TUESDAY, JUNE 13, 1882.

The court met at 10 o'clock a. m.

Present, counsel for the Government and for the defendants.

Mr. MERRICK. If your honor please, my associate has some of my papers, and does not seem to have come in yet, but I will proceed to offer what I propose as matters of record in connection with this route; and I will say to your honor, and to the learned counsel on the other side, as I just stated to brother Wilson, that my purpose is in the course of the examination to take up route after route systematically. As I take up each route we will put in whatever testimony we may have. I do not think the introduction of the route testimony will be much interspersed with other testimony, except parole testimony in connection with the particular routes.

Mr. HENKLE. Are you going to take them up in the order in which they are named in the indictment?

Mr. MERRICK. Not necessarily.

Mr. WILSON. If you can do so, I wish you would inform us what route you will take up next after this one?

Mr. MERRICK. Certainly. My purpose is to take up after this one the route from Saint Charles to Greenhorn.

The COURT. What is the number?

Mr. MERRICK. No. 38135. I think I will take it up next. It depends somewhat upon the number of witnesses, their distance from here, &c. I may take up another one. As to the route on which we were offering testimony yesterday, I now propose to offer the certificate of Mr. Ela, the Auditor of the Treasury for the Post-Office Department, as to revenues for part of 1878, 1879, 1880, and part of 1881.

Mr. TOTTEN. Will you let us look at that?

Mr. MERRICK. Certainly.

The COURT. That is already in evidence in a printed document. Mr. MERRICK. I do not know. It may be. I was going to say in this connection that in reference to each one of these routes in the indictment I shall offer a similar piece of evidence without regard to its effect. If I offer in one case what may be advantageous to the Government, it is proper that I should offer the same evidence as to all. [Submitting paper in question to the counsel for the defense.] Whilst the gentlemen are looking at that paper, I will also say that I shall offer immediately afterwa ds a certificate in reference to the payments made upon the several routes in the indictment, showing to whom payments were made, contractor, subcontractor, assignee, or whoever it may be. You may look at that paper, also, gentlemen [submitting the same to counsel for defense].

Mr. HENKLE. Does that show the fines and deductions?
Mr. MERRICK. It shows everything.

Mr. COLE. Does it include all the routes in the indictment? Mr. MERRICK. I offer this morning the payments on this route, and I shall offer the payments on each route as it is introduced. It is all on that paper. I shall offer the evidence in that way in order to prevent confusion in the minds of the jury. They will thus be enabled to clearly understand one route before the next is taken up. I will proceed systematically, taking one route and finishing it up, putting it aside and then taking up another, and the jury can put the recollections of one in the store-house of memory while they are going on to another. No. 14336-29

Mr. INGERSOLL. I suppose this evidence does not go to any overt act yet.

The COURT. I do not understand that it does. It is just like a case of a man on trial for homicide.

Mr. INGERSOLL. I know; but they are tuning the fiddle. They have not struck a tune yet.

The COURT. A man is murdered in his house at night, and evidence is offered of what time he came home at night, where he slept, whether he was in the house early or not, who were in the house-on that general principle to ascertain the surroundings of the case.

Mr. TOTTEN. If these items of testimony are confined within that limit we have no particular or serious objection; but if this evidence is introduced now either for the purpose of proving the combination and conspiracy, or for the purpose of showing the overt act necessary to consummate the offense charged, we do object. I may be permitted to repeat this morning, your honor, that, in my judgment, no testimony of this character can be introduced to prove a combination such as is charged in this indictment. That must be proved by evidence aliunde, and if there is to be any proof of a combination by acts, those acts must be brought home to each individual member of this alleged conspiracy.

The COURT. Nobody is going to be found guilty in this court whose guilt is not brought home to him.

Mr. TOTTEN. That is some comfort, your honor.

Mr. MERRICK. I think the counsel might have had that comfort before. Although the testimony is in, I controvert the position he has taken.

Mr. HINE. I note an objection on behalf of Mr. Vaile, on the additional ground that the testimony is immaterial. It is no concern of ours whether the revenue was large or small, whether they carried the through mail, or whether they did not,

The COURT. The reporter will note Mr. Hine's objection. [The objection is accordingly here noted.]

Mr. MERRICK. Does your honor desire to look at the certificate of the auditor to see if it is in proper form? [Exhibiting paper to court.] The COURT. I see the seal very distinctly.

Mr. MERRICK. I offer now the certificate of the auditor as to the revenues derived from the line from Kearney to Kent, during two quarters of 1878, the third and fourth; the first, second, third, and fourth quarters of 1879

Mr. TOTTEN. [Interposing.] Are you reading to the jury?

Mr. MERRICK. Yes; I am reading to the jury.

Mr. TOTTEN. We object to that, your honor. It is not a matter of importance at all, in this case, whether the revenues were great or small. It is not an item of testimony certainly.

The COURT. Mr. Hine has made an objection on that point, and his exception is noted.

Mr. TOTTEN. I thought he was objecting on some other ground.
Mr. MERRICK. Shall I proceed?

The COURT. Certainly.

Mr. MERRICK. I offer a certificate of the revenue of these post-offices during the third and fourth quarters of 1878, and the first, second, third, and fourth quarters of 1879, the first, second, third, and fourth quarters of 1880, and the first and second quarters of 1881.

The COURT. Hand the paper to the clerk and let him mark it.
[The paper was handed to the clerk and by him marked 14 A.]
It is as follows:

Form of certificate.

(F.)

OFFICE OF THE AUDITOR OF THE TREASURY

FOR THE POST-OFFICE DEPARTMENT.

I, J. H. Ela, Auditor of the Treasury for the Post-Office Department, do hereby certify the annexed to be a true and correct statement from the records of this office showing the gross and the net revenues of the post-offices located on route No. 34149, Kearney to Kent, Nebraska, from July 1, 1878, to June 30, 1881.

In testimony whereof I have hereunto signed my name, and caused to be affixed my seal of office, at the city of Washington, this 12th day of June, in the year of our Lord one thousand eight hundred and eighty-two. [SEAL.]

J. H. ELA,