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had been made, was less than six feet. It is but just to remember, however, that the jetties had not been finally completed. The stone jetties were built under the supervision of Gillette and Bacon, and by Christie, Lowe & Heyworth. The north jetty extended out something less than four miles from the shore. A substructure was placed on the old work, composed of small stone, and this built to a uniform height of five feet below mean low water. On top of that heavy blocks of stone were placed up to the average height of mean high water. It was in evidence at this time that the old work as far as it could be seen by the eye was either rock or sand-rock mostly—and there was some remains of the mattress work to be seen, not very much. There was a considerable amount of the old jetty under water. The south stone jetty extended a distance of 4,000 or 5,000 feet from shore, and was built up to five feet above mean low water. As the result of the building of these jetties, the channel was deepened across the bar from 6 feet to about 24 feet at low water, or from 10 feet to 34 feet at high water.

It is quite important for the jury to consider the difference in the cost of this permanent and effective structure when contrasted with the brush mattress which we have been discussing. The witness Bacon compares the cost as follows: He testifies that the record shows that a single multiple mat, No. 20, put in June 26, 1897, under contract of 1896, contained 4,240 square yards, at contract price, $1.10, cost $1,664; adding to that the cost of stone used for sinking, $473.24, it made a total cost of $5,137.24. Stone jetties having the same size as the eight-course referred to, using first and second-class stone, cost the government under the Christie, Lowe & Heyworth contract $4,713,90; and with third-class stone it would have cost $4,077.40. If the mattress compressed one-third, and there is much evidence on the subject of compression, Bacon says one-third should be taken off for that, making the stone jetty for an equivalent space cost the government $3,142.60, as against the eight-course mattress, $5,137.24, loaded with stone, or $1,664 without the stone. The jury will inquire, then, if it does not appear that the finished stone jetty, effective in its operation and to a large extent enduring in character, did not actually cost less than the foundation brush mattresses put in by Carter and the defendants on trial.

For the brush work done in Cumberland Sound, the evidence discloses that Carter carried in person to New York and delivered one disbursing check which he had signed for $345,000.

Notwithstanding the vast sums disbursed in connection with the improvements in the river and harbor of Savannah, it is not deemed essential to give elaborate instructions regarding that work. An important feature of the evidence is that offered to substantiate the charge that Carter, through connivance, permitted Greene and Gaynor, when they were interested in contracts let by him, to put in a much greater quantity of mattress material than he estimated would be required when specifications were made and bids invited. In this connection it is also proper to consider the evidence tending to show the disproportionate amount of mattresses used compared with dredging and when com

pared with stone. I reier in this to the Greene and Gaynor contracts. This is a matter of record about which there does not appear to be fair dispute.

In the specifications for the contract of October 22, 1892, known as the “big contract” for the Savannah river and harbor improvements, it was stated that approximately 350,000 square yards of mattress would be used, and 7,000,000 cubic yards of dredging would be done. The Atlantic Contracting Company secured the contract for jetty work. Instead of the 350,000 square yards as specified, 1,363,572.26 square yards, or more than three times as much as the specifications called for, were used. For the entire work, including mattresses, stone, piles. fascines, and so forth, the government paid

on that contract the sum of $2,110,869.53, and yet the amount estimated when the bid was accepted was only $1,686,500. Thus it will be seen that the excess of cost over the estimate in that contract alone was $422,139.53. It is also true that the increased amount paid for jetty work decreased the amount paid for dredging, which was done by P. Sanford Ross. The decrease was nearly $450,000. The amount of dredging was therefore a great deal less than the estimated amount. The estimated amount of stone was a great deal more than the stone actually used. It must be understood that the greater part of this large sum was diverted from the dredging contract, and from stone, and was paid for the excess over the estimates of multiple mats, and it was paid like that at Cumberland Sound, on bills presented for the square yards calculated on the several courses of the multiple mats used.

The jury should also remember, in this connection, that Gillette and other engineering witnesses testified strongly as to the great importance of dredging in maintaining the depth of the channel. Col. Quinn testified interestingly on this subject, and stated in effect that the time would come when that, while deepening the channel, much made land would be available for warehouses and the like, and would be created between here and the mouth of the river by dredging with the powerful pumps now in use in the bottom of the channel, and forcing it over the jetties on the marsh, when it would soon assume the form of land, possibly of dry land. The importance of work of this character is, however, sufficiently evidenced by the fact that in this one contract Carter specified for dredging to the extent of 7,000,000 cubic yards.

In the contract of September 16, 1892, at Cumberland Sound, the specifications placed the estimated quantity of mattress to be used at 50,000 square yards. In point of fact, the record evidence is that there were used 107,734.92 square yards. In the contract of November 5, 1894, the estimated quantity is 50,000 square yards of mattresses, and the record evidence shows that 213,334.11 square yards were used, or nearly four times as much. In the specifications for the contract of October 8, 1896, for the Savannah Harbor, it was estimated that 200,000 square yards of mattress would be used. The contract was not completed, but up to July 31, 1897, the evidence of the engineer's record is that 255,820.43 square yards had been used. In the contract of October 8, 1896, Cumberland Sound, the estimated quantity of mattresses was 200,000 square yards. The work was not completed;

146 F.-55

but up to July 31, 1897, according to the same class of evidence, 146,102.41 square yards had been used, or over twice as much as the estimate provided for. Of the five contracts above mentioned, in which this large excess above the estimate of multiple mats were used, the Atlantic Contracting Company obtained three, Edward H. Gaynor one, and John F. Gaynor one. It is not in dispute that Edward H. Gaynor was acting for the defendants on trial, and that Greene and Gaynor, the defendants on trial, were stockholders to a large amount in the Atlantic Contracting Company.

Of all the contracts let in the Georgia district during Carter's command in Georgia, one, a small contract on the upper river, was let to Albert J. Twiggs. With this the defendants had nothing to do. The quantity of fascines estimated in the specifications was 7,500 cubic yards. Here there was no excess of such construction. There were used only 9,232.04 cubic yards. In the same contract the necessary stone was estimated at 4,000 cubic yards, and the amount used was 6,742 cubic yards, or over 50 per cent. more than was estimated. It is proper for the jury to contrast the manner in which this contract was required to be executed, and all the other contracts in which Greene and Gaynor were the successful bidders, and determine after careful consideration of all the evidence whether there was collusion and fraudulent connivance, as charged in the indictment, to injure and shut off other contractors, to benefit the contractors on trial, and further fraudulent purpose to so carry out the contracts as to secure for the defendants on trial the greatest profits at the smallest cost to the contractors and the smallest benefit to the government. If all this was done in good faith, without the corrupt agreement and the corrupt conspiracy charged, there can be no conviction; but, if the evidence as an entirety satisfies the jury to the degree heretofore defined of the truth of the charges made, a conviction will be justified.

There is much conflict in the testimony as to the manner in whichi fascines for mattresses were constructed. This the jury should reconcile as far as possible, and, if it cannot be reconciled, ordinarily they should accept the testimony of that witness or those witnesses who have the best opportunity to know the facts to which they testify and the least inducement from interest or otherwise to testify falsely. The credibility of witnesses is to be always a question for the jury, and they may accord credit where under all the circumstances they think proper.

There are certain general features with regard to the fascines to which I will briefly advert.

It is further contended by the government that, in pursuance of the scheme alleged in the indictment, a change was made by Carter in the method of payment for fascine mattresses, the result of which was to greatly increase the cost to the government and to correspondingly increase the profits to be divided between the alleged conspirators. A. reference to contracts prior to May 4, 1891, will disclose that in addition to the two designs of mattress, known as the “Gillmore design," which Carter continued to use, which were to be paid for by the square yard, that in many contracts fascines were to be furnished and

paid for by the government by the cubic yard. These fascines were sometimes placed in the work singly, and sometimes in the form of mattresses. A mattress of this description would, briefly stated, consist of a bottom grillage of poles, a layer of fascines, and a top grillage of poles; the top and bottom grillages being bound together with wire or rope. The object of the government was to place in the works fascines or brush material, and this, as stated, was paid for by the cubic yard. Gillette testified that the advantage derived by the contractor from putting in a large number of fascines at one time compensated him for the additional expense of making them into mattress form.

It is, moreover, contended that Carter's third design mattress is in all essential particulars the same construction as the fascine mattresses just described, which was paid for by the cubic yard of fascines in it. If this contention be true, and that is for the jury to determine, when Carter specified in the contract of September 16, 1892, his third design mattress, which was to contain one layer of fascines, and be paid for by the square yard of its top surface, the cost to the government of the fascine material in it was greatly increased. To illustrate, in the contract of November 5, 1890, the fascines, or fascine mattresses, were paid for by the cubic yard at $1.40. The thickness of the mattresses were 12 inches. If put in the works in the form of mattresses, it would take three to make a yard in height, and the pay would remain $1.40 per cubic yard. Now in the contract of October 22, 1892, the fascines were only nine inches, one layer was placed in the third design mattress, and the price per square yard was 95 cents. To make a cubic yard, four such mattresses must be used, and the price per cubic yard would be four times 95 cents, or $3.80. That is to say, under the contract of November 5, 1890, the government paid for fascines in the form of mattresses therein described, $1.40 a cubic yard. In the contract of October 22, 1892, the government paid for a cubic yard of fascine in the form of third design mattresses $3.80.

The jury will also inquire if the significance of this contention is not greater when the fascine mattress used prior to 1891 and paid for by the cubic yard is compared with a “course” of the multiple mat paid for by the square yard of its surface. In making this comparison, the jury should bear in mind, however, that the third design mattresses and multiple mats were frequently of greater width, and it may be true that it would cost the contractor more to sink fascines when placed in such large mattresses than to sink them singly, and, in comparing the relative cost, this may be taken into consideration.

Again, in the contract of C. C. Ely, May 31, 1889, for the construction of a retaining wall in Brunswick Harbor, "with brush fascines or mattresses loaded with riprap stone,” where the fascines were to be from 12 to 20 feet long, the contract price for fascines and fascine mattresses was $1.34 per cubic yard. The fascine material in the Cumberland Sound contract, according to evidence which does not seem to be in dispute, cost the government-I mean the contract of October 8, 1896, cost the government_$4.40 per cubic yard; a cubic yard in depth requiring four nine-inch mattresses. To put it the other way: If the mattresses put in under the Ely contract of 1889 had been paid

for by the square yard of the surface of each mattress, as the mattresses at Cumberland in 1896 were, the price estimated on the basis of $1.34 per cubic yard would have amounted to only 44 to 56 cents, while the Cumberland mattresses were paid for at $1.10 per cubic yard. There has been tendered in evidence a compilation, “Cost of fascines or brush mattresses under various contracts in Savannah district, from 1884 to 1897.” This will be before the jury.

The practical inquiry is whether Carter, as a part of the fraudulent scheme alleged, by the use of the third design mattress and of the multiple mat, to be paid for by the square yard, in lieu of fascines and fascine mattresses to be bid for and paid for by the cubic yard, as it is insisted had formerly been done, largely increased the cost of such fascine mattresses to the government, and correspondingly increased the profits to the defendants on trial, and that this was done corruptly and for the purpose of effecting the fraudulent scheme described in the indictment. As stated heretofore in defining the conspiracy charged in this indictment, it is incumbent on the government not only to show that a conspiracy was formed, but that some act was done by some of the conspirators to effect the object of the conspiracy. Several overt acts are charged to have been committed as already described.

In indictment 322, the overt act charged in the second count is that on the 17th day of March, 1897, Michael A. Connolly, one of the defendants and alleged conspirators, but who is not on trial, in pursuance of the conspiracy charged, did assist Oberlin M. Carter in the preparation of a certain document purporting to be articles of agreement between Oberlin M. Carter, corps of engineers, United States army, and the Atlantic Contracting Company, and which purports to modify the contract made on the 8th of October, 1896, for work at Cumberland Sound; and which document purports to be signed by said Carter and by the Atlantic Contracting Company, John F. Gaynor, president, and by William T. Gaynor, secretary. It is charged that said Connolly forged the name "William T. Gaynor, Secretary.” This document is before the jury and may be inspected by them. Mr. Sterly testifies that the name W. T. Gaynor is not in the handwriting of W. T. Gaynor. Mr. Gleason, who testifies that he has been connected with the Southern Bank of the State of Georgia for 23 years, and is now with the Citizens & Southern Bank also states that as receiving and paying teller he had large experience in the comparison of handwriting; that he knew Michael A. Connolly, had seen him write, and, after examining several genuine signatures, testified that the signature “Michael A. Connolly,” as attesting witness, is the genuine handwriting of Connolly; and that the name “W. T. Gaynor" on this document, is in the handwriting of Connolly.

It is further charged that Connolly assisted Carter in the preparation of a document purporting to be dated on the 18th of March, 1897, and purporting to be the written consent of Anson M. Bangs and Eugene Hughes to the agreement; that Connolly forged the names of Bangs and Hughes; and that he also forged the signatures of James C. Bogart and Henry Smith as witnesses. Mr. Gleason testifies that

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