UNITED STATES v. COLE et al., 25 F. Cas. 493

OPINION OF THE COURT. Before the-jury were called, a motion was made by the defendants' counsel to quash the iu-dictment. The main ground upon which the motion to quash was urged was. that the act under which the indictment was found, applied, exclusively to offenses committed on the high seas, and not on our rivers and lakes. It was also urged that the act was unconstitutional, if it was intended to apply to our internal commerce. These points were argued elaborately, on both sides, and. with ability.

In deciding the motion, McLEAN, Circuit Justice, said, that the court would proceed to give its impression upon the ease, which had been so ably argued. The law under which the prosecution was commenced, is embodied in the 22d

section of the act of the 3d of March. 1823.

It provides, "that if any person or persons shall, on the high seas, or within the United States, willfully and corruptly conspire, combine and confederate, with any other person or persons, such other person or persons being either within or without the United States, to cast away, bum, or otherwise destroy, any ship or vessel, or procure the same to be done, with intent to injure any person or body politic, that hath underwritten, or shall thereafterwards underwrite, any policy of insurance thereon, or on goods on board thereof, or with intent to injure any person or body politic, that hath lent or advanced, or thereafter shall lend or advance any money on such vessel, on bottomry or respon-dentia,-’ &c. 'Che first position of the counsel who concluded the argument on the motion was, that the act was unconstitutional and void.

He contends that the object of the law was, to protect insurance companies, and that congress has no power to pass such

an act. This act does not purport to be for the protection and regulation of insurance offices. It is clear that congress can exercise no power over contracts of insurance. It has been decided that when a policy of insurance was on a ship on a sea voyage, as the policy operated upon the water, and not on the- land, that it was a marine contract. This is contrary to the English doctrine, as it requires the contract to be made on the water to give it the character of a marine .contract. The courts of common law. in England, have been strongly opposed to the admiralty jurisdiction.

And the rule is well settled there, that it cannot be exercised within the body of a county. It can be exercised over no water where the tide does not ebb and flow. The supreme court of the United States have adopted a more reasonable doctrine, long established by the civil law, that a maritime jurisdiction may be exercised over navigable waters. Navigableness is the true test, and not the flowing of the tides. It is known that in England there are few if any rivers navigable higher than the flowing of the tide, and this is generally the case with the rivers in the Atlantic states.

This, was, no doubt, the cause why the English rule was first followed by our courts in this country. There seemed to be no good reason why the same rule should not be applied in both countries, as the navigable waters of both were made navigable by the tide. It was a convenient term, at first used to describe the extent of navigable waters in England. We have adopted the fact rather than the definition of it. Wherever commercial crafts may float between two or more states, the maritime jurisdiction extends.

But independently of this view; under the constitution, congress has the same power to regulate commerce among the several states, as with foreign nations. As regards the present case, no distinction need be stated, if any exist, between the regulation of our foreign and domestic commerce. Is the scope of the act in question to protect policies of insurance? What is clearly the object of the law? The conspiracy charged is against a vessel and her cargo, upon a river under the protection of the commercial power of the Union.

The protection of commerce is the object of this law; the protection of insurance policies is merely incidental. Congress might have punished the burning of the vessel, but it was not thought proper to do so; it has leveled its enactment at the incipient stages of the offense. The law in its object is preventive; by inflicting the penalty on the determination to commit the crime. It does not go behind the overt act to the motive, as the laws of omniscience; but it strikes at the first manifestation of the intent. Whether the conspiracy is formed on the high seas, or within the United States, is of no importance.

The offense is so far consummated as to come within the act when the conspiracy is formed. It was wise to strike at the flrst step, as it gives time for reflection and repentance. The words of the

section apply as forcibly to vessels on our rivers and lakes, as on the high seas. The mischief is as great in the one case as in the other. But the opportunities and motives to commit the offense against our internal commerce are much greater than against our foreign commerce. Under such circumstances can any court hesitate to consider the law according to the express language used, as punishing the offense, whether committed on our internal or foreign commerce.

The invoices are alleged in the indictment to have been false, and if they were really so, it is argued there could be no conviction, as the conspiracy charged is to destroy the cargo. Can the defendants claim an exemption from the penalty of the statute, by committing a double fraud? A fraud in having false bills of lading, and another fraud in conspiring to destroy the cargo. False invoices or bills of lading would establish the fraud charged. If a party is not liable under the act of congress when the shipment is fictitious, he would be protected from punishment by his own fraud.

This is inadmissible in any code of morals, and especially is it against the law. We have not time to read the indictment through,, but our impression is, on hearing it read, that it is sufficient. The defendants can avail themselves of any fatal defect in the indictment at a future stage of the proceeding. The motion to quash the indictment is overruled. The jurors being called, Messrs. Morton and Stanbery. on the part of the government, demanded the exercise of their peremptory challenge after the defendants had challenged.

Judge Walker had never heard of the violation of the rule that the government should challenge first, and then the defendants exercise their right, except in two instances. THE COURT decided that the challenge should be exercised alternately. Counsel for the government had no objection to the jury if the defendants had not. They waived the first challenge.

Judge Walker proposed to propound the following question to each of the jurors: “Have you. by conversation with others, or by the reading of newspapers, acquired such a bias as will prevent you returning an impartial verdict according to the law and the •evidence?” THE COITItT allowed the question to be put. Mr. Yan Slyke answered that he had t'orni-•ed an opinion unfavorable to the defendants; and for that he was excused for cause. The other eleven replied in the negative! Judge Walker challenged a juror peremptorily. Dr.

Moeller was called to fill the vacancy. and begged to be excused because he had formed an acquaintance with Kissane, as physician to the jail. Further discussion took place between counsel. Juror was interrogated by THE COURT. He replied that his •sympathies had been somewhat excited for Kissane—had had conversations with him with respect to this ease on one or two oeca-sions. Had not such a bias as would prevent his returning an impartial verdict. Had patients that needed his attendance. THE COURT excused Dr. Moeller. Mr. Slocum was called to fill the vacancy.

Judge Walker put the question he had before propounded to the other jurors, to Mr. Slocum. The juror had no bias. Judge Walker challenged another juror peremptorily. A. J. Clark was called. Question put by Judge Walker, and answered in the negative. Judge Walker asked the defendants whether they desired he should make any further challenge. ■ Mr. Stanbery now claimed to exercise the right to peremptory challenge for the government. After consultation between the judges, THE COURT allowed it. A. J. Clark was challenged by Mr. Stan-bery. Judge Walker challenged the juror who was called in Mr. Clark’s place. Benj.

Tresenrider was called to fill the vacancy. Question put and answered in the •negative. Mr. Slocum was challenged for the defendants. John R. L. Seegur was called. Question as to bias put and answered in the negative. Dr. Toland was challenged by counsel- for defendants. James L. Farren was called. Question put as to bias by Judge Walker. Juror:—“Know nothing about the case— would rather be excused from serving—just stepped into the court five minutes ago to see who Judge McLean was. Had no idea of being called as a juror.” Mr. Miner was challenged for the defendants.

Henry Wellhamer was called, and came in crying—I wish to be excused, judge. McLEAN, Circuit Justice: Very likely—but for- what reason? Juror:—I have just set out on a journey. Mr. Wellhamer was excused for that reason by the court, Mr. Taylor called. Question put as to bias-answered in the affirmative, and was therefore excused. William Blynn called. Question put as to bias—answered in the negative. Another juror challenged by Judge Walker. Geo. W. Slocum called. Question put—answered “no.” Another juror was challenged. A. McCrea was called.

Question put—answered: he had read the preliminary trial and formed an opinion. Excused. A. Tyler called. Question put—answered in the negative. Mr. Tyler was challenged. There being no prospect of completing the panel, the court adjourned. Friday, October 21, 1853. The calling of jurors to complete the panel was proceeded with. Some jurors were excused on the plea of sickness or inability to endure the confinement attendant on the trial. The jury, as finally constituted, stood as follows: Joseph Newell, Levi J. Haughey, Wm. L. Brown, E. B. Sacket, Jas. L. Farren, Geo. W. Slocum, Wm. Aston. S. Y.

Martin, John Miller, F. C. Sessions. C. W. Kent, Henry Miller. Mr. Morton, Dist. Atty.. opened the case for the United States, as follows: The grand jury of the United States, for the district of Ohio, at the last April term of this court, returned as a true bill, a bill of indictment against Lyman Cole. William Kissane, John N. Cummings, George P. Stephens, William H. Holland, Benjamin W. Kimball. James W. Chandler, James G. Nicholson, Adams Chapin, Amasa Chapin, Rufus Chapin and Lorenzo Chapin, charging them and one Lucius L.

Filley, deceased, with entering into a combination and conspiracy to burn the steamer Martha Washington, and with afterward setting on fire and burning said boat. The time and place of the conspiracy is laid as of the fifteenth day of December, A. D. 1851, at Cincinnati, in the district of Ohio. The burning of the boat is alleged to have taken place on the fourteenth day of January, A. D. 1852, near Island Sixty-Five, in the Mississippi river, about sixty miles below Memphis.

The object of the conspiracy was to injure and defraud underwriters who should thereafter underwrite policies of insurance upon the hull and cargo of said steamer. The first count charges the conspiracy in general terms in the language of the statute, without specifying any overt act. The remaining seven counts charge the offense in the same manner, together with divers overt acts, done and performed by some or all of the defendants in furtherance of the common design.

All of the remaining counts I>articularly set forth and describe policies of insurance, which were obtained by the defendants, and the sixth count alleges that divers other policies of insurance were pro-eured by the defendants from underwriters to the grand jury unknown. Nine only of the defendants are now on trial. .Tames G. Nicholson, the clerk of the boat, was arrested before the finding of the indictment, and was discharged on bail. He did not appear, and his bail bond was forfeited at the last term of this court, and he is still at large, as also are Stephens and Chandler.

Although the most diligent search has been made for them, they hare not been found.' The others (save Filley, who died before the indictment was found) are now on trial. To this indictment the defendants have plead not guilty, and you are now im-panneled to try the issue between them and the government. It is the duty of the government'to preserve the peace and good order of society, and for this purpose laws are enacted defining those acts which constitute a crime, and fixing a penalty for its perpetration.

When a person is legally accused of a crime or misdemeanor he must be tried, and if found guilty, must suffer the penalty of the law. The welfare of the community, the very existence of civilized society depends upon the due administration of law. But it is also a high and sacred duty of the government to protect the innocent and unoffending in the enjoyment of their rights, and when a man is accused in the courts of justice, it is incumbent upon the officers of the law to afford him every possible means of establishing his innocence, and to prevent any unfairness to be practiced in procuring his conviction.

The high character of the judges who compose this court, and the distinguished ability and learning of the professional gentlemen who appear on behalf of the defendants, and (if I may be permitted to allude to it without giving offense) the number of counsel employed. is a sufficient guaranty that they will have a fair and impartial trial, and if innocent will certainly be acquitted.

You, gentlemen- of the jury, are too well informed of your duty as jurors and the obligation of the oath you have just taken to permit any thing but the truth as it shall be given you in evidence, to affect your judgment or influence your verdict. You will direct your attention to the law and the testimony, and carefully, exclude from your consideration every statement or rumor which you may have heard or read, calculated to prejudice these defendants.

You have already discovered that this investigation is to be a protracted and laborious one. and will call for the exercise of all the patience and candor of which you are possessed. That such an accusation as is contained in this indictment should be allowed to pass without legal investigation, or that after conviction the offender should escape the severest penalties of the law, would be an everlasting stigma upon our institutions of government.

A distinguished lawyer and statesman of Ireland, speaking of the administration of law in the courts of England, said that with a coach, and six any man could drive through

an act of parliament. For the honor of my country I hope the time may never come when this may ever be truly said of the courts of the.United States. Of the courts of republican America let„it ever be said that here the stream of justice flows ever pure and uninfluenced by affection, unintimidated by power, and undefiled by corruption. Let us inquire now for the law upon which this indictment is founded. IVliat is the mischief designed to be prevented by it? It is to prevent combinations and conspiracies to bum any ship or vessel with intent to defraud any underwriters.

Three things must exist to constitute the offense—the confederation or agreement of two or more persons, to burn a ship or vessel, for the purpose of defrauding underwriters. If the conspiracy be proved and the intent be established, viz: to defraud underwriters, yet if it be to burn a house it would not sustain this indictment. The fraud which this law is intended to prevent is that alone which can be effected by the burning of a ship.

We can clearly see then that it was that great department of the business of the country which is carried on by means of ships or vessels, that is intended to be protected by this act. Several important inquiries arise upon the law of this statute, but this is not the proper stage of the investigation for their examination. It is sufficient to say, “ita lex scripta est." Thus the law is written. We must observe the law without enquiring into the reasons of it. But the necessity of this law is obvious. We are a commercial people, made so by our vast industrial and agricultural resources.

Our rivers furnish exhaust-less supplies of power for propelling machinery as well as do our mountains of coal and great forests. The mineral wealth of the country needs not to be transported to great distance to be manufactured, for here both the raw material and the motive power are found in the same region of country. But of what use are manufactories without a market? and there is no market without commerce. Our own wants are already supplied in every species of product of our own industry.. We must exchange our own for those of other nations or we derive no profit from our labor.

Consider next the agricultural wealth of this country. Here is the granary of the world, the Egypt of modern times. Here lie the rich valleys, the fertile hills, the broad plains and illimitable prairies of the Great West, all teeming with the luxurious products of the soil. But what of all these, and of what value are they to us if we have not commerce? Our richest treasures turn to ashes in our hands if we can not carry them to the people who inhabit less favored regions of the earth. But we have the means ample and sufficient for all these wants.

We have steamers, we have sail ves-seis, we have the stately ship and the humble navigator of the creek and canal. Every river and lake, every pond and basin , from Newfoundland to Mexico, from the Alleghenies to the Eocky Mountains, is agitated and kept in motion by these vehicles of commerce. 'Byron said, in describing the movements of a ship, ‘‘she walks the water like a thing of life.” I would improve the simile by saying that these instruments of commerce make the very waters instinct with life and action.

The amount and value of property daily floating upon our navigable waters is vast almost beyond the reach of calculation. To those not engaged in commercial pursuits, and not accustomed to study commercial statistics, a statement approximating any where near the truth would be considered exaggerated and wildly extravagant. But commerce is a hazardous pursuit, peculiarly so. Out of the necessities ,of this immense commerce associations of underwriters or insurance companies have sprung up all over the country.

Some have been fortunate and successful; others have been overwhelmed by losses, and those engaged in them brought from affluence to poverty. Their office is to protect commerce by assuming its hazards and risks. The influence of these associations of underwriters has been in the highest degree salutary to the commercial interests of the country.

When the merchant or the producer embarks his entire fortune upon a frail ship for a distant market, these associations are ready to assume all the hazards, of the voyage, and to guaranty its safe arrival at the port of destination, for a small proportion or per centage of its entire value.

In case of a loss, the calamity, instead of falling with crushing weight upon the owner, and consigning himself and family to beggary, is distributed upon a great number, who, by a contribution of small proportions, are enabled to restore to the owner the entire value of his property, generally without serious damage to any one. Thus the loss is assessed upon the whole commercial community—-a worthy and enterprising member of it is saved from ruin, and his business is continued without interruption.

Thus, by means of the principle of insurance, a pursuit in itself the most hazardous, is rendered entirely safe, and greatly facilitated and encouraged. The protection and fostering care of the government has been extended to these associations, whose prosperity has justly been considered a matter of great national concern. The people in the formation of the constitution of these United States took care to remove this subject beyond the reach of the cupidity and selfishness of individual states, and entrusted it to the keeping of the national government.

Hence the passage of the law by congress upon which this indictment is founded. The court has decided that congress has power to pass this law; if it could not elsewhere be found in the constitution, it seems to me it might properly be referred to the general grant of power to pass all laws necessary to the exercise of the power expressly granted. But this is not the time to discuss, nor is a jury the proper tribunal to pass upon that question.

The voluminous nature of the testimony, the multiplicity of the facts involved, render it impossible that 1 should at this time communicate to you a particular and detailed statement of -the proofs which will be adduced on the part of the government in support of the indictment. I shall content myself with merely pointing out to you under general heads, the nature and kind of proof which will be adduced' in testimony before you. I. The relations of the defendants to one another will be shown.

It will appear that a part of them were on the river Eio Grande, during the Mexican war, not as soldiers, but as followers of the camp, in pursuit of private gain. That they were intimately associated and closely connected .together, while in that country. Those who were thus engaged on the Rio Grande, are Cole, Cummings. Holland. Stephens, Chandler, Nicholson, and two of the brothers Chapin. After the close of the war, they are found congregated at Cincinnati.

Subsequently Kissane. and the two other brothers Chapin, and Filley. a partner of the Chapins, are admitted to their fraternity, and often seen in their company at divers places in and about Cincinnati, at unusual hours, and with no apparent business. They were often engaged in private consultation, the object of which was concealed from all but themselves. Save Fil-ley and the Chapins and Kissane, none of them were engaged in any ostensible business, and some of them were strangers, sojourning only temporarily at Cincinnati.

These interviews and consultations took place frequently before and for some time after, the burning of the boat. II. It will appear that the defendants, in December, 1851, concocted the purchase of the steamer Martha Washington, an old and dilapidated boat, and caused her papers to be made out in the name of Lewis Choate, who was in no way interested in the purchase. The reasons for this purchase, and for the adoption of the name of a fictitious owner, it will be important for you to ascertain.

For the prosecution it will be contended that this •was the scheme of fraud intended to be perpetrated upon the insurance companies. III. In order to procure policies of insurance and advances from consignees, the defendants pretended to ship large quantities of merchandise on board said steamer, and procured from the captain and clerk of the boat (who are charged as conspirators in this indictment) false bills of lading by means of which they succeeded in obtaining policies of insurance and advances to a very large amount.

Most of these were effected upon the sixth and seventh days of January- and from that time up to the 12th of January, 1852, in the short space of six days and at numerous places in parts of the country remote from each other. IT. The boat left Cincinnati on the night of the 7th of January, 1852. While on her way down the river, goods were put off at different ports which were marked as consigned to New Orleans and more distant ports. The boat was burned near Island Sixty-Five, about sixty miles below Memphis, on the Mississippi river, at half-past one o’clock on the morning of the 14th of January, 1852.

The captain, mate, and clerk of the boat were all up, neither having yet retired to their berths, and neither of them were on duty at the time. V. After .the burning of the boat the defendants entered upon a concerted course of action to render each other mutual aid in effecting the payment of the policies thus obtained by means of false papers and false oaths. The insurance companies demanded proofs of quantities and values of the goods on board at th§ time of the burning.

These defendants made false invoices to one another in order to consummate the fraud on the companies. and added the crime of perjury to that of conspiracy, arson and murder. Consignments of inferior articles of trifling cost, described as being articles of a superior kind and great eost, will lie shown to have been made by these defendants upon this boat. Some of the defendants failing to produce original bills of purchase, pretended that the same had been destroyed as papers possessing no value.

It will be shown that the amounts of property pretended to have been shipped by these defendants are incredible, considering their limited means and credit. The quantities of particular kinds of goods are incredible for any one house or person to be possessed of at that time in the year and state of the market with reference to supply and demand.

They were pretended to be shipped from Cincinnati to New York, when they were actually worth and. would command a higher price, if they had them to' sell, in Cincinnati than in New York, and the goods were of a kind to meet a ready sale for cash, as there was a scarcity in the Cincinnati market. The goods I now refer- to are hides and leather, of which it is claimed immense quantities were shipped by some of these defendants on board of this ill-fated boat.

We shall offer proof to show that if the goods which these defendants procured to be insured had been on board, she could not have floated them and the goods actually shipped by other persons. It will appear that there were goods on board of this boat which were lost but they were not the goods of these defendants and upon which these insurances were effected. VI. Having thus proved to you that the defendants are guilty of this unlawful combination and conspiracy by the testimony to which I have alluded, we shall then produce the confession of Lucius L.

Filley. one of the conspirators, now deceased, made in his life time, in which he gives the details of this horrible crime, and fully discloses all the parties engaged, and the part which each performed in tile tragedy, which resulted in the destruction of a large amount of property, and tne lives of sixteen at least, innocent, unoffending human beings. Thus, gentlemen, I have briefly stated the kind of evidence relied upon by the govemment for a conviction in this case.

By keeping these general divisions in view, I believe you will be enabled to perceive the application of ail the testimony which will be submitted on the part of the prosecution. After a large number of the witnesses in favor of the prosecution had been called and sworn, the counsel for the defendants observed to the court, from the nature of the prosecution, and the circumstances attending it. they deemed it important to have the witnesses separated, so that they should not hear the statements of the one under examination.

This was not objected to by the counsel for the prosecution; and it being a motion often made, rarely objected to. and never denied in a criminal case, the court entered the order. The witnesses for the prosecution were then called and examined in the following order: Robert Mctírew. Sen.—Stated that he lived in Cincinnati in 1851, on 7th street, between Main and Walnut. He knew Holland. Kis-sane. Cole, Nicholson, and Stephens. In October or the beginning of November of that year, Stephens and' Edwards came to his house to board. Holland came next; was brought to his house by Stephens.

Young Cole was introduced by Holland. Cole and Kissane came to see Holland. Cummings was brought to his house to (line by Holland. Capt. Cummings and Kissane were often there. Never saw Cole, the defendant, there but once. Saw Holland at Kissane’s pork house. Holland said he became acquainted with Cole and the Chapins in Mexico, on the Rio Grande. Holland. Edwards, and Stephens. with Cole, and some others, were engaged in running a steamboat on, the Rio Grande. It was here objected that the statement of Edwards, who is not a party on the record, could not be received as evidence against the other defendants.

THE COURT stated that the conspiracy must be proved, lie-fore the statements of those who were engaged in it, but were not indicted, could be received as evidence against the defendants. But as the prosecution proposed to prove the combination, the court would, for the present, hear the witness. In a few days after the above, the witness states that Edwards and Stephens left the house of witness, as they said, for New Orleans, Edwards said he was going in January on the Martha Washington, to take command of a boat on Red river. Holland returned after the burning of the Martha Washington.

Sometime afterward Stephens returned. Stephens first came to the house of witness, and afterwards, brought Holland to the house. Stephens remained three or four weeks. Holland remained longer. Saw Nicholson once when he called to see Holland. He appeared to have no business. Stephens said he came to receive the insurance for the goods lost on the Martha Washington. Heard Kissane say that he had never known- Holland or Stephens, until he saw them at the house of witness. On cross-examination, witness says, that when Kissane called at his house, he saw the persons above named in the public room.

He talked about having some tanks, and requested Stephens to call and see the ranks. At the time Holland was at the house of witness, the river was frozen over. William Northup—Witness lived in Cincinnati in 1851. His place of business was corner of Court and Walnut. In 1842 the witness lived on Fourth street. In the winter of 1851. before Christmas, saw Kissane call frequently- on Cummings. * Robert McGrew. Jt—States . substantially, facts, as related by his father. Mr.

Walker, one of the counsel for defendants, made the objection again that no confessions of a party, not in the indictment, should be received to inculpate the defendants, until the conspiracy shall be established. 2 Starkie, Ev. 327, was cited. 2 Russ. Crimes. 700. and Rose.

Ev. 417, were read to show that the declaration of a stranger to the record could not be received as evidence THE CO CRT stated it was a matter of practice in such a case, whether the court would hear the confessions of persons not on the record, to implicate the defendants, when an assurance was given by the prosecution that they would connect the person with the conspiracy. But THE COURT observed, that the better and safer rule was, not to hear such confessions, before prima facie evidence was given to connect the witness with the conspiracy. 3 Greenl. Ev. 58; 34 Eng. Com. Law. 400; 2 Russ. Crimes, 077.

The witness. McGrew, further stated, that Stephens paid his father for the board of Edwards, and also furnished Edwards with some clothing. Edwards had no boxes of merchandise at his father’s. Holland, when - he returned,, had but little property, after the boat was burnt—a carpet bag was all. Mr. Penniman—Witness lives in Terre Haute. In 1851-2, lived in Maysville, Kentucky. He was acquainted with several of the defendants. The winter before witness was acquainted with Nicholson at the City Hotel in Cincinnati.

Nicholson spoke to witness at Maysville: said he was on his way to see his wife at the Esculapián Springs, in Kentucky; before the Martha Washington sailed. Said he had purchased that boat. Witness boarded at the Walnut Street House, in the spring of 1852, and saw Kissane. Nicholson, and Cummings walking on the street. Also he saw Nicholson and Cum-rnings at Kissane’s place of business. Had some conversation with Capt. Cummings, who said the boat took fire on the larboard side. Mr. McGregor—Was one of the owners of the boat Martha Washington.

Saw an advertisement saymg some persons were desirous of buying a steamboat; addressed a letter to Mr.-. as directed, and received in reply a letter from Capt. Cummings. Witness told him that he owned one half of the boat. Sold both halves eventually for nine thousand dollars; asked at first ten thousand. Capt. Cummings had only three thousand dollars. ' Finally, Capt. Cummings was to pay ou the return trip, nine thousand dolíais. On his return he paid six thousand dollars. Capt. Cummings said he had left his money, two thousand dollars, with Kissane.

Kis-sane promised to pay the two thousand dollars, and promised to loan Capt. Cummings one thousand dolíais, Kissane offered a draft by Cole, on Boston, which witness did not take. Witness loaned seven hundred dollars to Capt. Cummings, and paid for him a bill, for stores, bought of Cassilly, for three hundred dollars. When the purchase of the boat was first made, Capt. Cummings said he had bills maturing for ten thousand dollars. The boat was four and a half years old; carried six hundred and forty tons.

Witness shipped on board the boat the fourth or fifth of .Tan-uary. 24 hogsheads of bacon; 87 barrels of whiskey; 123 barrels of pork, and other freight. Witness recommended Kissane to ship on board the Martini Washington, who said he would if he could. Afterwards Kis-sane told him the Capt. had refused to take any more freight, and that he had shipped ou another iKiat fifty hogsheads. Capt. Pierce—Was on the levee when the cargo was being put on board the Martha Washington. Saw her at sun-set the day she left; appeared to be about half loaded.

The vessel measured by enrolment 290 tons, but she actually measured more than that. He thinks she had not more than 350 tons on board. Does not recollect whether any persons. at the time he saw the l>oat. were engaged in loading her. A boat loaded in the stern would elevate the prow of the boat. He thinks the boat was worth seven thousand dollars. Nosing of the boat is that which is a prominence on a level with the lower deck. • Lowel Fletcher— Shipped on board the boat 104 barrels of whiskey, amounting to about 15 tons. Saw a great deal of freight on the landing about 3 o’clock of the day the boat left.

Franklin Calliday—Was at Cincinnati, January, 1852. Went to Louisville; the Martha Washington was then there, the 8th of January; left Cincinnati the 7th. Witness went on board the Martha Washington, at Louisville. Saw ('.’apt. Northup in the cabin. Capt. Cummings said he did not go on as a fog was rising on the falls. The boat was not fully loaded. Cummings said he waited for insurance—that he had about two-thirds of a load. Lewis Clawson—Witness in 1852 lived in Cincinnati, was secretary of an insurance company. On the 9th of January, 1852, insured $8,000 worth of merchandise on board the Martha Washington.

Did not describe the kind of merchandise. The papers being called for: 1st. Bought of Lyman Cole articles amounting to $6,359.50. 2d bill—bought of Smith & Kissane $248.80. Bought of -, 13 casks of brandy, &c., $708.80. The bill of lading was in the handwriting of Kis-sane & Smith,, beef and pork packers, manufacturers of candles, also of lard oil. The color of the ink of the signature of the bill of lading, was different when he first saw it from what it now is. An open policy—thirty-three insurances—all except the above, of business in which the insured were engaged. Hr. Carter—Lived in Cincinnati' in 1852.

Was agent for Fireman’s Insurance Company, —also the Etna of Hartford. Mr. Stephens insured six boxes of merchandise, $5,361. Witness took the insurance. After the loss of the boat, Stephens called; witness told him he must produce the invoices and bill of lading. Copies were afterwards furnished, but not the originals, purporting to be of goods purchased from John Edwards, $5,361. The bill of lading was signed by Capt. Cummings. Witness inquired of Stephens when Edwards had gone South. Stephens referred him to Kissane and Capt. Cummings.

Kis-sane said he had known Stephens a good while, and that he was an honest man, and all right. Capt Cummings said about the same thing. Witness did not pay the amount of insurance. Cole issued an attachment, and summoned the company as garnishee. It has expended money in procuring testimony, &c. Burton was employed, witness under-stood, to attend to the business. On the cross-examination, the witness said he believed several insurance companies agreed to pay something to look up evidence. The company in which witness was engaged, paid $500.

If the same amount were paid by all the companies, would make the sum of $3,000. .Tosiah Lawrence, president of the company, was rather opposed to this arrangement. Did not think that Kissane could have committed the fraud. Mr. Love—Shipped on board the Martha Washington merchandise to the amount of 9tons. William Emerson—Shipped 100 barrels of pork, making Í5 tons. Mr. Leahmer—On 200 barrels of lard oil. amounting to 30 tons, advanced $4,709.65. It was destined to Philadelphia. Lard manufactured by Smith & Kissane, January, 1.852, $4,400. On candles, &c., witness also advanced.

Charged five per cent, for advances. The bill of lading was signed by Nicholson. Mr. Mack—Was agent for the Insurance office of Hartford, and made insurance for merchandise on board the .Martha Washington for Stephens, 76 cases of boots, shoes, and hats, $3,369.50. Stephens said he bought the goods from Lyman Cole. Had invoices which witness said were unnecessary. After the Martha .Washington was burnt, Stephens called to know what papers were necessary to claim the insurance. He had certified copies of the invoice and bill of lading. The originals were required, and they were afterward produced.

Invoice of goods shipped, amount $3,372.75, 7th Jan’y, 1852. Stephens referred to Cole, and he spoke well of him. Zenas Knowlton—Lives in Hamilton county. Knows Lyman Cole. Keeps a tavern. Saw Cole and Cummings at his house in 1851; thinks it was in the fall; might have been in 1S50. Had seen Capt. Cummings on the road to Oxford. Saw a good many people travel on the same road. John Shultz—In January, 1852, lived in Cincinnati. Shipped on board the Martha Washington 203 barrels of flour.- Went on board the boat on the evening of the 7th January, 1852. The guards of the boat were two feet out of water.

Passengers were at supper. Saw but very little freight on the shore. 25 or 30 boxes were on deck, near the social hall. Does not recollect whether there was a wharf boat or not, near the Martha Washington. Samuel W. Smith—Witness is of the firm of Smith & Co. They shipped on board the Martha Washington 100 barrels of whiskey. John S. Brown—Lived at Cincinnati in 1852. He shipped- on the Martha Washington 56 barrels of lard oil; 25 boxes of cheese; 2 hogsheads of bacon sides, amounting to 3 tons. Witness saw Chandler; requested National insurance; 4 boxes of revolving pistols, &c. Mr.

Ray—Shipped 264 barrels of red oil, and from 370 to 80 barrels of oil, not red. Mr. Page—Lived in 1852 at Evansville, Indiana. The Martha Washington,, in descending the river, landed at his wharf, and the following articles’ of freight were put on board of her there: 37 bbls. of lard; 25 bbls. of turnips; one hundred pounds to a barrel; i)42 sacks of corn; 140 bbls. of -, 2*4 bushels in each; 332 sacks of com. Bills of lading signed by Nicholson as clerk. Names on two bills of lading. Smith and Kissane erased, and Nicholson's name inserted. Samuel P. Hibbart—Witness is a steamboat agent.

Engaged freight for the Martha Washington. In 1852 lived in Washington. Capt. Cummings told him not to engage any more freight, as he had engaged a large amount. Witness engaged 525 tons, one hundred barrels not shipped. It is usual for captains to engage freight. Kissane said he had shipped 600 boxes of candles; 600 boxes to another person. Mr. Morse—Lives in Cincinnati. Was secretary for National Insurance Company. Was applied to for James W.' Chandler. Insured $2,200 worth of merchandise on the Martha Washington. At the time of application no invoice was presented.

But when payment was ■ claimed after the: loss of the Martha Washington, certain papers were in the hands of Chandler, who was arraigned before the commissioner, but discharged by him. Since that time he has absconded. He proposed to prove copies of the papers he took with him, which was admitted. Chandler said he bought these goods from Crane, living on Fifth street, as a boarder; no such man is known to have lived there.

Objection being made by defendants’ counsel, THE COURT held that before a person, not a party on the record, can by confession charge the defendants, he must be shown, by prima facie evidence, to have participated in the conspiracy. On the cross-examination of Morse, he said that Chandler did not speak of Crane as a fixed resident in Cincinnati. Mr. Raul came with Chandler to the office. Raul is a respectable merchant. Chandler brought Southgate afterward, who gave an affidavit that he saw the boxes that were shipped by Chandler.

The witness states that the fund of five hundred dollars paid by his company, was not contributed to aid in a criminal prosecution. Mr. York—Identified a document. Mr. Brown—In January, 1852, lived in Cov-ington. Stated no fact of importance. Mr. Duval—In January, 1852, witness lived in Memphis. The 13th of January, the Martha Washington landed at Memphis, and put off there 13 barrels of lard oil, and 40 boxes of candles. Nicholson, the clerk, left them in care of witness, until he should call for them. The boat was burnt sixty. odd miles below that place. After the boat was burnt.

Nicholson called for the articles, and sola them to witness for $636.70. Paid cash $1)0, and a note for the balance, which was cashed by a broker in the town. Doet. L’Hommedieu—In 1852 witness resided in Cincinnati. Went to the Walnut Street House in 1851; Cole was boarding there, and Nicholson was there. Kissane was there with them frequently. Witness says Kis-sane came to see them. Was not personally acquainted with Cole. Cole and Nicholson were said to be sporting men, and his attention was attracted by Kissane, a business man, being with them. Charles Floumagler—Lives in Kentucky— deals in boots and shoes.

Witness was at Cincinnati in the winter of 1851. He bought of Chapin’s, red sole leather, 17th Nov., 1851, 150 boxes of boots. He purchased between fifty and a hundred sides of sole leather. He bought no kip boots; wanted two or three eases of them. Mr. Murphy—Lives in Meigs county, Ohio. Was at Chapin’s store, 1st Nov., 1851. Called to examine their stocks; he wanted different kinds of articles. They had some red sole leather; their stock was not large. Witness purchased shoes of others. Mr. Ward—Proves a bill of lading. Between the 1st and 5th of January, 1852, Mr.

Dupler called to purchase 10 casks of brandy, and afterwards he bought five more. The first he paid 65 cents per gallon; for the last, 25 cents. Two of the casks of brandy were returned; could not be received on the Martha Washington. Kissane paid for 13 casks $578.90, in soap and candles. The bills for the candles were in Kissane's handwriting. The brandy was directed to be sent to the Martha- Washington. The two casks were returned by the drayman, who said that the boat would receive no more freight. Mr.

Casselly—In 1852, the Mechanics’ Fireman Insurance Company, at Madison, insured an invoice of goods bought of Lyman •Cole, on 1st January, 1852, for 13 barrels of brandy, $1,792.25. After the boat was burnt application was made at the office for payment, and the amount was paid. On the cross-examination witness says he does not know of any arrangement with the insurance offices in Cincinnati, to pay Burton any money. Being again examined in chief, the witness said; a short time after the insurance was paid, he felt suspicious that something was wrong. Lawrence was then alive.

Company had a meeting, agreed to pay persons to investigate the matter. Mr. Ross and Mr. Scarborough were employed. James Chew—In January, 1852, witness was agent for the Utica Insurance Company. Nicholson insured on his for five hundred dollars, and six hundred dollars on two boxes of merchandise. Mr. Laws, who insured for Nicholson, said the boxes contained ladies’ cloaks. Mr. Cranis—Witness in 1852 lived in Cincinnati, and carried on the leather business. He was a creditor of Chapins. He held their notes for $832. He was through their establishment about the time they sold to Cole.

White sole leather is tanned with ehesnut-oak bark, and it is better than red sole leather. There was a good demand for white sole leather in 1851-2. Did not know of two hundred rolls of sole leather in the city unless Taylor had them. When he went through the establishment of Chapins, did not see any white sole leather. He saw about 20 dozen of sheep skins. On a cross-examination—Chapins gave their note, payable in 60 days: said they had insurance on a large shipment. Their establishment was more extensive than any other in Cincinnati.

One hundred and fifty men were employed in the factory, beside outside laborers. J. K. Thomas—Witness shipped 20 barrels hams on board the Martha Washington. Mr. Zimmerman—Lives in Lexington, Kentucky: is in business there, and makes his' purchases in Cincinnati. In 1851, bought some small bills of Chapins. The next spring bought from them 100 cases of boots, and 10 cases of a different quality. But in Lexington such articles could be purchased lower than in Cincinnati. On the cross-examination. witness said the stock of the Chapins did not appear to be heavy, and in the spring of 1852, it was very small.

Burton called on witness to know what he could prove. John H. Ballanee—Lives in Cincinnati. Tans sheep skins. There was a demand for them in the winter of 1S51-2. 1500 dozen of sheep skins; never saw so many together. In- a bale there are from 200 to 240 pounds. Wm. Parvin—Witness • lives in Cincinnati, and is engaged in the trunk business, which requires the use of sheep skins. In 1851-2 several such establishments in tiie city who use sheep skins. Never saw a lot of 100b dozen of sheep skins at one time. Samuel J.

Raney—Has been engaged in the leather business fifteen years, in December, 1851, and January, 1852, the market was heavy. White sole leather was very scarce. Two hundred bales of white sole leather would require 1200 sides. Witness had no knowledge of that amount of —hite sole leather in Cincinnati. Red sole 'eather is worth 1(> cents; white, 20 cents. Mr. Thornton—Is a manufacturer of sheep skins and morocco; calf skins. In 1851-2 knew no one who had 1200 dozen of sheep skins. Mr. Ivesler—Witness is a leather dealer and manufacturer of leather. White and red in Cincinnati and New York.

Two bun-dred bales would be a large amount to have in the fall. Witness never saw two hundred dozen sheep skins at once. He has known the firm of Chapins for some years. Mr. Catón—In 1851-2, was reporter to the chamber of commerce. 'look an account of all the freight, and recorded it. Such a report THE COURT held was not evidence unless sworn to. John Sheier—Witness is a map publisher in Cincinnati. He shipped on the Martha Washington three boxes of charts. Nicholson inquired if he had not better send on board of some other boat. He said that he was part owner of the boat.

He said he had invested every thing he had. Said he was insured, and would make a spoon or spoil a horn. Nicholson said he owned the bar. Mr. Crammond—Witness was on the river, in January, 1852. about one hundred miles below where the Martha Washington was burnt; stopped at the place Saturday night; next morning went on board the wreck. On Monday went on board as wreckers. Commenced their work on Tuesday, and continued Wednesday. Pound on board, oil. soap, grease, oil kegs, and butter. Pound no rolls of leather, or sole leather; no pistols, The bow of the boat was lying up the stream.

Witness asked the mate how the boat took fire. He said he supposed it must have caught in the brooms piled on the larboard side of the boat from the chimney. The deck was burnt. Witness found 20 bbls. of pork; 50 kegs of lard;' five or six barrels of flour: five or six kegs of butter: five or six barrels of whisky; some soap grease. Not one of the barrels bore the marks of fire: nor the sacks of eornwhich they found.Holland ordered the wreckers to desist, but they refused, and said he had no right. The other party of wreckers,—for there were two parties.—carried away the property, with a good many threats.

Chandler made his appearance at the wreck, and claimed to be agent, and exhibited some papers. He remained two or three hours, and then left. Chandler claimed no property; only claimed to be agent. Mr. Burdell—Witness lives in New York; is a part of the firm of R. H. Burdell & Co. Messrs. Smith & Ivissane shipped to the-company 300 barrels of pork. Witness proposed he should ship it at S12 per barrel. Said they had shipped on board the Martha Washington. Insurance was taken at $15 per barrel. Worth that at- New York. Mr. Taggart—Lives in Arkansas, near the wreck. Pound on the boat, whisky, pork, oil, &c.

Nicholson requested witness to take possession of the property saved from the wreck. Chandler and Cummings came together in a skiff. Chandler took charge of the property for New Orleans. Heard Capt. Cummingscall Chandler byname. The property was to be left with a man called Jordan at New Orleans if Chandler should nor be there. On his cross-examination, the witness says. Cummings called Chandler by name. Heard nothing of any other individual called by the same name. Did not know Chandler. He .was to reclaim the property wherever it could be found. McNeal was to go with Chandler.

Cummings sold some of the pork, which was not good, the brine having leaked out of it. He sold it at $1.1 per barrel. It was seven or eight (lays after the burning before Capt. Cummings came to the wreck. Mr. Wheeler—Lives in Boston. Secretary of an insurance company. Took a risk on board the Martha Washington, through the •instrumentality of James Lee & Co. Property insured. 250 barrels of mess pork. 100 tierces of oil. Total. $5.347 50,—for Lyman Cole. The bill of lading or invoice was in Kissane’s handwriting. Shipped also, 167 barrels mess pork:' 6th Jan. Smith & Ivis-sane.

S3 barrels mess pork. 100 tierces of lard. Papers in the handwriting of Ivissane. Mr. Lee accepted: papers were handed over when the insurance was paid. M. L. Neville—In 1852. witness was secretary of Fireman’s and Mechanics’ Insurance Company. Insured for Capt. Cummings. $2.-500. payment made by Gasselly to McGregor. Paid some to Ivissane. Cummings said lie lent the money to him. This company refused to contribute any thing for the investigation of the case. Mr. Davenport—Lives in Boston, and is a manufacturer of boots, and shoes, &c. Received a letter from Capt.

Cummings, dated 15th October, 1851, for certain cases of boots, &e. 150 dozen sheep skins were insured by witness for Filley & Chapin; loss paid to the acceptor of their bill. The letter stated the loss was total. Amasa Chapin was author-ised to collect debts due Filley & Chapin. Mr. Tabor—Witness lives in New Bedford, Massachusetts. On the 8th of January, 1852. he received a letter from Lyman Cole, dated at Cincinnati, requesting an insurance on goods on board the Martha Washington, to about 82.000, on 100 tierces of lard; the bill of lading was signed by Lyman Cole, but was in the handwriting of Kissane.

On the 20th January, witness received a letter from Cole; wrote another letter dated Oxford, complaining that he had received no answer. Mr. Riley—Witness saw Nicholson a short timé after the boat was burnt, at New Orleans. He asked McDano. captain of a steamer, to bring some freight down from Memphis, on the bow of the boat. Witness said, on his cross-examination, since 1832. he had been on the river as pilot and captain. He stated that the Martha Washington carried a large amount of freight when loaded down to the guards, and, in addition, could carry one hundred and fifty tons. John S.

Tappan—Lives in Brooklyn. Was vice president of Union Insurance Company in 1852. Mr. Kemble came to his office, 12th January, 1852, and applied for an insurance; said he had $10,000 to insure, and witness concluded to take the risk to New Orleans. 26,-000 pounds of white sole leather, 200 rolls, in his own uame. He held his hand over the names of Filley & Chapin and Lyman Cole. Kemble said he did not insure to New York, because the freight might be sold at New Orleans..

On the 16th January. 1852, saw in the Courier and Enquirer of New York, that the George Washington had been wrecked, and that the Martha Washington had been burnt. On the 31st of January, 1852, received a letter from Kemble, stating the loss of the Martha Washington. A despatch of the loss from Capt. Cummings was received by Kemble, and an inquiry was made whether they would pay; the witness answered no. Kemble stated to witness once his interest in the cargo was equal to his insurance. At another time he said it was not. and that some one else was concerned with him.

He never showed to witness that he was entitled to this property, except the invoice covering the names signed. Cole had an interest, and another person. Kemble refused to state the other name. Said he would write to Cincinnati: but did not. On the cross-examination, witness said the articles invoiced were, as appears from the paper, 26.000 pounds of sole leather, and 1.600 dozen of sheep skins; The writing was rather a bill of sale than a consignment. Eliza Martin—Was chambermaid on board the Martha Washington, and was in lied in the last berth but one in the ladies’ cabin. Late at night heard the cry of fire.

Went to the folding doors; saw fire in the gentlemen’s hall—inside of it. Witness went to the hurricane deck. Carswell helped her from the deck to the laud. The boat was landing when she got off. Mr. Whitney—In January, 1852, witness was secretary to the Madison company. Agent of that company at Louisville took a policy. A. Chapin took the insurance; 200 cases kip boots, signed Filldy & Chapin. More than a month after the loss. Mr. Chapin called at the office in Madison. The amount of the insurance was $4,200, which witness did not pay. Mr.

Jones—In New York, in January, 1852, witness was an underwriter in the Atlantic Insurance office. On the 7th of January, 1852. took an open policy—300 bbls. of pork. $4,500; 264 bbls. of pork. Smith & Kissane shippers of the first, Ray of the latter. J. B. Wilson—In March, ’51, witness was assessor. Stock of Filley & Chapin assessed at $:’>.5()0. ' Mr. Clark—Lives in Cincinnati. Knew Fil-ley & Chapin. Made them temporary loans in the fall of 1851. Made to them weekly loans from one to three hundred dollars. He had difficulty in collecting the loans, &c. Mr.

Lane—Mate of the steamboat Martha Washington at one time. Slie would carry 550 tons. Mr. Scarborough—Lives at Cincinnati. Had two invoices in his charge, as counsel for investigation. Insurance on the invoices amounted to $5,458. The Chapins said Cole was interested. Had frequent interviews with one of the Chapins, but received no explanations with which witness was satisfied, Mr. Shepard—Knew Chandler in Covington, Was a sportsman. Saw him in March, 1852. in New Orleans. As witness was walking the street Chandler came out of a- house to see him. Stated that he was on board the Martha Washington.

Reached the land by a line on the stern of the boat. Said that he had been employed by Capt. Cummings, at $5 per day. Witness said that Chandler had consulted him as counsel, and that lie was not bound to disclose. Mr. Morton. Dist. Atty.—Read a copy of a letter from Kissane to Nicholson, after liis arrest, and was about to state the circumstances under which the letter was abstracted from his papers, when the defendants’ counsel objected that such statements could not be received as evidence.

THE COURT—As the abstraction of the letter was a penal offense, for which the person taking it was liable to be indicted and punished if found guilty, the act of purloining the letter could not be received as evidence; but they said, as explanatory of the transaction. and to show the motive of taking the letter, they would hear the statements of the witness. Mr. Morton then proceeded to state that the original letter, the copy of which he had just read, was with his other papera, carefully tied up and left in his desk, the door of his room being locked, while he took a short ride in the country.

On his return he found that his papers had been handled—were in confusion, and the original letter of Kissane had been abstracted. And other facts were stated. conducing to prove that Kissane took the letter. In the absence of the witness the chambermaid probably entered the room. Mr. Taylor—Lives in Cincinnati. Has been engaged in the leather business, and carries on the largest establishment in the city. White sole leather is more valuable than red; the white is tanned with chestnut oak bark, and will weigh from eighteen to twenty pounds a side.

In the winter of 1851-2 white sole leather was scarce and in demand. Witness had' no idea that there was any thing like 200 rolls of that leather in the city, or that there were 1,700 dozen of sheep skins. On being cross-examined, the witness says that leather would sink when saturated with water, also sheep skins would sink under similar circumstances. Mr. Walker—Walker & Co. shipped on board the Martha Washington in 1852. 100 bbls. of whisky and 360 bbls., as per bill. Delivered the 7th January. Mr.

Polard—In January, 1S52, shipped on board the Martha Washington, merchandise, soap, candles, tobacco, % bbl. of butter, 2 doz. brooms, 4 bbls. rectified whisky. 2 do crackers. On 7th January, 1852. Copy of invoice: Kis-sane & Smith, 7th January, 1852. Amount $3,360. Destined to Freeman & Sous. ■ Mr. Carpenter—Lives in Cincinnati. Business, loaning money. Loaned money up to the time of the failure of Filley & Chapin. When they failed they owed him $250. Went to them and bought $750 worth of goods. Witness settled with Cole, who required him to buy as above. Mr. Pomroy—Lives in Cincinnati. Firm of Robins & Pomroy.

Engaged in shoe business. Manufacture in Massachusetts. In the summer and fail of 1S51 purchased 599 dozen sheep skins. Packed up at other places than their own house. White sole leather, witness thinks, was scarce in 1851. (A bill of lading read, signed by Nicholson. Shipped for Cooper 25 tons of goods.) Mr. Hubbard—Is the superintendent of the House of Refuge. Did the stitching of boots for the Chapins. In Nov. stitched 559 cases or dozens. In December. 257 doz. In October, 100 doz. Witness was at the Chapins’ store almost every day. Did not see large quantities of leather on hand.

On his cross-examination, witness said he never was in the cellar more than once or twice. Never in the two upper stories of the building. Mr. Chew—Capt. Cummings applied for an insurance on the steamboat Martha Washington for $4,500. in the name of Lewis Choate, which was taken by the witness. After the boat was burnt, sent Charles Ross as an agent to look after the interest of the insurance company. In February following, Capt. Cummings and Capt. Choate demanded the insurance money.

At the request of witness, certain deck hands were sent to the insurance office to give an account of the loss of the boat, who were examined in the absence of Capt. Cummings and Holland. Capt. Cummings referred witness to two deck hands on the boat who could give him information. They came and had a communication with the witness. A part of the conversation was in the presence of Cummings and Holland. Objection being made, THE COURT held that the statement of these hands in the presence of Cummings and Holland might be received, but that part which was made in their absence was not evidence.

The statements received as evidence had no material bearing in the ease. The reference to the deck hands was not such as absolutely to bind Capt. Cummings to whatever they might state. Mr. Lee—Lives in Cincinnati. Shipped on board the Martha Washington 100 barrels pork and 200 barrels of flour, amounting to 37 or 38 tons. Mr. Shellito—Shipped on board the Martha Washington 100 bbls. red oil, 50 bbls. soap— 25 tons. Capt. Irwen—Once commanded the Martha Washington. When loaded within six inches of her guards might have 450 tons. Loaded to the water. 500 tons. Carried 517 tons. Mr.

Cotral—Is a partner or agent in the City Manufacturing Company. Cole introduced Mr. Stephens, who bought brandy ot witness—a number of barrels—and paid fur it in staves. Mr. Catón—Is agent of the chamber of commerce, and his duty is to take an accurate account of all shipments. &c. He presented his record of entries made of articles shipped by the Martha Washington, He could not state positively whether he took the list ot’ articles from the agent of the Martha Washington for freight, or from the second clerk of the boat.

His memory being refreshed by examining the book of the agent for freight, but he could not distinctly recollect where he got .the items. THE COURT held that the entry of the articles could not be1 received in evidence. The witness was not able to say where he got the items, and mucli less could the court or jury decide this fact, on which the admissibility of the evidence rested. Mr. Carswell—Belonged to ■ the boat. He was asleep in a berth in that part of the boat called Texas. The bell being violently rung by Capt. Choate, the pilot, waked him. He heard also violent stamping on the hurricane deck.

This was about one o’clock at night. Witness saw the chambermaid and carpenter. Helped the chambermaid down to the lower deck, then the carpenter, and then the witness got down. Saw the fire extending back to the stem of the boat. The bank at which the boat landed was high. The boat was not fastened to the shore, the rope being frozen, and it soon floated from the shore. The Charles Hammond came along in about an hour. The passengers generally got on board of her, wet and almost frozen. The chambermaid, cabin boys, &e., got on board of the James Shillinger, which was going up the river.

The Are took place about five miles from the wood-yard. After the alarm of fire it was not more than ten minutes before the boat was in a blaze through the cabin No power could control the hands. Every one escaped for his life. Mr. Murray—Lives in Cincinnati. Is a drayman, and was, engaged in the same business in 1852. He rup from six to eight drays. He hauled for the Chapins. Hauled six loads for them. Load of sheep skins; red sole leather. There were four or five large loads of leather, and some boxes. Charles Gibson—Worked in the establishment of the Chapins about five years, including October, 1851.

The store was the corner of Pearl and Main. R. C. Lepper—In 1848 witness was clerk on board the Martha Washington. The witness recollects once she carried 585 tons. Ca.pt. Ross—Witness for many years has been on the river as captain or pilot. He was appointed agent for the underwriters, and proceeded to the place where the boat was burnt. It floated down the river about six miles from that place and sunk. Witness went on to New Orleans. Was referred to McGregor, at New Orleans, as the agent of the boat. He was twenty-four hours in finding Jordon, the consignee of the cargo. Nobody seemed to know him.

He was a dealer in pamphlets. He could give witness no information. Jordon said Chandler had nothing to do with the cargo. He did not know him. By the bill of lading Chandler was the shipper. Another bill of lading was to .Tor-don. The Martha Washington will carry 575 tons. Witness got no satisfaction from Jor-don. Mr. Wheeler-Worked nearly three years with the Chapins. His business was to put bottoms to boots. Worked in January, 1852, and he thinks, in February, for Cole. Worked for Filley & Chapin through the summer of 1851. In September boots did not sell as fast as they were made.

Never worked white leather in kip boots—put white sole leather in calf boots. Never saw sheep skins, except what were necessary for use. Mr. Carswell cross-examined—While at the boat, the impression was that the fire was accidental. Heard nothing to the contrary until about two months afterward. Capt. Cummings appeared like a crazy person, by his gestures and exclamations at the loss of lives. Mr. Remur—Remur & Sons, of Baltimore, made an advance for 600 boxes of candles, $2,360. Insured to New Orleans. From the insurance witness paid his advance, and the balance was paid to Kissane. Mr.

Wheatley—Was a clerk of Smith & Kis-sane. Witness accompanied the latter 'to swear to the shipment of 600 boxes of candles, and witness swore to it, not knowing any thing about it, and this was known to Kissane. After they left M’Guffey’, the person who administered the oath, Kissane said to witness he would never hear of it again. Afterward witness swore to the same fact before a commissioner. He was in the habit of getting bills of lading. He did not see Kissane tear out this bill of lading from the book. John Phillips—Worked as a boot bottomer for Filley & Chapin. Was in the store every week.

Used red sole leather and white. No more leather of either kind was necessary to carry on their business. Mr. Ford—Witness worked for the Chapins in September, 1851: left them the latter part of that month. Had worked for them three years before that time. Don’t know that he saw a large stock of leather while there. Mr. Butler—Worked for the Chapins three years ending in the fall of 1851. Hands pushed to send boots to Louisiana. There were three crimpers employed. Lewis Choate—Was pilot at the time the boat was burnt, and was on watch. While at the wood-yard he was in the social hall. Capt.

Cummings and Nicholson were there also. He remained there until the wood was in, and then ascended to the pilot-house. Capt. Cummings came up; stood in front of the pilot-house; turned round and came into the pilot-house. The boat had not proceeded more than five or six miles from the wood-yard before he smelt paint burning. Witness said to Capt. Cummings, there was fire. He ran down fronting the pilot-house. looking over the hurricane deck, and said. You are mistaken. Witness replied he was not. Capt. Cummings then ran down to the cabin deck. The mate (Hollandl was on the hurricane deck.

Said the wood taken on board was very dry. and said he would go down. Witness rang the bell violently and stamped; made a good deal of noise. In a very short time after smelling the fire (a minute or two) the fire burst out. Heard no noise in the social hall. The clerk (Nicholson) said he was sitting in the social hall, with boots off and sleeping. Did not know of the fire till witness gave the alarm. He then alarmed the passengers. The fire was bursting some of the windows. While the boat was at the wharf at Cincinnati. Capt.

Cummings introduced witness to Nicholson, and said he had promised the clerkship to him at the Springs, in Kentucky. Witness communicated to Capt. Cummings something he had heard said of Nicholson, not favorable. Capt. Cummings went to the person who had made the remark, and inquired of him about the matter, and. on his return, said he could ascertain no definite facts. Cross-examination—Capt. Cummings owed $1.500 in New Orleans, and was afraid the boat might be attached: and it was on this account that the title to the boat was vested in witness. Witness advised ('apt.

Cummings to leave Cincinnati late at night, as lie would gain more by doing so than by remaining. The boat was about three hundred yards from the shore when he iirst saw the flames. Thinks the Are could not have been extinguished. He had no suspicions at tile time that the boat had-been set on tire. Such a suspicion was not uttered by any one. Witness heard Capt. Cummings call Ross agent, and proposed to pay over to him the money, and show him the invoice of the sales of the freight saved from the- wreck. Ross said he did not feel himself authorized to receive the money. Witness called with Capt.

Cummings for the insurance on the boat. On the second call Chew said lie had received a letter from Capt. Ross, who advised the company not to pay. Witness saw the board of underwriters, and before them insisted that the parties on the boat should be arrested. A second time witness insisted that the parties should be arrested, in order to bring the matter to a full investigation. Mason charged Capt. Cummings with burning the boat. Shortly afterward when the Capt. met Mr. Mason at the Burnet House, he knocked him down, &c. The Underwriters said their object was to protect themselves. Witness did not think Capt.

Cummings was guilty of burning the boat. Since the above witness has seen some things which he did not like as to the boat being burnt—not in reference to Cummings. Where the chimney rests on the boiler tire may be communicated. In thinking there was something wrong witness referred to Nicholson. Mr. Favor—Witness came up the river on steamboat Breakland. Capt. Cummings, Capt. Choate, and Nicholson, were on board. All on board of the Emperor. Had some conversation with Nicholson, who said when the Are broke out in front, he first heard the alarm. Ran into the ladies’ cabin. Said the boat was well sold.

This was the 25th. 26th, or 27th of January. 1852. (Other witnesses who knew Nicholson, and who came up on board the said boat, said he was not on board.) ■ Mr. Chew—Holland said to witness, after the boat had wooded, and as she was rounding out. he went into the social hall, where Nicholson was sitting asleep. Sat half an hour. Went to the bar. drank something. After some time saw fire in a state-room where mattresses were deposited. Boat was turned toward the shore, was made fast, and the passengers were taken off. That he was left in charge of the wreck.

As property was taken on shore it was stolen; there was only one honest man there. The line was not made fast, and when the starboard engine ceased working the boat swung out into the river. On ins cross-examination, the boat was insured for $4.500. At the meeting of the company it was not intimated that the boat had been burnt designedly. Choate said that if there was fraud the defendants should be arrested. Nicholson remained in the social hall asleep, as Holland stated, until the-fire buret out. Mr. Traner—Lives in Cincinnati. Engaged in the shoe business in November and December, 1831.

In November bought seven bills, one a case of kip boots, of the Chapins. In making these several bills, witness was in the Main street store and cellar. Saw three bales of white sole leather. 29th November. 1851. Saw sheep skins in the upper rooms; five bales at one time. White sole leather-fluctuates. On being cross-examined, witness stated the cellar under the Main street store was dark, and that there might have been rolls of leather in the cellar which he did not see. There were 408 cases in the lower store or room. .1. A. Dugan—Was at New Orleans; saw Nicholson there.

Here an objection was made by defendants’ counsel, that after the boat was burnt the act was consummated, and that the confessions of one can not afterwards implicate the other defendants. And it was urged that the boat, to charge the defendants, must have been burnt with a fraudulent intent, to-injure the insurance offices. And it was insisted if the insurance companies resist the-payment of the money, and the defendants shall fail in the recovery, the offense charged would not be sustained. And to sustain the points urged, there was cited Whart. Ev. 6p L. 261-263; 8 Car. & P. 297; 1 Phil. Ev. 97; 1 Greenl.

Ev. p. 130. § 111; 3 Greenl. Ev. p. 88. § 94. The prosecution contended that the partnership or combination was not ended until the money was obtained, and cited 2 Starkie, Ev. 32; 1 Greenl. Ev. lllr 11 East, 584; [American Fur Co. v. U. S.] 2 Pet. [27 C. S.] 364; 4 Wend. 201. THE COURT held that it was not necessary to prove the burning of the boat to sustain the indictment against the defendants. If they conspired to burn the boat to defraud the insurance offices, the offense was consummated. In this we see the wisdom of the law. The-crime was committed before the perpetration of the overt act.

The punishment of the conspiracy to do the act makes the incipient stages of the offense as criminal, and by that means intends to arrest the consummation of the crime. The act of burning the boat is-evidence in the case, as it may, connected with other facts, show a conspiracy, or conduce to show it. But this is not a point in the evidence beyond which the prosecution can not go. The conspiracy may be inferred from attempts to obtain the money. The entire transaction is a matter for investigation, by which the innocence or guilt of the defendants may be shown. As the burning of the boat is not. necessarily,

an act to consummate the offense, it can have the effect only, like any other fact which conduces more or less to show the nature of the transe action. The witness may proceed in hisstatement. Mr. Dugan continued—Nicholson said that he had been in bed; heard a roaring; got up and saw the tire. ' A. Jones—Lived in Cincinnati in 1851-2. Is a relation of filley, the partner of Chapin, Filley died the 28th of October, in the year 1851. Mi-. Mason—Lives at Buffalo. Was at Cincinnati in the spring of 1852. Called on Nicholson to ascertain the facts of' the loss of the boat.

He said he got up about midnight at the wood-yard where the boat stopped to wood, and paid for the wood. He said that he sat down in the social hall: fell asleep, and was awaked by the ringing of the bell. At first saw nothing, but soon discovered fire bursting from the state room near the chimney. Witness wished a memorandum of articles,- which he could not give. Nicholson introduced witness to Capt. Cummings. who knocked witness down. Davis & Co.'s bill of lading, 11.477 lbs. Mr. Carson—Lives in Baltimore.

The insurance. according to the invoice.- one hundred dollars more than the amount and upwards of five hundred dollars above the amount advanced to Smith & Kissane. The surplus was paid over to them. Mr. Johnson — Witness is a confectioner. Was cook on board of the Martha Washington. When loaded at Cincinnati her guards were from six to ten inches out of water. Nicholson kept the Esculapian Springs; in Kentucky. He and Cummings agreed to purchase a boat, and the Martha Washington was purchased. The fire occurred in the room aft the chimney on the larboard side. The carpenter was in the same room with the witness.

The clerk’s office was on the starboard side—partition between the room and chimney. Nothing in the first room aft. Was awakened by the ringing of the bell, and stamping. Looked through the inner door—saw fire in the social hall. Waked the carpenter, who was sleeping in the same room. Passed through the social hall into the cabin. Saw Nicholson running (.towards the hall) in the cabin. Witness then went down to the lower deck—there saw Holland and 'Nicholson. When witness first saw the fire it was about four feet at its-base, and its blaze ascended to the ceiling.

Boxes were piled up on the larboard side of the social hall—on these boxes were piled several bun-dies of brooms, and of brown -paper. The fire was burning on this paper three or more feet. Nicholson kept quiet. ■ Capt. Cummings in great distress returned to the boat. He was without hat or coat, and used great exertions to rescue the passengers. A man could not live more, than two minutes in the water, the cold was so intense. The witness believes the fire was communicated to the boat from the chimney. Mr.

Heartwell—A bill of lading of Smith and Kissane. dated early in March, 1852, appeared to have been written only a few hours before, signed by Nicholson, was presented. When he first saw the bill the ink was blue and fresh; afterward it became black. Burton at this time was not known to the underwriters. Loaned Burton $2,000, indorsed by Dennison. Afterward made another loan' of $1,000. No interest has been received. The note has been twice renewed. Insurance offices agreed to take the notes without indorsements. In January, 1853, the company advanced $850.

Subsequently advances amounted to a little more than $4.000. Mr. Lee—Lives in Boston, and was engaged in the commission business in 1852. In pursuance of a request of L. Cole, witness, insured for him, for mess pork on board the Martha Washington, $5,000. Insured. 10 per cent, profit. Register of the Martha Washington given in evidence, specifying it to be 350 tons, &c. Mr. Burton—Lives in Ohio City. He became acquainted with two of the Chapins in 1846, within which year they failed. He knew L.

Filley, the partner of Rufus Chapin, and did business with them and continued to do business with them until the 3d December, 1851. He sold to them 160 dozen, of sheep skins, and deposited with them 182 dozen. A short time after witness returned home, Rufus Chapin came to Cleveland, and calling on the witness, said lie wished to procure a note discounted for six hundred dollars. Witness went with him to the bank, but could not procure the discount of the note. Chapin wanted to buy white sole leather. Witness went with him to a large leather dealer in Cleveland, but he would not sell on the terms offered.

Witness again went to Cincinnati about Christmas Eve. Called on the Chapins the next morning, and found Lyman Cole with them. He inquired for the 182 dozen-sheep skins which he left on deposit, and with the view of securing the Chapins for a note they liad indorsed for him. He applied for the sheep skins. Cole being in possession of the property. Cole said; Let Burton go to the devil with the rest of tiie creditors. Filley, and Burton, and Earl, witness says, made an estimate of the stock, amounting to the sum of $8.500. Witness saw all the Cha-pins at R. Chapin's, and also Kissane. Cole and Capt.

Cummings were at the Chapins. They had not 200 rolls of white sole leather. Saw a very small amount of that article. Witness also met Adams Chapin. The witness was greatly displeased that the bales of sheep skins which he left on deposit were not delivered to him, and threatened to bring suit. It was arranged that witness should be made secure through one of the insurance offices This was after the loss of the boat. The insurance in the name of Kimball was the office designated. Adams Chapin promised that the insurance papers should be ready. Having received the papers, witness went to Owego to Kimball.

Witness found him keeping an eating house near the railroad. He walked with him some distance and sat down on a log. Witness informed Kimball that he had come to get his •money from the Chapins, and if he did not ■pay him in fifteen minutes he would blow up the whole plot. Kimball said if he did he would blow up $60,000. Kimball agreed to meet him in New York and pay him his demand, if the insurance money could be obtained. But he failed to obtain the money. Witness again threatened, and said he would ■expose the whole transaction. Kimball said Cole was never yet caught. Some time after this he saw Capt.

Cummings, the Chapins, •Cole, Kimball, and others, and told them that •they had got to pay him. The Chapins complained that the offices would not pay. Witness asked for bills of purchase. Was informed that the bills had been burnt by Chaney, the purchaser from Cole, supposing they were of no importance. This was the forepart of June. Chaney was a brother-in-law óf L. Cole, and had bought out Cole, and 'was carrying on the business at the same place. Adams Chapin said Filley & Chapin had put $5,400 in the boat. Witn

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