486
THE GREEN BAG
ner, for the crime of perjury. It was charged, in the indictment of Tanner, that he had sworn falsely before the grand jury with reference to his partnership contract with Senator Mitchell. Three days later, on February n, Judge Tanner plead guilty in open court to this indictment for perjury, and made a full confession which implicated Senator Mitchell in an attempt to fabricate a false contract in lieu of the genuine one for the purpose of concealing the receipt of moneys from Kribs for improper services to be rendered in the General Land Office. Tanner has not been sentenced. On April n, 1905, Senator Mitchell in terposed a demurrer and a plea in abate ment to the indictment found against him on February r. His demurrer was based chiefly on the contention that the indict ment did not charge him with knowledge of the receipt of any of the moneys which Kribs had paid, and also on the ground that it did not in terms state that Senator Mit chell was a United States Senator at the time named. The indictment charged that Kribs, with intent to unlawfully influence Binger Her mann, Commissioner of the General Land Office, to expedite certain entries pending in the land office employed Senator Mitchell and his law partner, A. H. Tanner, to per form services for him in connection there with. It charged that after Mitchell's elec tion as senator, and during his continuance in office, Mitchell and Tanner, on February 13, 1902, unlawfully received from Freder ick A. Kribs, five hundred dollars for services rendered and to be rendered before Binger Hermann, Commissioner of the General Land Office. There were six additional counts in the indictment which did not differ materially from the first count. Judge Dellaven, who presided at the trial and passed on the demurrer, held that the indictment was very inartificial, but that it sufficiently appeared from the indictment both that Mitchell had knowledge of the
payment of the Kribs money and that he was United States Senator at the time in question. The plea in abatement was passed on by Judge Charles B. Bellinger in the last opin ion which he rendered before his death in the month of May. This plea in abatement was based in part on the fact that certain jurors who sat on the grand jury were not taxpayers in the state of Oregon; in part on the fact that Francis J. Heney, a citizen of California, was undertaking to fill the office of United States District Attorney for Oregon'; that by reason of non-residence he was ineligible; that he had been in the juryroom and had induced the jury to bring in the indictment. These, and the other ob jections raised by the plea in abatement, were held insufficient by Judge Bellinger on objections thereto presented and argued by Mr. Heney. Aside from these preliminary questions, by much the most interesting question of law developed by the trial was the question of Judge Tanner's qualification as a witness for the government. The case against Sen ator Mitchell was dependent very largely on the testimony of Judge Tanner, chiefly for the purpose of identifying the corre spondence which had passed between him self and Senator Mitchell, all of which was secured by the government at the time Judge Tanner turned state's evidence. When Judge Tanner was called as a wit ness, counsel for Senator Mitchell inter posed an objection to his being sworn on the ground that he was disqualified under Sec tion 5392 of the Revised Statutes, by reason of his having pleaded guilty to the crime of perjury committed before the grand jury, in January, 1905. This section reads as follows : "Every person who, having taken an oath before a competent tribunal, officer, or person in any case in which a law of the United States authorizes an oath to be ad ministered that he will testify . . . truly . . . .willfully and contrary to such oath
