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gether, and calm and impartial consideration makes the finger of justice point unerringly to the guilt of the accused, it is the duty of the upright and conscientious to accord to such evidence the probative effect which the rational, conscientious, and patriotic mind will deem it deserves.
Such, it is insisted by the government, is the proof it offers to show that the engineer officer himself was bought, or sold himself, for a share in the profits in these contracts, made with the values of the people, and for the benefit of the people; that from the slender salary of a subaltern his income and expenditures soon rivaled the
gal and golden youth who spend their substance in riotous living. With no other resources, his outlay from 1890 to 1897, covering the period of these contracts, and the alleged fraudulent scheme and conspiracy, increased from $4,000 in the year 1890, to $28,000 per annum in 1896; and from a condition when his means were so slender that he was compelled to borrow, his accumulations for the same period, invested in gilt-edged securities, to gather and receipt for as his own, in an account, quite if not nearly, a half million dollars. That is the contention of the government. If that is proven, in your opinion, it is evidence of the gravest consideration for the jury, and if they further find, as contended by the government, that this wealth was accumulated because they divided with him the profits of the contract it was his duty to supervise, and they are satisfied of these facts beyond a reasonable doubt, the government has proved its case. Finding these facts to exist in connection with all the other evidence I have recounted, the government has proved its case, and it is entitled to a verdict of conviction against the defendants on trial.
There is no denial that I recall of what may be deemed the astonishing increase in the personal expenditures of the engineer officer, Carter. You may conclude, therefore, that these are shown by incontestable proof. You will look to the evidence to ascertain the sources of the income which was so rapidly increased and so lavishly expended. It does not appear from the evidence that when he assumed command of the Savannah district he had any income in excess of his salary. This, with his commutation in 1890, amounted to $2,208. This was his total income. His personal expenditures that year were $1,306.60. In 1891, his salary and commutation was $2,845.57, his total known income, $2,970.57; his personal expenditures, $5,897.83—or about twice his income. In 1892, his salary and commutation was $3,032. There was now an additional income which the government insists accrued from dividends and interests on investments alleged to have been made with funds arising from the operation of the fraudulent scheme charged in the indictment. This amounted to $1,012.50. His total known income was $4,014.50. His personal expenditures were more than twice as much, namely, $8,354.24. In 1893, his salary had not been increased, but dividends and interest had increased to $6,720, and his total known income was therefore $9,752; and his total expenditures, $14,982.74. In 1894, his salary remained unchanged, his dividends and interest had in
creased from $6,720, to $13,491, his total known income was $15,523.17; his total expenditures now amount to $14,410.88. In 1895, there was no increase in salary, but his dividends, interest, and rents aggregated $27,363.34. His personal expenditures had also increased more than $5,000, but they were now less by more than $7,000 than his income. His outlay was $20,113.92. In 1896 his salary and commutation had increased a little more than $100. It was now about $3,140.88. But this slender pay of an army officer, added to his other sources of income, amounted to $31,458.85. Independent of his salary he now had an income of $28,317.97, and he expended that year, $28,611.67. For four months of 1897 his salary was $1,077.32, his total income for the same period was $10,610.68. At this rate it would have been over $30,000 for the full year. His total expenditures for the four months were $7,566.75. At this rate, had it continued, it would have exceeded the expenditure of the previous year, which was more than $28,000. It will suffice, for the purposes of your duty, for the jury to understand that from 1890 to April, 1897, he had received as salary and commutation for his pay as an army officer a total sum of $21,399.77. This was his pay as an officer. In 1891, his income from interest, dividends, and so forth, amounted to only $125, according to the evidence submitted. To April, 1897, this source of income in the aggregate amounted to $82,844.86. During the same period, his personal expenditures amounted to $104,244.63, or an average for the entire period of about $17,370.77. This estimate of increase in Carter's expenditures is not denied.
What is the probative effects of this evidence? The science of the law and the rules of evidence do not exclude from the province of the jury the power to make those deductions, which the triors, men of practical knowledge, experienced in the affairs of life, would reasonably or obviously make from facts like those just recounted. The obvious inquiry follows, whence came this rapid increase of income? The explanation afforded by the government which it asks the jury to accept, is based upon the following evidence:
When the connection of Carter was severed with the engineer office in Savannah, in an oaken case belonging to the government there was found a large mass of letter-press copy books showing his official and personal correspondence; many stub books, memoranda, and other indicia in the nature of evidence. This was taken charge of by the court-martial. Certain letters of a purely personal character were restored to Carter. The other evidence thus found was regarded as legitimately within the possession of the government to be used for the purposes of enforcing the law against those who, by its alleged violation, it is now insisted, have despoiled the public treasury of large sums. This evidence has been carefully preserved. In no respect is its authority questioned. It was kept under seal, and in the control of trusted officials of the government; brought to this city under like protection, and has been carefully guarded by the custodian appointed by the court for that purpose. It has been open to the inspection of the counsel for the prosecution and for the defense,
and all that seemed pertinent to either has been submitted for the consideration of the jury. It was evidence accumulated and left by Carter himself. In part, from indicia thus furnished, it is contended by the government that it has been enabled to trace the sums paid by the defendants on trial to Carter as his reward for the alleged betrayal of the government in their interest as the result of the conspiracy charged.
An expert accountant, Mr. Johnson, was commissioned by the Treasury Department for the purpose of tracing the public funds thus alleged to have been diverted. A large number of books of certain banks, brokers, and trust companies in New York were examined. They constitute an immense volume of evidence. They are before the court. The statements taken therefrom, and verified by the bank officers, officers of trust companies, and others having knowledge of the books for the purpose of convenience, have been offered in evidence and considered by the court, counsel, and the jury; but the original books and entries are all here and subject to inspection and verification by the parties concerned and their counsel, and by the members of the jury. The expert accountant charged with this important duty has carefully prepared and submitted for the consideration of the jury a series of tabular statements, 32 in number. By these, and by the evidence offered in support of each statement, in the form of checks, bank deposits, and the like, the government contends that it has traced the disbursing checks of the engineer officer, Carter, issued on all the contracts with which the defendants on trial were concerned from 1891, when it is alleged the scheme to defraud was formed, until the alleged final distribution of the alleged illegitimate profits in July, 1897. From the consideration of this evidence, thus tabulated for convenience and clearness of reason, it is also contended that the jury must draw the conclusion that such profits were divided between Benjamin D. Greene, John F. Gaynor, the defendants on trial, and Oberlin M. Carter. It is further contended by the government that the evidence shows that for most of this period the division was practically by thirds; one-third of the profits being paid to each of the accused just named. This exhibit is called 319. It would be unjustifiable for the court to attempt its complete recapitulation. Only one sheet will be read, in order to refresh the memory of the jury as to the manner in which the statement is framed. It will be borne in mind that these statements were spread on a large easel before the jury. The government expert, Mr. Johnson, who is also a bank examiner of the Treasury Department, called and pointed out to the jury each item of the account set forth by the sheet; and for each item positively stated in the entire 32 great sheets which were gone over before the jury with the intent to account for the payment, investment, and final distribution of the vast sum involved in this trial, astonishing as the statement may seem, he was enabled, with the prompt and capable assistance he received, almost instantly to produce the original evidence in the nature of a check, deposit slip, and the like, as each was needed, in verification thereof. None of the evidence thus produced is questioned. No one questioned the authen
ticity of it. The deduction he makes, and the manner in which he arrived at the apparent results pointed out by him have been questioned and criticised by the evidence of an expert retained by the defense, a Mr. McPherson. The comparative correctiveness of the opposing statements is a matter exclusively for the determination of the jury.
The statement which will be read is No. 9, and the jury will have it before them, and if they think proper may examine the blue print from which this is copied, and all the others explained by Mr. Johnson and criticised by Mr. McPherson, if they deem that this is essential to a proper understanding of the issues they are to determine. This is the sheet:
Description of Checks Divided. Date of check: August 3, 1893. Number of check : 224,449. In whose favor: Atlantic Contracting Company. On whom drawn: Assistant Treasurer of the United States, New York. Amount of check : $39,075.
How Deposited for Division. Bank in which deposited: American Exchange National Bank, New York. Date of deposit: August 7, 1893. In whose account deposited: William T. Gaynor. Exhibit showing deposit: No. 246. Amount of deposit: $39,075. Less arbitrary allowance, trip Carter to New York, $75. Amount for division: $39,000.
How Divided. Carter's whereabouts: New York. Exhibits showing same: Nos. 300 and 301. Column of thirds: One-third, $13,000; allowance, $75. Certain Checks Between the Parties at or About Corresponding Dates. Drawer of check: William T. Gaynor. Date paid: August 7, 1893, favor of unknown. Exhibit number: 248. Amount of check: $13,075.
Certain Deposits at or About Corresponding Dates. See testimony of Franklin Ford, pages 1902 and 1904.
Deposit in account of O. M. Carter with Reed & Flagg, subsequently transferred to the account of R. T. Westcott.
Date of deposit: August 9, 1893.
Date of purchase: August 10, 1893.
Description of securities: 10 Delaware & Hudson, Pennsylvania Division, 7 per cent. bonds.
Numbers: 82, 83, 293, 528, 593, 840 to 842, 1648, 1649.
Paid for Viz. : See testimony of Franklin Ford (record pages 1902–1904), that in connection with Carter's visit to the office of Reed & Flagg the following deposits were made : August 9, 1893, currency..
$13,000 3 per cent. premium on sale of $13,000, currency, check..
$13,390 Less: August 10, 1893, Reed & Flagg, check: Deposit by O. M. Carter in the Union Trust Company, New York..
Exhibits: 239, 23812, 239, 239, 23812, 239, 239, 251,
Disposition. Description of securities : 10,000 Delaware & Hudson, Pennsylvania Division 7 per cent. bonds.
Numbers: 82, 83, 293, 528, 593, 810 to 842, 1648, 1649.
Coupons and Dividends. Dates of deposit tickets, showing Carter's collection of coupons and dividends :
September 1, 1893.
The government undertakes to show a division of money between the defendants on trial from December, 1891, to July 6, 1897. The compilation just read brings into juxtaposition the evidence relating to what is termed by the expert, Mr. Johnson, the ninth “division. As stated, there are 32 so-called divisions, which he has illustrated by the same method. Of course the reference of this witness to “divisions,” checks "divided,” how “divided,” etc., only relates to the method he has adopted to illustrate the evidence, and cannot be considered as his opinion that such divisions, if any, were the result of an alleged conspiracy; or that the money was unlawfully divided with Carter, if divided at all. It is for the jury to determine from all the evidence relating to this topic, whether or not there was the division of money charged in the indictment, whether this is the proper inference to be drawn from the evidence brought into juxtaposition by the compilation of Mr. Johnson, considered in connection with all the other evidence, particularly that of the expert accountant, Mr. McPherson, offered by the defense.
Under the head of “Division, January 3, 1893,” also called the second division on Exhibit 319, four checks are considered. They were issued by Capt. Carter in December, 1892; three are payable to E. H. Gaynor, and one to the Atlantic Contracting Company. They aggregate $65,632.62, which sum was deposited January 3, 1893, in the account of J. F. Gaynor. There appears on the exhibit referred to the following