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 THE CONVICTION OF A SENATOR states or subscribes any material matter which he does not believe to be true is guilty of perjury and shall be punished by a fine of not more than two thousand dollars and by imprisonment at hard labor not more than five years; and shall moreover, there after be incapable of giving testimony in any court of the United States until such time as the judgment against him is re versed." It will be noted that the language of this statute is not as clear as might be desired and the defendants raised the question as to whether the word "thereafter," found in the last clause of the section, referred to the commission of the perjury or to the judg ment and punishment therefor. The court held that there was no disqualification in the absence of a judgment finding the wit ness guilty of the crime of perjury. Judge Tanner's evidence was therefore admitted, an exception being reserved by the de fendants. The testimony for the government tended to show that the moneys paid by Kribs were paid in the form of checks drawn in favor of the firm of Mitchell and Tanner; that in every case these checks were deposited by Judge Tanner to the firm credit, and a few days after the expiration of the month in which the money was paid the balance to the firm's credit in the bank was divided, Senator Mitchell receiving his share. On this state of the record, it was con tended in Senator Mitchell's behalf that he was not chargeable with knowledge of the source from which the moneys came until after the payment had been made. Author ities were cited to show that there must be a guilty knowledge at the time the money is received. This contention was overruled by the court, principally on the ground that there was evidence tending to show that Mitchell had constituted Tanner his repre sentative and agent for the purpose of re ceiving these moneys, and that he was there fore chargeable with Tanner's knowledge at the time the moneys were paid.

487

On this evidence another contention was made in behalf of Senator Mitchell. The charge in the indictment was that the moneys in question had been paid by Kribs. The defendants contended that this evi dence, if it tended to show that any money had been paid to Mitchell, did not show that Kribs had paid the money. Authorities were cited to show that a deposit of funds in bank creates the relation of debtor and creditor between the depositor and the bank, and not the relation of trustee and cestui que trusl. It was contended in Sen ator Mitchell's behalf that the deposit of the Kribs check in each case in bank de prived the money, for which the check stood, of any Kribs ear-marks, and that a subsequent payment to Mitchell, or a sub sequent deposit to his credit, did not prove the allegation of the indictment that the money had been paid by Kribs. This con tention was also overruled by the court. One of the strong points in the govern ment's case against Senator Mitchell was the testimony of Judge Tanner, to the effect that when Mitchell came to Oregon in De cember, 1904, to appear before the grand jury, he and Tanner had entered into an arrangement to prepare a new firm con tract, under the terms of which Judge Tanner should be permitted to hold for his own use all moneys received by the firm for services rendered in any of the departments at Washington. Such a contract was pre pared and ante-dated to March, 1901, the beginning of Mitchell's senatorial term, and Judge Tanner appeared before the grand jury with testimony that the fabricated contract was genuine. Through shrewd work on the part of the detectives in the service of the government this transaction was run down, and Judge Tanner was con fronted with such proofs of the fabrication of the contract as induced him to turn state's evidence. Senator Mitchell's counsel endeavored to keep out of the record all of this testimony in regard to the fabricated contract, by