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the signatures of Bangs, and another necessary signature, are in the handwriting of Connolly. There is no denial of this evidence. It is also charged that Carter did knowingly cause such documents thus fraudulently prepared to be forwarded to the War Department of the United States for approval. The jury will recall the letters written by Carter under date of March 17th; one to the chief of engineers, stating that he inclosed for approval the supplemental contract proposed; and another letter to John F. Gaynor, New York, asking him to sign the supplemental contract, and take it to the War Department. It is contended that Gaynor was in Washington at that time. They will further consider the letter from the chief of engineers, acknowledging that the proposed supplemental contract had been received, and stating that it could not be approved.
If the jury are satisfied that the conspiracy is proved, as charged, and that the facts just enumerated are true, they may, if they think proper, regard this evidence as proof of an overt act; that is to say, of an act on the part of one of the co-conspirators to carry the conspiracy into effect.
The same alleged overt act is set out as done to effect the object of the conspiracy charged in the first count of indictment No. 371, and also in the third count of this same indictinent.
In the third count of indictment 322, it is charged, as an overt act done to effect the object of the conspiracy, that on the 1st day of July, 1897, the alleged co-conspirators, all of them, did cause to be presented to Oberlin M. Carter, an officer in the military service of the United States, a claim against the United States which they then and there well knew to be fraudulent. This is fully set out in the analysis of the indictment hereinbefore given. The claim is for $32,811.42, and is for labor and material furnished during the months of January, 1897, under contract of October 8, 1896, on work of improving harbor at Savannah. It is evidence that while the work under this contract was in progress, no money was available from January 1st to July 1, 1897, and that on the last-named date claims were rendered to the Engineer Department for work done each month. The testimony is that the name, “Edward H. Gaynor,” signed to the claim, is in the handwriting of Connolly. It appears that the claim was approved by Capt. Carter, and that it was paid in the check for $230,749.90 early in July. There is no evidence to contradict the proof that the name Edward H. Gaynor was signed in the handwriting of Connolly. To determine whether this claim was fraudulent, and whether it was presented to Carter, in pursuance of the alleged conspiracy, the jury will look to all the evidence under the rules heretofore explained. The record of the engineer's office offers official evidence that it was in fact presented. The same overt act is charged as having been committed to effect the object of the conspiracy charged in the first count of indictment 371.
As an overt act in pursuance of the conspiracy charged in the first count of indictment No. 322, it is charged in the fourth count that Carter, on the 6th day of July, 1897, signed a check to the Atlantic Contracting Company, for $315,000, and delivered it to John F. Gay
in payment of a claim for work said to have been done under the contract of October 8, 1896, for improving Cumberland Sound, which claim Carter knew to be fraudulent. Sterly testified that Carter left Savannah for Washington on June 30, 1897, and did not return to Savannah until July Yth. The alleged fraudulent claim of $315,000 was paid by check No. 270,537, dated July 6, 1897, on the Assistant Treasurer of the United States, New York. The amount and number of the check was entered on the voucher by Sterly before Carter came back, and after Carter returned the date of the check was added. When Carter left Savannah he took two blank checks with him, one for $345,000 filled out complete, except the date. The check was filled out by Carter, and Sterly made the entry on the voucher and on thė stub. Mr. Marlor, Deputy Assistant Treasurer of the United States, testified to the payment of this check by the Subtreasury, and, as to the indorsement thereon, “Atlantic Contracting Company, John F. Gaynor, President,” and “For Deposit, B. D. Greene.” To determine whether this check was givin in payment of a fraudulent claim, as charged, the jury will consider all the evidence.
In the eighth count of this indictment this is also charged as an overt act done in pursuance of the conspiracy charged in the sixth count of this indictment. The same overt act is charged as done to effect the object of the conspiracy charged in the second count of indictment No. 371. It is for the jury, if they are satisfied the conspiracy has been proven, to determine from the evidence whether the preparation and presentation of this check for the work at Cumberland Sound, in the manner described in the indictment, was an act done by one of the conspirators to carry the conspiracy into effect. The question is exclusively for the jury and should be determined in view of the general rules the court defined in the outset of these instructions.
The next overt act charged as done in pursuance of the conspiracy, set out in the first count of indictment No. 322, appears in the fifth count. It is there charged that Carter, as engineer officer, issued to the Atlantic Contracting Company a check for $230,749.90, in payment of an alleged fraudulent claim, for work claimed to have been done by the Atlantic Contracting Company, under contract of October 8, 1896, for improving Savannah Harbor, and that Carter knew said claim to be false. This check is similar to the one for $315,000 just referred to. It is dated July 6, 1897, and has been read to the jury heretofore. Sterly testifies that when Carter went to Washington on June 30, 1897, he carried two blank checks; one was for the purpose of paying this claim, but the amount of the monthly reports could not be ascertained when Carter left, and, according to the testimony of Sterly, the latter, under the instructions of Carter wired him at Washington on July 1st, the amount of the aggregate of the vouchers, or $230,749.97. The vouchers were not marked approved by Carter until after he returned on July 7, 1897. Mr. Marlor testified that this check was paid through the Subtreasury, and that it was indorsed precisely as the check for $345,000, just described. This, if true, connects all three of these alleged conspirators with
this check, and it is for the jury to determine whether the preparation, carrying, and deposit of the check, and the collection of the money thereon, were acts done by one or more, or all of the alleged conspirators to effect the object of the conspiracy, if they believe such conspiracy has, in fact, been proven.
The same overt act is charged as one to effect the object of the conspiracy alleged in the second count of indictment 371, and the instructions just given the jury may regard as appropriate to that also.
The seventh count charges as an overt act, done in pursuance of the conspiracy alleged in the sixth count of indictment No. 322, that the defendants, on the 1st day of July, 1897, caused to be presented to Carter, as engineer officer, for approval and payment, a claim against the United States for labor, material, and supplies claimed to have been furnished for work in improving Cumberland Sound, under contract of October 8, 1896; and that the defendants well knew the claim to be fraudulent. It is for the jury to determine whether this claim was fraudulent, and whether it was presented to Carter for approval and payment. The jury will recall the evidence on this subject relative to the approval of the claim, and the issuance of a check by Carter for $375,000 to pay it.
The same overt act is charged in the third count of indictment No. 371.
As another overt act done to effect the object of the conspiracy charged in the fourth count of indictment 371, it is alleged that the defendants, on the 1st day of July, 1897, caused to be presented to Carter, as engineer officer, for approval and payment, a false and fraudulent claim. The particulars wherein said claim is alleged to be fraudulent are set out in the count. This claim is in evidence. It is for the jury to determine from all the evidence whether this claim was fraudulent, and whether it was presented to effect the object of the conspiracy charged, if they believe such conspiracy has been proven.
The fifth and sixth counts of this indictment have already been described. They do not charge conspiracy, but charge that the defendants caused to be presented to Carter, as engineer officer, for approval and payment certain fraudulent claims set out in the counts named. The particulars in which the claims are alleged to be false and fraudu-lent are enumerated. The jury will determine from all the evidence heretofore given under the rules whether the claim set out in either or both counts was false and fraudulent for approval and payment with the guilty intent charged in the counts.
The indictment for embezzlement has been analyzed and described by the court. The jury have heard the evidence relating thereto. Much of the evidence which the court has recounted applies to the charges made in this indictment.
The jury will remember the evidence about the issue and payment of the checks for $325,000, and $230,749.90, the proceeds of which it is charged have been embezzled. The court has called your attention heretofore to the testimony of Sterly, as to the manner in which the checks were made out, and as to Carter's leaving Savannah on June
30, 1897, with two blank checks. Attention has also been called to the testimony of Mr. Marlor as to the payment of the checks, and their indorsement. In addition to what I have already said as to the law upon this subject, in view of certain evidence, I will further state: It is not only the payment of the money by check, but the issue of the check and the application of the payment to the claim, which, according to the evidence was done in this district, which constitutes embezzlement provided the essentials of embezzlement are also shown. If the act was partly done in this district, and partly in another, it is prosecutable in this district as if committed wholly in this district. Embezzlement, when committed by a series of connected transactions from day to day, may be alleged as of a single day where the facts are shown in evidence. The application of the money to the claim, coupled with the payment and withdrawal of the funds by checks, constitutes embezzlement, if the facts otherwise show that it is embezzlement.
It is further insisted by the government that when the charges set forth in these indictments, substantially as stated, except the indictment for embezzlement which was returned afterwards, were made against the defendants on trial, that they took refuge in flight. This is urged as evidence of their guilt. Now, there is a popular conception that when a man runs away from a criminal charge that it is conclusive evidence of his guilt. This, however, is not the law. Before it can be considered as evidence, the jury must be satisfied that the defendants fled. To determine this you may look to all the evidence in the case, and to the evidence of Greene himself. These remarks relate to the departure of these parties to His Britannic Majesty's Dominion of Canada. It is always competent to prove the flight of the accused as having a tendency to establish guilt. It is, however, not conclusive. It is always a fact of importance to take into consideration, and combined with other facts may sometimes afford strong evidence of guilt. It does not, however, raise a legal presumption that the accused is guilty. It is merely a circumstance, tending, if not sufficiently explained, to increase the probability of the defendant's being the guilty person, which on sound principles is to be weighed by the jury like any other evidentiary circumstances. I think it justifiable to state, also, that, in each case where fight is relied on as evidence of guilt, it is competent for the jury to take all the circumstances into consideration. If, for instance, the person accused of crime is youthful, uninformed, helpless, without means or counsel to defend himself, these and similar facts are matters which the jury may consider and which might tend to reduce the evidentiary effect of flight under the circumstances to show guilt. In cases where the defendant is a man of experience, clear intelligence, and has ample means to make his defense, these facts also may be considered by the jury, and may, if in their judgment it is proper, increase in their minds the evidentiary effect of flight to show guilt. Each case depends upon its own circumstances, and, if there is any case of flight, any explanation of it consistent with the innocence of the accused, he is entitled to the benefit of that explanation. I may add that one indicted in a particular state, or in a particular national ju
(licial district in that state, has no right to justify his flight, upon the ground' that there are other localities in which he would prefer to be tried. The Constitution declares that he shall be tried in the district where the crime was committed, which shall have been previously ascertained by laws, and no man can justify his flight because he objects to a familiar principle of the Constitution of the United States.
We now approach the consideration of a topic which you are instructed, in my opinion, is to be largely considered as the crucial or determining evidence in the case which has engaged us for so long. It is the proof offered by the government to show that the engineer officer placed here to represent the interest of the government, as against the interest or wrongs of the contractors, had been bought by them and seduced from his duty to the government, or voluntarily betrayed it for the benefit of the contractors; that he devoted his acknowledged skill in engineering and the opportunities which had been trusted to him, with the purpose of accumulating through conspiracy with the defendants a fortune from funds to be unlawfully diverted from the appropriation placed to his credit for the purpose of the government work in this district. All of the evidence which I have heretofore recounted, while all material in itself, if accepted by you, as in accordance with the government's contention, is in the main subsidiary to the main question, and that was: Did the engineer officer secure, as charged, a share in the profits of the great improvements in Georgia, undertaken for the welfare of the American people ?
The record contains a vast amount of evidence, some parts of it consisting of minute incidents, others apparently of larger scope and compass. Facts of great significance, in the opinion of the court, relate to the changes in the engineering plan, in the forms of construction, in the comparative volume of material used, in relative expensiveness to the government. Much of this and many other circumstances, I have referred to, and all of it, doubtless, is fresh in your memory, and all you should consider as offered for the prosecution or for the defense. Were the court and jury obliged to take many items of this evidence and consider them singly and alone, without due regard to the correlation in which all evidence must be considered, upon a charge of conspiracy, it would be a judicial duty to instruct you that the defendants were entitled to acquittal, and it would be your duty to acquit. While evidence of this general character is often thus considered and treated in the argument of counsel, this is not permitted to the jury and the court. On the contrary, to quote from an authority cited by General Barr:
"To hold that nothing but positive evidence is sufficient to establish a conspiracy would be to give immunity to one of the most dangerous crimes which infest society. Hence, in order to discover conspirators, we are forced to follow them through all the devious windings in which the natural necessity of avoiding detection teaches men so circumstanced to envelop themselves. It is from the circumstances attending a criminal, or a series of criminal acts, that we are able to become satisfied that they are the results, not merely of individuals, but the products of concerted and associated action."
We must consider it altogether, and if there is found in the great mass one cementing and cohesive force, which binds the evidence to