the jury without any assistance whatever from Heney, and had even commenced the examination of witnesses without giving his superior an opportunity to be heard, something- occurred that satisfied me we had no earthly show of being acquitted. The question of what constituted an overt act under a charge of conspiracy arose during- the course of the examination of witness Greene, and our attorneys kept up a perfect fusilade of hot shot at Hall until they had him going, and in fact he was all in. He had taken his seat and was looking imploringly at Judge Bellinger, who presided at the case, until his pleading countenance, witii its expression of longing for a favorable ruling, bore a striking resemblance to an Aztec watching for the coming of Montezuma. At this juncture my attention was directed to the vicinity of the farther end of the lawyers' table, and I saw at once that the Special Assistant had begun to unlimber his batteries and get in the game.
Colonel A. R. Greene, Special Inspector, Department of the Interior, had been placed on the stand to identify the title papers as those intrusted to his care by the General Land Office. Judge Pipes, of counsel for the defense, interposed an objection to the line of testimony, claiming that the counsel for the prosecution was "turning this case topsy-turvy." He also attacked the indictment, stating that it was faulty and a monument of ill-shaped phrases, and that it did not tend to connect the defendants with any conspiracy.
Mr. Heney followed out the terms of the indictment, and showed that the pleadings of the opposing attorney were specious, and made one of the strongest presentations heard in the case up to this time. The speech, of itself, was most eloquently delivered, and as Mr. Heney cited innumerable Supreme Court opinions sustaining every contention, his remarks carried great weight and were all too convincing in character to be taken lightly by counsel for the defense. It was common talk, in fact, among defendants' attorneys, that our rank and file must be reinforced by all the reserve forces at our command, for now, indeed, if never before, it was fully realized by all concerned, that Francis J. Heney was a veritable cyclone.
On November 21, 1904, those charged in the indictment with conspiracy to defraud the Government of its public lands in the now famous 11-7 case were brought to trial, with the exception of Harry C. Barr, who had been adjudged insane by Justice of the Peace Waldemar Seton, and sent to the State asylum at Salem, from which institution he later made his escape and has never since been apprehended.
The Government was represented by Francis J. Heney, of San Francisco, Special Assistant to the United States Attorney-General, and John H. Hall, United States Attorney for Oregon, while the following attorneys appeared for the respective defendants: Judge Thomas O'Day, of Portland, for Horace G. McKinley; C. A. Hardy and A. C. Woodcock, of Eugene, Ore., for Marie L. Ware; L. H. Tarpley, of Portland, for his brother, Dan W. Tarpley; while Judge Martin L. Pipes, of Portland, and my brother, Lawrence F. Puter, of Eureka, Cal., assisted by F. Pierce Mays, of Portland, as silent counsel, represented me.
Neither Emma L. Watson or Frank H. Walgamot employed counsel, as it appeared unnecessary for them to do so, on account of the case being in the nature of a joint proceeding. On the last day of the trial, however, Claude Strahan, a Portland lawyer, was engaged by Walgamot to look out for his interests in connection with his plea of guilty, made just before the case went to the jury.
Aside from Mays' assurance that any verdict of conviction could be set aside by reason of the operation of the statute of limitations, I took a peculiar satisfaction in the further knowledge that but three of the ten entrymen had used their real names in making their filings, and it would thus become a difficult matter for the prosecution to maintain its case against us in the trial, as the burden of proof would naturally rest upon the Government.
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