georgia, and a portion of Flordia, from August 19, 1884, until July 20, 1897. From 1884 to 1888, his commanding officer in charge of the district, Gen. Q. A. Gillmore, had his headquarters in New York. Gen. Gillmore died early in 1888, and after that time Carter was in complete local charge.

On September 1, 1884, John F. Gaynor appears and enters into a contract with Gen. Q. A. Gillmore. Another contract had been made by Gen. Gillmore with Rara & Ross, but with this Gaynor had no connection. In general, it may be said that the contracts mentioned, and all the others offered in evidence, relate to the construction of jetties, spur-dams, and training walls. This was mainly done by the use of what are called “mattresses,” “fascines,” etc. Also, in general, it may be said that jetties, dams, and similar structures were used for the purpose of controlling the flow of tidal and other streams, so as to restrict the tidal or other current into narrower compass, to thus increase the velocity of the flow to scour and thus deepen and widen the channel, with a view to facilitate commerce on the ocean and interior waterways.

With regard to many of these contracts, there are no charges of fraud, embezzlement, criminal conspiracy, or other unlawful conduct. They are, however, offered for the purpose of showing the prices at which work was let in the Savannah district at different periods, the method of construction, the method of payment, and to portray the general relation of the defendants, particularly those on trial, to the contracts for river and harbor improvements in this district, both before and after the year 1891. They are offered, also, as proof of the scheme alleged to have been concocted in 1891 between the parties indicted. It is insisted by the government that all the contracts in the district let from 1891 to 1896 were pursuant to this scheme, and obtained by the alleged co-conspirators, including the two defendants on trial, or for their benefit. An exception to this was the contract of A. J. Twiggs. A further most important contention is that for the work done under the contracts from 1891 to 1896, except on the contract of Twiggs, disbursing checks amounting in the aggregate to $3,176,908.86, issued and signed by Carter in payment therefor, were divided, primarily, into two parts; one of these was deposited in local banks, and disbursed for payment of the work actually done, and the expenses actually incurred; that the other and much the greater part, which it is contended were the profits,/ was, as a result of the conspiracy charged, carried to New York, and in one way and another described in the evidence, divided between Carter, the engineer of the government, and the contractors, *834 who are the two defendants on trial, B. D. Greene and John P. Gaynor.

The contracts prior to the year 1891, and therefore prior to the date of the scheme alleged, are offered to show, in addition to the purposes above described, the knowledge that Carter, Greene, and Gaynor, as the defendants on trial will for convenience be termed, had of the district, their intimate knowledge of the character of work being done, of the specifications drawn, of the mattresses and other work provided for by the contracts, how the contracts and specifications were fixed so that bidders before the date of the alleged conspiracy would secure the opportunity of fair and competitive bidding. This in connection with proof of subsequent dates is also offered to show that, after the alleged scheme was formed in 1891, there was a marked change in the specifications, and in the manner in which the bids were let, and in which the work was done.

It is not necessary for the court to recount a list of the jetty contracts made in the Savannah district from September 1, 1884, to'October 8,1896. The jury will remember the proof upon which the government relies to satisfy them that the defendants on trial obtained an interest in each and all of these contracts, except those of Lara & Ross and Albert J. Twiggs'. The sole contract in which, according to the contention of the government, the defendants on trial had no interest, was that at and near Augusta, which was accorded to A. J. Twiggs. I do not recall any evidence contradictory of this contention. It will be borne in mind that it is not charged in the indictment that there was any corrupt agreement with relation to the contracts controlled by the defendants on trial anterior to 1891. It is proper that I should advise you that the mere fact that the defendants obtained all of these contracts is not in itself criminal. You should, however, in the opinion of the court, construe the almost unbroken success of these contractors, in obtaining control of contracts of such importance, through a period of time so long, in connection with the existence of the intimate relations between the engineer officer and themselves, if such relations have been satisfactorily established.

In the same connection you will consider the proof offered to show the numerous, mutual, and joint ventures into which it is insisted that the contractors and the engineer entered or attempted to enter; the proof that there was a disposition on the part of this engineer officer to eagerly and rapidly acquire money, and possibly fortune. This too, while in itself not reprehensible,' yet if manifested in a manner which satisfies you that he depended on the co-operation and assistance of the defendants on trial, and if it also appeai-s that they met híá advances and afforded that co-operation, either in the way he suggested or in a more effective way, such evidence as indicating the purposes and motives of the party may become increasingly significant when construed in relation with subsequent proof, if it has been presented; which may be more incriminatory in its character and more distinctly probative of the charges, or either of them, made in the indictment.

*835 Tabular evidence has been afforded you, also, of the size of the contracts let from 1800 to 1890 in the Savannah district, and the period of time in which they were advertised. It was shown that this evidence was compiled from data also submitted to the court and jury and to which reference is made. The table itself is known as Exhibit 361. From this it appears that there are 17 contracts, varying in the amount involved from $10,000 to $8,150,000. It also appears that 10 of the contracts involve less than $50,000 each. Relative to the charge in the indictment of meager and insufficient advertisement, it is proper for the court to direct your attention to a few of the larger contracts.

The contract of November 5, 1890, for improvements in the Savannah Harbor, of which John F. Gaynor was the contractor, involved $235,000. It was advertised in Savannah, in the Morning News, for 21 days; in Charleston, in the News and Courier, 21 days; in the Times-Democrat, New Orleans, 20 days; and in the Engineering News, in the Marine Journal, and in the Scientific American each 16 days.

The contract of October 22, 1892, for jetties, was secured by the Atlantic Contracting Company, for dredgitig by P. Sanford Ross. The work involved in the aggregate, $3,150,000. In Savannah it was advertised in the Morning News 25 days; in the News and Courier, in the Engineering News, in the Times-Union, 21 days; and in the Seaboard, New York, 23 days.

The contract of October 8, 1896, was for jetties and dredging in Savannah Harbor. The first class of work was secured by the Atlantic Contracting Company; the latter by P. Sanford Ross. The amount involved was $1,005,000.

On the same day a contract was let for Cumberland Sound, which was secured by the Atlantic Contracting Company. Tt involved $2,350,000. These last two contracts were advertised in Savannah, in the Morning News, for 22 days; in the Florida Citizen, Jacksonville, for the same time; in the Engineering News, New York, 19 days; in the Marine Journal and in the' Engineering Record, for 17 days each. It may be said generally of all the contracts, from 1890 to 189(5, that the longest period of advertisement was made in the Savannah News for 27 days, and the shortest for 15 days; and the longest in the Engineering News, New York, 23 days, and the shortest, 11 days.

Your attention is called to the act of Congress of August 11, 1888, § 3 (Rev. St. Supp. p. 160), which provides:

“That it shall he the duty of the Secretary of War to apply the money herein or hereafter appropriated for improvements of rivers and harbors, * » ⅞ ⅛ carrying on the various works by contract or otherwise, as may be most economical and advantageous to the government Where said works are done by contract, such contract shall be made after sufficient public advertisement for proposals in such manner and form as the Secretary of War shall prescribe.”

The regulations made by the Secretary of War, and having, with certain restrictions, the effect of law, have been identified in evidence by Maj. Charles McClure. The United States Army Regulations of 1889 (section 602) provides:

“Officers advertising sales of property or for proposals for labor or supplies, will, as a rule, allow thirty days to intervene between the date- of the *836 first publication of the advertisement and the time of sale or date designated for the opening of proposals: A shorter period may be named if the necessities of the service render it advisable, but no period of less than ten days shall be designated except in eases of emergency.”

Section 505, of the regulations of 1895,- has a similar provision: “Advertisements in newspapers announcing sales of property or inviting proposals for furnishing labor or supplies will, as a rule, allow thirty days to intervene between the date of the first publication and date of sale or opening of bids,” with the same provision for a shorter advertisement in certain cases. And section 520 of the same volume provides: “In case of large purchases, a period of thirty or more days should intervene between the date of the first publication and ,of opening proposals.” And of this law and these regulations Carter is charged with a knowledge; this is as matter of law.

As showing the knowledge of Carter, in fact, as to the length of advertisement proper, a letter from him to Gen.’ Craighill, chief of engineers, dated November 4, 1896, is offered. This relates to a contract for the construction of a battery by the Venable Contraction Company. It was necessary to have a wharf constructed before the work could proceed under that contract, and Carter writes, “The delays have been so great that an advertisement of thirty days will retard the work and the battery,” and asks for authority to call for proposals on ten days’ notice. Evidence is also offered to show that while the first appearance of the advertisement, calling for proposals for what is known as the October 8, 1896, contract at Savannah, was on August 17th, the date of the advertisement was June 6th. It otherwise appears that on June 4th Carter forwarded to the chief of engineers the form of advertisement dated as above, with specifications, asking for authority to advertise, etc.; that there was a delay in the matter until about August 15th, but that Carter, because of such delay, did not change the date of the advertisement. On the 15th, Carter, who was in Washington, wired Connolly, his clerk, in Savannah, to advertise all work to be opened September 8th, and that he had specifications. This was followed by another telegram from Carter from New York: “Date all advertisements June 6, but all will be opened September 8th.” Col. Tweedale, chief clerk of the War Department, testified that when an advertisement was submitted to the department it was his duty to examine it, strike out superfluous words, etc., but that the question of date of advertisement does not enter into the consideration of the War Department; that being a matter for the engineer officer to fix, in view of the regulations. That it was the duty, also, of that officer to allow sufficient time for advertisement. Col. Marshal, corps of engineers, U. S. A., testified for the defense that he had advertised, he thought, every length of time from 15 to 60 days;, that he considered the special case and advertised the length of' time he thought would be sufficient for the purpose. Col. J. H. Willard, corps of engineers, U. S. A., testifies that the length of advertisement is determined by the chief of engineers on the recommendation of local engineers; that he had in one case, involving $750,000, advertised 60 days; that he had advertised a dredging contract for 20 days, when $15,000 was *837 involved, and lie was very anxious to get immediate results. Evidence is offered to show that on August 18, 189⅞, the chief of engineers telegraphed Carter to “request authority to advertise for bids,” and that such a letter requesting authority was actually written on August 18th, and form of advertisement inclosed; but that by the direction of Carter botli were dated back to August 17th. As the bids were to be opened on September 17th, a date recommended by Carter, it is insisted that this was an effort on the part of Carter to create the impression that there had been 30 days’ advertisement. The jury will attach such importance to this evidence, if they deem it sufficiently proven, as they think proper. It appears, from all of this evidence, that it was incumbent on the engineer officer to advertise a sufficient length of time to give all persons interested an opportunity to ascertain the date of the opening of bids, to investigate the character of the work to be let, and to make estimate of the bidder’s ability to undertake the contract. If the discretion vested in the engineer officer was exercised in favor of fair and open bidding and wide publicity, as with other engineer officers who have testified, no complaint can be made; but, if he exercised the discretion vested in him with the intent to shut off competition and to aid the defendants in obtaining contracts, then it would be a matter material for the jury to consider with relation to the general intent of the indictments.

A number of engineer officers testified that for the purpose of giving general knowledge, and for informing those likely to bid, they regularly kept in their offices a list of contractors who were in the habit of bidding for government work. To such persons they were in the habit of voluntarily mailing specifications, so soon as the project was determined on. They did not wait for the demand for such specifications. You will inquire if this conduct on the part of many engineer officers was different from that adopted by Carter, and, if you find that such difference existed, you may consider this also in connection with the general charge in the indictment that a part of the alleged scheme between Carter and the defendants on trial was to hold back specifications and make a meager and partial distribution of them, so that other parties would not have an opportunity to compete. It is all a question for the jury.

P. Sanford Ross, Schermerhorn, and others whom you will recall, testified for the defense that they kept informed in various ways of the appropriations made or contemplated by Congress, and kept in touch with proposed contract work. This evidence was to the effect that newspaper advertising was of no great value to such concerns as theirs. This is probably true if such a concern wishes to obtain uninterrupted control of profitable contracts. Advertising in newspapers and scientific publications is, however, the means adopted by the government of reaching possible bidders, and, if the engineer officer corruptly endeavored to limit such method, he is culpable, and if, from all the evidence, the jury is properly satisfied that it was part of the corrupt scheme in the indictment, and involved the defendants on trial, they may give such weight to it as they think proper in determining the truth of the general charges made in the indictment.

*838 It appears that it is the settled practice of the War Department for bids or proposals to be made in triplicate, and a part of each bid or proposal is a copy of the specifications. Prospective bidders, therefore, must have three specifications of the work to bid on. These specifications are printed by the government and furnished to the engineer for distribution; the number of copies desired being requested by the engineer officer. Of the copies furnished, 125 are sent to the chief of engineers for distribution to engineer officers throughout the country.

It is contended by the government that a part of the fraudulent scheme concocted by the defendants was that Carter would keep an accurate list of all applicants for specifications, and that he would in various ways seek to ascertain the names of proposed bidders, and give the knowledge acquired by him to the defendants, and thus enable them the better to put in bids that would be successful, and to discourage and keep off other proposed bidders. In support of this contention, abstracts from the records of the engineer’s office have been offered, together with documents from which the data was obtained. These abstracts give in concise form the names of applicants for specification, number sent, dates, reference to data, and so forth. These lists were made up from the names of persons who actually applied for such specifications, and it does not appear from the evidence that, like the other engineer officers who testified in behalf of the defense, Carter kept lists of contractors to whom he would voluntarily send such information.

. It appears that for the bidding which ripened into the contract of October 22, 1892, known as the “Big Contract,” 250 specifications were requested.' Qf these 125 were forwarded to the chief of engineers. It appears that there were 21 applicants for specifications, and that to 12 of the applicants Carter sent one copy each. The letters inclosing specifications were copied in Carter’s letter-press book, which was in evidence, and it appears that it was the custom of Carter to inform applicants that, if they intended to bid, two other specifications would be sent, and he usually added: “If you do not intend,to bid, please return the inclosed specification.” It does not appear from the evidence either of the engineer officers who testified for the government, or those who testified for the accused, that any of them required the specifications forwarded to an applicant to be returned to the engineer officer in case the applicant did not intend to bid. To 10 of the applicants for the same specifications, Carter sent one full set each. So, as to the Cumberland Sound 1892 contract, there were 10 applicants for specifications. To 9 he sent only one copy each. In the case of the Cumberland Sound 1894 contract, Carter received 13 applications, and to 9 he sent only one copy each. There were 34 applicants for specifications for the work under the October 8, 1896, contract, for Savannah Harbor, and, of these, to 21 were forwarded full sets. This is largely a matter of record. The Court states it; the jury must find the facts for themselves. And, of the 34 applicants for specifications for work under the Cumberland Sound 1896 contract, 19 were sent only one copy each.

*839 Numerous letters were offered relative to applications for specifications. In some of them the applicants state that, owing to shortness of time, bids could not be submitted. Col. Marshall and Col. Quinn, for the defense, both testified that it had been their practice to send one copy of the specifications to applicants, unless they had reason to think the applicants contemplated bidding. It was also testified by some of the witnesses that sometimes applications were made for specifications by contractors or others who wished to furnish some part of the material needed by the successful bidder, and that in such cases one copy was sufficient. It cannot be claimed that this practice of keeping a record of the applications, or the meager and grudging distribution of them, if this existed, is in itself criminal. The queston is: Did Carter make use of this method as an instrumentality of a corrupt scheme to secure all the contracts for the defendants on trial? The jury will remember the testimony of Twiggs, a prospective bidder, but who, for a consideration of $500 and a promise to be allowed to furnish certain stone, had turned over the bid prepared by him to John P. Gaynor. If I recall the testimony correctly, Twiggs was in Savannah at the time of which he spoke. Tie says he asked Gaynor if he was not afraid of some other bid, and told him of one he heard was coming from Augusta; that Gaynor then wrote a note, rang for a boy, and sent the note to some one, and in a very short time he got a reply, which be tore up, and then remarked to Twiggs: “No, there will be no other bids to interfere with it.” Whether this information was obtained from Carter is a matter for the jury to determine under all the circumstances.

The testimony of Agnew is that he visited Carter’s office, and was told by Connolly, Carter’s stenographer and clerk, who was also indicted, but is not on trial, that specifications could only be obtained from Carter in person.

Prank A. D. Hancock testified that he applied for specifications, and Carter inquired if he was a representative, saying he did not give .specifications to representatives. McAlpin & Schley, having obtained a full set of specifications, Carter on September 7th, a day before the opening of bids, wrote to them asking them to return the specifications if they did not desire to bid. W. H. Venable testified that he expected to bid, but did not wish to be known in the matter. That he had a Mr. W. W. Osborne, an attorney, make application to Carter for specifications, and that he failed to get them. The following letter is in evidence:

“Law Offices, Barrow & Osborne, Savannah, September 4, 1896.

“Capt. O. M. Carter Savannah, Ga. — Dear Sir: We have a client who asks us to get from you immediately copies of specifications for the jetty work for Savannah Harbor and Cumberland Harbor. We would like these specifications at once.

“Tory truly yours, Barrow & Osborne.”

The reply of Carter is:

“Replying to your inquiry of the 4th instant, please send to me the name and address of the parties desiring specifications.”

Another letter from Barrow & Osborne gives the name of the applicant as R. A. Johnson, Augusta, Ga. A letter is also introduced *840 from Carter to this supposititious Johnson, who we may presume was the alter ego of Venable, inclosing one copy, stating that, if he desired to bid, two more copies would be sent.

There is also evidence which is offered to show that Carter and the defendants on trial used other methods of shutting off competition.

Hancock, to whom reference has been previously made, testified that he, with McAlpin & Schley, contemplated bidding for work known as contracts of October 8, 1896; that he called on Carter for specifications and had a conversation with him in his private office. Carter asked if he realized the character of the work. Said that ft would require a very expensive outlay. The engineer informed Hancock, according to his statement, that a railroad and trestling would have to be built to the site of the work at Cumberland; that the plant to conduct the work would cost $400,000; and that there would he no .money available for about 12 months, and, to use the language of the witness: “I had better be very careful or my friends might be in trouble.”

In reply to his application for specifications, Carter said 'it was necessary in their system to make some record of the distribution of specifications, as they were limited in the number of them, but that he would mail them.

' Agnew also testified that’after several efforts he obtained specifications ; that these were used by Ross & Co.; that the latter’s bid was sent to him to put in; that on the morning of opening the bids Ed. Gaynor urged him- not to put in bids, and finally offered him $500 not to do so. He further testified that John F. Gaynor urged him to accept the offer, and, I quote his language: “Ed. Gaynor said to me that, if I put in a bid, -it would cause them to lose a great deal of money.” He further testified that, about 10 minutes before 12 on the day of opening bids, “'Ed. Gaynor came in and picked up an envelope off Capt. Carter’s desk and substituted another for it.” The bidders were read out by Carter. They were Ross & Co., Rittenhouse & Moore, and Anson M. Bangs. The latter was the successful bidder.

According to the testimony of Mr. Gleason, the signature of Anson M. Bangs to the proposal for this contract was in the handwriting of Connolly, the stenographer and clerk of Carter; that most of the writing in the body of the proposal was in the handwriting of Connolly; that the signature “W. T. Gaynor,” was in the handwriting of Connolly. This testimony as to these signatures, and that they were in Connolly’s handwriting, was not disputed or denied in any manner. It is important to bear in mind, also, that the evidence .is that, under the contract thus secured, nominally at least by Bangs, the cost of brush mattresses was reduced to 57 cents per square yard. The contract price in the previous contract was $1.05, and in the succeeding contract,1896, $1.10 per square yard. It otherwise appears in the testimony that, while -in the name of Bangs, the defendants on trial were concerned in it. The jury may then justifiably inquire if they were not permitted to underbid not only other bidders, but their own previous bid, in order to control the contracts. And, if they could afford to reduce their bid nearly one-half to prevent competition, the *841 jury may inquire if the government would not have made great saving if competition generally had been permitted.

W. H. Venable? whose depositions were read, testified that he contemplated bidding for work under the 1896 contract; that he called on Capt. Carter and obtained specifications; that Capt. Carter explained the intricacies and difficulties of the work at Savannah and Cumberland; that there was no appropriation available; that the work had to be executed, whether money was forthcoming or not; that the work had to go along in the way set forth in the specifications; that the equipment would cost $400,000; that a tramway had to be built. As Venable was leaving Carter’s office, he met Edward H. Gaynor, and told Gaynor that he expected to bid, but if he could sell stone he preferred not to bid. lie then had a meeting with Greene and John E. Gaynor at the hotel. lie testified that be made a contract with the Atlantic Contracting Company, by John E. Gaynor, president, under which he was to furnish stone to it as contractor. According to this testimony of Venable, John Gaynor then asked him for his bid, which had been prepared; “he wanted to take up those as he had with the others.” The further testimony is that Greene told Venable just after the contract was awarded that he had “prepared a bid of $200,000 less than the one he put in, and had it in his pocket”; that he intended to put that bid in in case “anyone else there, any bidders unknown, had put in a bid.” If this is true, the effect upon the Treasury can be well appreciated.

It is true that the defense called a number of witnesses like P. Sanford Ross, and Schermerhorn, and others, men who had large experience, who protested that there had been no collusion and no difficulty in obtaining adequate information about contracts and specifications. Capt. Greene also denied any collusion on his part, or on the part of Gaynor, or any attempt to suppress competition. Upon all the evidence submitted for the defense upon this, as upon every other point, you should bestow your careful consideration, and bear in mind always that the burden of proof is on the government, and, under the rules previously explained, the jury must find the facts and make their conclusions accordingly.

We take another step forward. This case comprehends incidents running through nearly a quarter of a century, and the jury must bear wdth the court in its attempt to help them, but not to control them. We must listep to and consider with patience and fortitude what are the duties of the engineer officer as shown by the proof.

Maj. Cassius E. Gillette succeeded Carter as engineer officer in the Savannah district. He was sworn as a witness for the government. His testimony is in part devoted to a description of the powers, duties, and discretion of an engineer officer in charge of a district to which he is assigned for the work of improving the rivers and harbors. Erom this testimony, and the testimony of Sterly, and Cooper, of Conant, of Bacon, and of other engineer officers who have been sworn, and also from the law and regulations of the War Department, which have the effect of law, it appears that it is the duty of an engineer officer to propose projects for improvement. This he does in his discretion, but *842 the project requires the approval of his superior officers. It remains, however, for Congress to make appropriations for the performance or execution of the work proposed. Usually a part only of the amount appropriated is immediately available. It then becomes the duty of the engineer officer to submit a project of expenditure of the funds available, to point out the order of construction, and to recommend whether the work by the government is to be done by contract or with hired labor. Here also, subject to the supervision of his superior officers, he has full power and discretion. As the representative of the United States, he controls the money placed to his credit for the payment of contractors. It is his duty to sign disbursing checks for work done or material furnished. Subject also to the approval of his superior officers, he prepares specifications for proposed work, and has power, duty, and discretion in drafting them. This extends to the language used, to the various details, and his also is the duty and discretion to recommend their acceptance. He thus originates the specifications. It is also his duty to draft and suggest forms of advertisements by which notice is given to bidders ; to recommend the newspapers in which they should be inserted, and the length of time the advertisements should run. He designates the time in which the successful bidder will be required to finish the work. It is his duty to see to it that information is given to the public in regard to the proposed works and' contracts. He receives proposals for contracts and recommends their acceptance or rejection. He also appoves or rejects bonds tendered by contractors. His most important duty, perhaps, is the superintendence of' the work done by contractors, and- he is fully responsible therefor. It is his duty to accept it or reject it, accordingly as it is in compliance with the contract and specifications, or otherwise. If the interest of the United States demands it, he has the duty to suggest supplemental contracts and make recommendations concerning them, but these are not effective until they are finally acted upon by the Secretary of War. He has also full power to approve or reject the accounts rendered to him by the contractors for work claimed to be done, accordingly as such accounts are fair and honest, or false and fraudulent; and he is entirely responsible for the payment of money placed to his credit. In the absence of orders from ranking officers to the contrary, he is primarily responsible for all that is done. He is on the ground. He is the active representative of the government. From him the War Department receives the information upon which it acts or asks Congress to act. He must (guard and protect the interests of the United States and see to it that the money appropriated by Congress for the improvement of rivers and harbors of his district are honestly and properly expended for this purpose. To this end, it is his clear duty to endeavor to secure competition for bids for work to be done, and after the contract is secured to require the work to be done in accordance with the specifications, and, when it is completed, it is also his duty to accept it or reject it, accordingly as it is in compliance with the specifications or otherwise.

There is little, if any, dispute about these obligations and duties *843 of tlie engineer officer to the government which has educated and commissioned him, which affords him ample maintenance and thus secures him in the enjoyment of social and official distinction commensurate with the dignity and importance of his trust. It is contended by the government, as we have seen, that so far from fulfilling these duties, the engineer officer subordinated the discretions and powers of his trust to the interests of the contractors, and the mutual greed of the contractors on trial and himself, with the result that large sums which were appropriated for the welfare of the people were diverted to the personal and joint gain of the contractors and himself. In support of this contention, the contracts have been offered and admitted in evidence. They include contracts made by Gen. Gillmore, the predecessor of Carter, the many contracts made by the latter with Greene and Gavnor, and the one contract made with Twiggs. These, as stated, relate in large measure to the construction of jetties, training walls, and similar structures, by the use of mattresses, fascines, and stone. In the contracts entered into from 1881 to 1892, where two designs of mattresses were specified to he put in at the same price, the contractor was given the option of using either. This was largely done when the works were under the control of Gen. Q. A. Gillmore, and for a time after his death while under the control of Carter. It is, however, further contended that beginning with the contract of September It), 1892, Carter changed the specifications and contracts so that three designs of mattresses were specified. These, it is claimed, varied greatly in cost to the contractor, and by the specifications of the engineer officer the option was reserved to use any one of the mattresses he thought proper. How he would exercise this option, it is contended, he withheld from all bidders save the persons indicted with him. By this device it is insisted that all others not a party to the scheme were obliged to make bids at a price sufficient to meet the cost of the most expensive mattress design. It is further contended that, since the alleged conspirators were informed that the engineer would use only the cheapest design, this gave to them the opportunity to underbid all competitors, and while such bid on their part would be a low price for the most expensive design, and therefore, when contrasted with the bids of those not in the secret, would secure the contract, it would be an exorbitant price for the cheapest mattress, which they had been informed would actually be used.

The contract of September 1, 1884, is illustrative of the form used by Gen. Gillmore, who was then in control. The contractor was John F. Gavnor. The contract calls for what is known as the “log and brush” mattress, and for stone with which to sink it. It is the first and one of the simplest forms. Since it is subsequently referred to more than once, it seems proper to describe it. After stating that the work “will consist essentially in building up said dam, wing dams, and training walls, with successive courses composed of log and brush mattresses, overlaid with riprap stone, and putting riprap stone alone upon the works wherever required,” the following description of the mattress is given:

*844 “The mattress is simply a raft of round logs, not less than 12 Inches in average diameter, and not less than 9 inches in diameter at the small end, placed in close contact, side by side, at right angles to the line of the wall or dam, and firmly held by transverse binders spiked or bolted to them. The binders will be smaller logs or poles, not less than five inches in diameter at the small end, and placed not more than eight feet apart, and those on the outside will be close to the ends of the logs. The spaces between the binders will be closely filled up with compact bundles of brush, placed parallel to the loge of the mattress, to such depth as to give a thickness of not less than six inches when compacted in the finished work; secured in place by pole binders, in such manner as the engineer in charge shall approve. The logs and binders used may be of loblolly or other cheap variety of pine, and must be of gentle taper and sufficiently straight, and the brush will be live, hard-wood brush. Logs will not be used that do not fit close enough together to hold the stone safely, even without the aid of brush.”

Bidders were “required to name a price per square yard for mattresses in the work.” The contractor in this case was paid 47 cents per square yard.

The first contract in evidence providing for mattresses of two designs was made by Gen. Gillmore with Lara & Ross, September 27, 1884. One of these is the log and brush mattress described in the previous contract, except the layer of -live wood brush, and is five inches instead of six inches. The second design of the Lara & Ross contract is thus described:

“This mattress will consist of a bottom grillage of poles, of an average diameter of at least six inches, and not less than five inches in diameter at the small end, placed from four to six feet apart between centers, both longitudinally and transversely, and the lower poles will be parallel to the line of the jetty. The spaces between the upper poles of this bottom grillage will be filled in with small poles. Upon this raft will be placed two layers of stout hard-wood brush, crossing each other at right angles, each course to be five inches thick in the finished jetty, to be followed by a top grillage constructed like the one placed at the bottom. The upper layer of brush will be placed at right angles to the line of the jetty. The poles of each grillage will be securely lashed together by suitable wire or rope lashings, and the upper and lower grillages will also be securely lashed together, in such manner as the engineer in charge shall approve, so as to form a strong and compact mattress, not less than 10 inches thick in the finished work, the thickness being estimated between the bottom poles of the upper and the top poles of the lower grillage..”

The model of the pole mattress it known as “No. 4.” In regard to both mattresses, it is stipulated that they “will not be accepted until .properly placed in the work and secured there by a layer of stone.” The contract price for putting in mattresses under this contract was 59 cents per square yard. It is true that with the mattresses under the. Lara & Ross contract the defendants on trial had nothing to do. The designs are proven, however, for the reason that they indicate the character and price of mattresses as used before the changes permitted by Carter, which are alleged to result in mattresses fraudulent in construction and exorbitant in price.

Tracing the history as directed by the evidence of mattresses with two designs, we now find that this was provided for in the contract for work at Cumberland Sound made with Anson M. Bangs, October 29, 1886. The designs are the same as the two set forth in the Lara *845 & Ross specification. The bidder was required to name one price, and, if he received the contract, he had the option as to which design he would use. The price was 47 cents per square yard. This was also true with regard to the contract of W. T. Gaynor entered into January 16, 1889. This was made by Carter. The same two designs are provided for, the same one price, and the design to be used was at the contractor’s option. There the price has reached the figure of 63 cents per square yard.

On November 5, 1890, it is shown by the evidence that John F. Gaynor secured the next contract in which two designs appear. They were identical with the specifications made by Gen. Gillmore in the Rara & Ross contract, except as to the quantity of brush in the first design. They were to be paid for at one price, and which would be put in the works depended on the bidder’s option; that is, the contractor’s option. The contract price was now 85 cents per square yard.

Carter, as it appears from the evidence, was now in full charge. In addition, however, to the two designs mentioned, it is stated in the specifications of this contract that proposals will be received for certain pile work for fascines, and for brush mattresses 15 feet wide, to be placed on the channel side of the training wall. The description is:

“This mattress shall consist of a top and bottom grillage of poles, bound with wire or rope, and filled between with a layer of brush fascines packed closely together. These mattresses must be sunk in proper place and weighted with stone.”

Both the fascines and this type of mattress itself are to be paid for by the cubic yard. A separate bid was asked for fascines. The price was $1.40 per cubic yard for fascines. These fascines had to be made into mattresses when used alongside the training wall.

Another contract in which two designs of mattresses were specified, was that of March 2, 1891, with John F. Gaynor. These designs were again put in at the contractor’s option, and were again bid for at one price. The price was 96 cents per square yard. In the contract of May 4, 1891, again with John F. Gaynor, the same two designs were provided for. These were again to be used at the contractor’s option. The price for each design was the same, and was now 99 cents. In addition to these two designs in the contract of May 4, 1891, a “brush mattress” was described, for which separate bids were-asked. This could be used at the engineer’s option. The price was 97 cents. This “brush mattress” for which separate bids were asked in this contract, as we shall presently see, was in the next and later, contracts, substituted by Carter, for the second design, or “pole mattress,” which had been used from the Rara & Ross contract made by Gen. Gillmore up to that .time in all contracts where two designs of mattresses were called for.

The next contract of this general character is that of September 16, 1892, that is to say, about a year and four months after the last contract, mentioned. It was made between Engineer Officer Carter and Edward H. Gaynor. This contract was made in the year after that in which it is alleged that the scheme to defraud described in the in *846 dictment had been formed. In this contract, in the language of Maj. Gillette, there was a “radical change.” Here for the first time three designs of mattresses were described, and for the first time this statement appears: “Any of the following designs for mattresses may be used at the option of the engineer officer in charge.” Prices were required from bidders “separately for each of the following items: First, mattresses, per square yard; second, riprap stone per cubic yard.”

It follows that separate bids were not required for the separate designs of mattresses, but .the price offered must have been per square yard on each. It follows that there was but one price, and the general bidder could make no estimate of his probable outlay on the contract. The undisclosed option of the engineer to select that design which he ■should direct to be placed in the works effectually forbade that opportunity to the bidder.

An examination of the three mattress designs described in the specifications of the contract of September 16, 1893, will disclose the fact that the first design is in substance the same as the first design in all the contracts we have considered with John F. Gaynor, made by Gen. Gillmore on September 1, 1884, to the contract of September 16, 1893. This difference is, however, notable. In the Gillmore contracts, the layer, of brush on the raft of logs was sometimes five inches and sometimes six inches in the finished work. In the four contracts preceding that under discussion, the evidence is that Carter required this layer to be only four inches. In this and all future mattresses of this design, Carter required the layer of brush in the first design mattresses to be six inches in the finished work.

At this stage of the work we find that the second Gillmore mattress. design, to be bid for at the same price, and put in the work at the contractor’s option, is abandoned by Carter. Now, in the contract of September 16, 1893, he adopts a second design of his own. This is the “brush mattress,” as described in the contract of May 4, 1891, for which a separate bid was asked. Hereafter it will be known as the “second design mattress.” Its description as it appears in the contract of September 16, 1893, the jury will remember. According to the testimony of Maj. Gillette, this mattress will cost about 37y2 cents less per square yard than the first design of log and brush mattress s%t out in the contract. Greene, however, testified that the cost of the mattress, as I understand his -testimony, was about the same.

It is also material that the jury now clearly understand the description of the new third design mattress described in the contract under discussion, namely, that of September 16, 1893. It will be remembered that Maj. Gillette testifies that this design was the cheapest construction of the three. Indeed, he testified that it would cost from 37⅝ to 50 per cent, less than the first design of the same contract. The description is as follows:

“This mattress will consist of a bottom grillage of poles of live saplings of pine or other timber of a kind approved by the engineer officer in charge. The poles must be straight, of a slight taper, of an average diameter of from four to five inches, and not less than three inches at the small end, and must *847 l)o placed from four to eight feet apart between centers, both longitudinally and. transversely and spliced together with long scarf .-joints in a manner satisfactory to the engineer officer in charge. Upon this grillage will be placed a layer of closely compacted fascines surmounted by a top grillage similar in design to the one at the bottom. The poles of each grillage will be securely fastened together by suitable wire or rope lashings, and the upper and lower grillage will be securely fastened together by suitable wire or rope lashings, and the upper and lower grillages will also be securely fastened together in such manner as the engineer officer in charge may approve.”

Elsewhere in this contract is given a description of the fascines to be used, and this I will read, for your consideration:

“All fascines will be made of live brush of cedar, water oak, myrtle, sweet gum, or any oilier variety of wood approved by the engineer officer in charge. The fascines will be from 60 to 100 feet in length, and must be compressed tightly by an approved form of choker, to a diameter of nine inches at intervals of two feet, where they must be bound firmly with wire or tarred rope of approved strength. The brush shall be as straight and well trimmed as can be obtained. The fascines shall be carefully and thoroughly made and handled with care.”

It may be said that this specification affords a description of the fascine required in all of the contracts. It is true that there is some difference in length and other slight variations, but that is the type. This contract was awarded to Edward H. Gaynor. It involved $170,-000, and the price was $1.05 per square yard of mattress. After this Carter let the contract of October 22, 1892, for improving the Savannah Harbor. That is called the ‘'big contract” of 1892. The amount involved in jetty work was about $2,110,869.46. The Atlantic Contracting Company was the successful bidder. He also let to Anson M. Bangs the contract of November 15, 1894, involving $170,000, and for the contract of October 8, 1896, involving $1,050,000 for the improvement of Savannah Harbor, the Atlantic Contracting Company was also the successful bidder. On the same day he let to the same company a contract involving $2,350,000 for the improvement of Cumberland Sound. In all of these contracts it will appear that the same three designs are specified in substantially the same language, save, perhaps, as to the width of the mattresses and the length of the fascines. It also appears that in all of thqse great contracts the three designs of mattresses were bid for at one price, and the option was reserved to the engineer officer to use any design he might select. While carefully preserving this option, it is noteworthy that in all the great contracts just enumerated the engineer selected the third design. Nor should it. be forgotten that in view of much of the evidence it is contended by the government that this is the cheapest design.

There are certain important considerations to which at this stage it seems my duty to invite the attention of the jury. There is absolute unanimity among the engineer witnesses both for the government and for the defense, that the log and brush mattress, that is to say, the first design of these contracts, is not the most effective on an ocean bar or in a silt-bearing stream. The reason given for this is that it is not so flexible as a fascine mattress, and therefore does not adhere so closely to the bottom, that it is heavier, and there is greater sub *848 sidence, nor does it so successfully catch the sand on an ocean bar or the silt of a tidal stream or interior river. Practically all of the engineer officers whose opinion was asked testified that, of the constructions for which specifications were made, it was the most costly. Gillette, as we have seen, says that it cost from 75 to 100 per cent, more that the third design. It is true that Mr. Nicholas, who made mattresses and fascines under several of the contractors, testified that he never saw any difference to speak of in the cost of log mattresses and brush matresses; that the actual labor in making each averaged from 16 to 21 cents per square yard; that this was in addition to the cost of the logs and brush. Col. Quinn was asked if there was any material difference in the cost of designs Nos. 1, 2, and 3. He replied:

“Well, I couldn’t say that. Of course there may be some slight difference. I should think a mat that contains more material would necessarily cost more than the lighter material, but the material is so little in price that the labor involved is of more importance, probably, than the quantity of material.”

If the jury should find that the weight of the testimony is to this effect, and if their practical experience and the examination of the several models of mattress designs should corroborate the testimony of the engineer officers who spoke on this subject, and lead them to the conclusion that the. first design was most expensive to the contractor, they may inquire, “Why was it,”- since Carter did not use it after about 1890, and since veiy few were used by him before that time, that this costfy- design was always inserted in the specifications, as one to which his express, but undisclosed option might extend ? Was it with unlawful intent to prevent competition by calling on all possible contractors to bid in the dark at one price for the construction of either of three designs largely varying in cost to them ? Were the defendants, as a part of this scheme, informed of his purpose to require bids for a costly design and.to use a cheaper design? -Did he intend in this wajr to deter uninformed bidders, and to control the contracts for the defendants, and enable them to secure for the cheapest design, a price equal to the cost of that design which was the most expensive? These are questions for the jury, and mpst be détermined from the evidence.

Was this conduct of the engineer officer done purposely to defraud the government, and for the illegal profits of the defendant on trial, and himself ?

In this connection it is proper to charge you that if you find this conduct, charged by the government, to have been done by its engineer officer, was in fact done, it must be done with the guilty intent charged, and the proof must show this to the degree of satisfaction heretofore defined as requisite, before the jury will be justified in concluding that he is guilty, as charged. It is, besides, true that before the defendants on trial, or' either of them, can be convicted, the proof must show likewise to the satisfaction of the jury, and to the degree heretofore defined, that they participated in the guilty, purpose of the engineer officer. To determine the question of guilty intent and guilty participation involved, the jury must bear in mind the general rules I have given and all the evidence submitted for their consideration.

*849 A convenient method of inquiry for the jury may be to inquire, in the first instance, whether the alleged fraudulent scheme or device described in the indictment, and illustrated by the evidence, as far as we have considered it, is one by which the government could be defrauded, and the alleged co-conspirators, including the defendants on trial, could be profited.

Much has been said about all of this work having been done within the appropriation, but, if the fraud and conspiracy was in fact present, as charged, the contention that no money was expended save that appropriated by Congress is no defense whatever to the charges made. The money, as we have seen, could not be taken from the treasury save by an appropriation. It is none the less the money of the people after it has been thus appropriated. The title to every dollar is in the government of the United States, which is but another name for the people of the United States. The act of appropriation imparts no share of that title to the contractors, until their work is honestly done in accordance with the specifications of their contracts. These funds are appropriated, not only for effective work, but for work reasonably permanent. Nor is it contemplated by Congress that all the money appropriated for particular work should be expended on that work, provided by honest methods it was competent to have the work done for a cost less than the sum total of the appropriation. The balance, after the work is properly done, is the people’s money. Every individual who buys a suit of clothes, a pair of shoes, a blanket, an axe, a saw, a trace chain, a roll of barbed wire, a ball of binding twine, or any of the innumerable manufactured articles of civilized man, in the import tax or duty thereon, pays his share of the sums appropriated by Congress from the treasury of the United States. Should he purchase an alcoholic stimulant, he pays perhaps a greater share. If not collected in this way, the only other alternative would be by direct taxation. The loss of the government, then, is the loss of the people. These propositions are too obvious for elaboration.

In what manner, then, could the government lose by reason of the device charged, if the proof shows it to be true? It is the amount which is actually paid to the contractors through the alleged connivance of the engineer officer above that which would have been paid if the bidders had been given an opportunity to bid on the third design mattress. To determine the saving which might have been made on this ground alone, you should look to the testimony of witnesses as to the relative cost. Take the figures of Maj. Gillette, and the practically equivalent figures of other engineer officers and others as developed for the government. If a given number of square yards of the third, or cheapest, design mattress, after competition, cost the government $1,000, the same number of square yards of the first design, according to Gillette, would cost the government $1,750 to $8,000, if the first design is 7o or 100 per cent, more costly than the third. If by the device described bidders were forced to make bids calculated on the necessity of furnishing the most expensive design, while the government actually received mattresses of the cheapest design, the loss to the government, by want of competition between the bidders *850 for the third design, would be the difference between the cost of the third design and the cost of the first design.

Let us suppose, then, that the government has appropriated a million dollars for the erection of a training wall in the Savannah river. Its engineer officer is its representative, not only to make a project of the improvement, but a project of the expenditure. His is a fiduciary position. His trust is as sacred as that of any other trustee— more sacred, perhaps, in that he has been selected from the people, educated, trained, and sworn for that precise duty. The honesty of the man, the stainless honor of the soldier, and the rare skill of the engineer in the performance of his duty, are the government’s and the people’s right. If, then, in the construction of this work by such a device as that described, by making specifications which would call for the expenditure of a million dollars, if the most costly design of mattress was used, and' at the same time the engineer officer inserts in the specifications a design which he may use at his undisclosed option, if the mattress costs in the aggregate only $500,000, the loss to the government is not only the inferiority and instability in construction of the work, but the difference between $500,000 and $1,000,000, which is $500,000. In addition to this, suppose the third design is better adapted for its purpose than the first design. The loss to the government by compelling all bidders to offer prices equivalent to the value of the first design would have precisely the same effect to the government, for in this case the government would pay $500,000 for the very same work and construction that it paid $1,000,000 for in the other case.

To illustrate it in another way: Suppose the government wishes to erect a public building like that in which we are now convened, and calls for bids separately, for a structure of marble and one of brick. Let us suppose that the brick building is more substantial and valuable for the purposes of the government. The lowest bid for the marble is $100,000, and the lowest bid for the brick building is $50,000. The government can then select which building- it will erect. If it erects the brick building, it gets the best building for $50,000. Suppose, however, bidders are asked to bid at the same price on the two buildings; the representative of the government reserving the option to select, after the bids are received, which it will erect. Bidders may know that the brick building is the better, but they also know that the marble may be selected, and therefore make a bid based on the cost of constructing the marble building, that is, $100,000. If, after the bids are received, the engineer decides to use .the brick building, the contractors received $100,000 for the same building they would have been glad to build for $50,000, if allowed to bid separately.

In addition to the claim of injury to the government, resulting from the alleged device to defeat competition just disclosed, it is contended that by the substitution of the structure known as the “multiple mattress,” or “multiple mat,” for mattresses of the third design, a sum unlawfully and illegitimately great was secured from the government, and that this was divided between Greene, Gaynor, and Carter. It *851 is insisted that this multiple “mat'’ was of much cheaper construction than the third design before described, that it was wholly different from the specifications of the third design, upon which proposals were asked and bids let, that bidders had no opportunity to furnish such a structure.

Mr. Marshal, will you separate those models of fascines and mattresses there so that the jury can look at them as I go along?

The contention is that this was done, not only to secure contracts to Greene and Gaynor, but to secure for them and for Carter a large and unlawful profit.

Is this contention true? Ret us first look to the contract of October 8, 189(5, for Cumberland Sound. Here the contractor was the Atlantic Contracting Company. Here, also, is the stereotyped description of the three designs described in all the contracts since and including that of September 1(5, 1893. Here, also, was the stipulation that they were to be bid for at the same price, and to be used at the engineer’s option. It is expressly stipulated that, at the option of the engineer officer in charge, the first design, the second design, and the third design may be used. The third design is prescribed in the precise language used tor that design in the contract of September 16, 1893, which has just been read to the jury. Nothing whatever has been said in the specifications or the accompanying text of the contract with reference to the multiple mat, and the term “multiple mat” appears in none of the contracts which are in evidence. In the contract of October 8, 1896, and in all the contracts since January 16, 1893, there are certain general provisions which the jury will bear in mind descriptive of the mattresses and descriptive of the fascines. It appears from (he testimony of Maj. Rees, who was sworn, as a witness for the defense, that he was Carter’s assistant from 1889 till the Spring of 1893. At first, he states, single mattresses were placed in the work and sunk with a load of stone, but in April, 1893, the use of multiple mattresses of about three courses began. The jury may be justified in inquiring if this was not the continuous mat described by Cooper, the assistant engineer who was sworn for the government. The latter testified that, when he returned to the district in August, 1893, work was going oil under the 1892 contract for improving Savannah Harbor, and that the contractors were putting in the third design, to quote his lan-guagtt: “Three at a time in the form of continuous mats, tipping them off of the end of a lighter.”

It was Greene, or some other witness, I am not sure which, who testified that the multiple mat was the result of an evolution, and Cooper states that, after the storm of 1893 had destroyed the plant of the contractors in the Savannah Harbor, they then built mattresses in “an entirely different manner.” From and after the latter part of September mats were built on barges, and it appears that this construction was used in all the jetty contracts after that time. This also appears from the reports in the engineer’s office, and from the payments made thereon. There is evidence to the effect that the multiple mats were not always uniform. Cooper testified that they varied greatly through the contract of 1892. Some of them, he said, had more poles *852 than others, some less, but the general average was to have a complete grillage on the bottom and then on top of the mattress. “On the top of the bottom grillage you would have a layer of bundles of brush. These bundles were in nearly all cases about 15 or 16 feet long, and, when the mats were longer than that, they would be placed end to end to make a tier across the mats.” That is true of the contracts at Savannah in 1892 and 1896. As stated by -this witness, his duties were performed on the Savannah contracts. A fuller description, as appears from the evidence, is, first, that there was a full grillage of poles such as that described for the third design, then a layer of bundles of brush or fascines, then a half grillage or one layer of poles, then another layer of bundles of brush or fascines, then another half gril-lage or one layer of poles, and so forth, until the top is reached, when there is a full grillage of .poles, as in the third design. The several grillages and half grillages, of course, are wired or lashed together. In this way a multiple mat of several courses was built on a barge. This was towed to the works and slid off into the water. Stone from an adjacent barge was then thrown on top of the top course until the whole mattress was sunk. Sometimes there was what is known as a “step”; that is, several of the bottom courses were wider than the courses on top. Wherever this step occurred, it seems there was always placed a full grillage of poles.

It is further in evidence that each course of the multiple mattress was treated by Carter as a complete third design mattress and paid for by the square yard as such. This is not disputed or denied by the evidence. For instance, a multiple mat of eight mattresses of the third design, like that next to Mr. Reporter. The fact last stated, in connection with other evidence, is of first importance in the determination of the issues framed upon those indictments, if the jury find it to be true. Reference to the description of the third design mattress, specifications of which were to inform all bidders before their contracts were made, and to guide them thereafter, disclose a very different structure from this multiple mat, the use of which it is not disputed the engineer.officer permitted.

Wherever clear and unambiguous, these contracts in writing or printing are matters for the construction of the court. If uncertain or ambiguous, proof may be offered to explain the ambiguity, and then the question falls within the province of the jury. No ambiguity has been pointed out, and none exists in these specifications. There is no contention on the part of the defendants that any ambiguity exists. It is true that evidence has been offered to the effect that these specifications permit the use of the multiple mats as described in the evidence; but, in view of the plain, explicit, and determinate character of the contract, the court is obliged to instruct you that, however sincere such witnesses may be, such evidence cannot be accepted by the jury to vary, change, or alter the terms of the written contract.

It is, moreover, true that even if it were true that the multiple mat was permissible under these specifications, if Carter continuously advertised for bids, specifying.three other designs, one of which was of higher cost than the multiple mat, and did not mention the multiple *853 mat in his specifications, yet always, under the alleged fraudulent scheme described in the indictments, while publicly claiming his option to use the third design, actually used the cheaper structure for the benefit of particular contractors with whom he had an unlawful and corrupt agreement to make an illegitimate profit out of the government, it would make no difference so far as such joint action was concerned whether or not these witnesses were right in their view that it was permissible to use the multiple mat in lieu of the third design.

While it is true, and while you are bound to accept the instruction of the court as a matter of law that the multiple mat was not a compliance with the third design of the specifications, you are, however, at entire liberty to consider evidence on this subject to determine whether or not Carter and the defendants on trial in adopting the multiple mat acted with guilty intent as charged, and with the intention of diverting the funds with which he was intrusted to their joint personal gain. The presence or absence of guilty intent is the supreme test, the pivot upon which this case will turn.

Did Carter, then, without: gain to himself, and not in collusion with the contractor, in good faith believe that he had the right to p,ut in the multiple mat, that it was beneficial to the government, he could have done so without criminality on his part, although his construction of the contract and his estimate of the

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