On said 10th day of November last, R. Graham Frost called upon me, and I communicated to him the strange information I had received. While we were conversing on the subject Lyne S. Metcalfe, jr., counsel for contestant came into the office. I at once said to him, "Mr. Metcalfe, you must have your brief on the contest prepared, inasmuch as you have spent the summer reading over the testimony taken in the case." He replied, "Oh, no! I did not have the testimony. I had only the deposi tions of one day, and that was the day the city ordinances were introduced. I wanted to see if the ordinances were reported correctly." I stated what I had been given to understand, but he denied that he had had any of the testimony, with the exception of that taken on one specified day. Mr. Frost made a note of Mr. Metcalfe's answer. On the following day Notary Kraft called on me on some business and I inquired of Mr. Kraft if it was not the fact that Mr. Metcalfe had all of the testimony since it was written up. He was very reluctant to answer, and noticing this, I resolved to press the inquiry. He finally told me that before he had gotten out of bed he received a letter from Mr. Metcalfe, requesting him to be sure to see him before he would call on me. He subsequently said, "I do not propose to lie for anybody. The fact is that Mr. Metcalfe had, after it was all written up, all of the testimony, with the exception of that of one day." I then stated that Mr. Metcalfe had denied that such was the case. He replied that he could not help that; that he had two letters in which he acknowledged the receipt of much of the testimony, and other letters requesting that more be sent to him, and that all of the requests of his letters were complied with. The notary further stated that Mr. Metcalfe ought to have known whether it was right or wrong for him to permit the depositions to be out of his custody; that Mr. Metcalfe insisted on having them, and that he complied with his demand. The notary further stated that he wrote much of the evidence from his notes during his summer stay in Kansas; that while absent from the city Mr. Metcalfe continued writing for more of the testimony, and it was sent to him. On being further interrogated, he said he had often seen the testimony lying open on the desk of Mr. Metcalfe, and had seen his office boy handling it. He did not know who else may have handled it, but it lay exposed, and any one going in or out of the office could have access to it. I asked Mr. Kraft if any alterations had been made, and he said that Mr. Metcalfe had written on the margins, and had made corrections in names and localities, and had erased a portion of Dr. McCarthy's evidence, but that 1 e had reinstated the latter. This affiant states that it will appear from the testimony that a great portion of the contestant's evidence consists of misspelt names and places of residence; that it was the purpose of contestant to take advantage of typographical errors to disfranchise voters; that it appears from the affidavit of Notary Kraft that he permitted Mr. Metcalfe to write the names and localities as he saw fit, and his changes were adopted; that such changes so permitted to be made address themselves directly to the merits of the contestant's case, as it puts it within the power of Mr. Sessinghaus's attorney to so spell the names of persons and write the numbers of their residence as to place them outside of their proper election precincts, and thus disfranchise voters in sufficient numbers to secure the election of Mr. Sessinghaus. STATE OF MISSOURI, City of St. Louis, 88: FRANK J. DONOVAN. Sworn to and subscribed before me by the said Frank J. Donovan this twentyeighth day of December, A. D. 1881. Witness ny haud and official seal. [SEAL.] GUSTAVUS SESSINGHAUS, CONTESTANT, V8. R. GRAHAM FROST, CONTESTEE. In the matter of contest in the third Congressional district of Missouri. R. GRAHAM FROST, being duly sworn, on his oath states that : I was present at the office of Donovan & Conroy, in the city of St. Louis, on the 10th day of November, 1881. Mr. Donovan informed me that he had heard that all the depositions given on behalf of Gustavus Sessinghaus in his contest had, since they were taken by Notary Kraft, been in the poss'ion of his counsel, Lyne S. Metcalfe, jr.; that also all depositious taken on behalf of myself had, at the request of Lyne S. Metcalfe, jr., been delivered to him by Notary Kraft. We were conversing about this extraordinary proceeding when Lyne S. Metcalfe, jr., entered the office. Mr. Donovan said to him, "Mr. Metcalfe, you must have your brief on the contest already prepared, for I understand that you have during the summer read over all of the testimony." His reply was, "Oh, no! I did not have the testimony; I had only my depositions of one day, and that was the day the city ordinances were introduced. I wanted to see if the ordinances were reported correctly. I made a note of this answer just as it fell from Mr. Metcalfe's lips; and when Mr. Donovan talked with him again about having understood that he had had the testimony, he positively denied that such was the truth. STATE OF MISSOURI, City of St. Louis, 88: R. GRAHAM FROST. Sworn to and subscribed before me by the within-named R. Graham Frost, this twenty-eighth day of December, A. D. 1881. Witness my hand and official seal. [SEAL.] C. D. GREENE, JR., Notary Public. EXHIBIT A. ST. LOUIS, Aug. 4, 1881. I re FRANK KRAFT, Esq., or HIS BROTHER: I have just returned from the North and want more manuscript to work on. turn by messenger the testimony taken Feb. 1st, 2d, and 3d. Please send me by bearer (or, if you are not at home, by messenger) as soon as possible the testimony for six or eight days following the 3d of Feb. I don't know what dates they may be, for a Sunday probably intervenes. I guess you had better send me 8 days' testimony, for I want to work pretty steady on it now. Yours, truly, EXHIBIT B. L. S. METCALFE, JR. Mr. CRAFT: ST. LOUIS, Aug. 8, 1881. DEAR SIR: I return you testimony taken Feb. 4th and 5th. I want to retain that for Feb. 7th for a few days, as I have a copyist at work copying names from it. Will return it when I return next batch. Please send me testimony for at least six days, and, if you can, eight days. I finish it up so fast that it will keep me sending all the time. And oblige Yours, truly, L. S. METCALFE, JR. EXHIBIT C. ST. LOUIS, Aug. 18, 1881. Mr. CRAFT: I send you by messenger the testimony taken Feb. 7, 8, 9, 10, 11, and 12. That is all I have received, except that for Feb. 14. The latter I am on, and will retain until I returu next batch. Please send by bearer, or as soon thereafter as possible, testimony for the following eight or nine days; that is Feb. 15, 16, 17, 18, 19, 21, 22, and 23. And oblige Yours, truly, When does Frank return? GUSTAVUS SESSINGHAUS 18. R. GRAHAM FROST. Contest in the third Congressional district of Missouri. METCALFE. FRANK KRAFT, of St. Louis, Mo., being duly sworn, on his oath, states: I was the notary public selected by Gustavus Sessinghaus by and before whom the depositions for him in the above-entitled cause were taken. Said testimony was taken at the office of Lyne S. Metcalfe, jr., esq., southeast corner of Fifth and Olive streets, in the city of St. Louis, and was transcribed by myself and assistants at my office on the northwest corner of Fifth and Olive streets, and at my residence, 2635 South Seventh street, in the city of St. Louis aforesaid; also a portion of the contestee's testi mony was by me transcribed near Chanute, Kansas, to which latter place I took my notes during the last summer, and continued the transcription of the testimony in this contest. Before the close of taking this testimony, being some time before April 22d, 1881, I spoke to both counsel, asking them to allow me the use of the several memorandums from which names and addresses had been read during the course of the depositions, as I desired to correct the spelling of names of persons and of localities. On or about the - day of, 1881, after the close of the actual taking of evidence, I again renewed my request, this time in writing, to the agent of Mr. Sessinghaus, and in answer thereto was waited on by Mr. Metcalfe, of counsel for Mr. Sessinghaus, who informed me that he would save me that labor-the labor of going over his memorandum-that he would like to take the testimony as transcribed, look over it, and correct the spelling of proper names. What my answer was to this proposal I do not now remember; at any rate no testimony was delivered to him, because none had at that time been fully completed (it having been dictated by me to several amanuenses). As I was not versed in regard to the rules which govern depositions taken in Congressional contest cases, I made it a point to see Mr. Pollard, the other of Mr. Sessinghaus's counsel, and from him received substantially these words: "I don't see what he wants with it; I am sure I don't want to touch it; let him have it if he wants it." Thus counseled by those whom I thought very well able to take care of their case, I permitted Mr. Metcalfe from that time on, as rapidly as the manuscript was turned in to me by my clerks, to have in his possession, for review and correction of the spelling of proper names, all the manuscript of the contestant's case, with the exception of one day in rebuttal, which I showed him, but which was not examined by him. I wish again to state that in permitting this inspection of my record by the counsel for the contestant, I was acting under the impression that neither of the counsel for the contestant would ask me to do that which would in any degree prejudice their case. From time to time, therefore, in pursuance of his request, I gave to Mr. Metcalfe the several depositions taken on behalf of the contestant; upon returning these he would receive others in their stead. While I was out of the city during the summer he wrote me frequently to my residence, requesting that depositions following those already inspected by him be sent him. These requests were also complied with in so far as the testimony requested by him was ready for review. Some of the letters referred to above calling for such depositions I found on my return to this city, and I append them hereto, marked Exhibits A, B, C, respectively. Others to the same purport were destroyed or mislaid. I called frequently at the office of Mr. Metcalfe, and saw the depositions I had given him lying on his desk and tables, and saw his office-boy handling them. They were open and exposed, and any person could have access to them. I did not object to this for two reasons, the first being that I deemed him as much interested as myself in preserving their integrity, and the second reason being that I intended to go over every page of the depositions after they were returned to me by Mr. Metcalfe. On or about the 10th or 12th of November, 18-1, when I had completed my revision and was about to forward the testimony to the clerk of the House of Representatives at Washington, I received a note from Mr. Metcalfe early in the morning, before 1 was out of bed, asking me to please call at his office on that day at a certain hour named, and to be sure and do so before calling at the office of counsel for Mr. Frost. I did so call at the time stated, and found Mr. Metcalfe absent. I waited a little while. I again called during the day, but was still unable to find him in. As I was very anxious to complete the work and ship the testimony on to Washington, I thereafter called on Mr. Donovan, of counsel for Mr. Frost, with a view to procuring a settlement of contestee's bill, and was then asked directly by Mr. Donovan if Mr. Metcalfe had not had all the depositions taken by the contestant, and I then made true answer to his question. The testimony as transcribed by myself and assistants was very voluminous, being some 16,000 pages if reduced to ordinary long-hand writing, but I exercised especial care to compare the depositions as returned to me by Mr. Metcalfe with my original short-hand notes, and thus was enabled to see what changes had been made in the manuscript. The only alterations so made by Mr. Metcalfe that I discovered, aside from the mere correction of proper names, was found in the testimony of one Dr. McCarthy, a witness for the contestant, and these alterations consisted in simply erasing certain profane words frequently made use of by that witness in giving his testimony. When that witness was yet in the room, after giving his testimony, counsel for contestant requested of me, as did also the witness, to leave out such profanity, but counsel for contestee positively refused to allow this. I then stated to the witness that I would not write the objectionable words in full, but would simply indicate them, and in this manner they appeared in my manuscript. I was therefore surprised to find this language erased, and of course, immediately reinstated the language as given. With this single exception, I do not now recall that any other changes were made in the testimony aside from the simple correction of proper names, and these corrections in many instances were made in the margin and in ink, and were not erased by me; others, in pencil, will also still be found in the margin. I will state also that had the request been made of me by counsel for the contestee for a like privilege to inspect their depositions, acting under the same ideas I should have suffered them to do likewise; but such request was never made, and no single page of testimony taken in this case was in the possession of or examined by the counsel for the contestee, Mr. Frost. Inasmuch as it would seem from the course pursued by myself in permitting this testimony to go into the hands of Mr. Metcalfe, that I was very negligent of my duties as a notary, I desire again to add that I hold myself blameless in this matter, having trusted to the opinion of counsel for contestant, who I felt assured would not adopt or countenance a course of procedure in reference to their testimony which would in any manner prejudice or imperil the case they were seeking to establish. FRANK KRAFT. STATE OF MISSOURI, City of St. Louis, 88: Sworn to and subscribed before me this twenty-eighth day of December, A. D. 1881. Witness my hand and official seal. [SEAL.] C. D. GREENE, JR., Notary Public. Before the House of Representatives of the United States, Forty-seventh Congress. GUSTAVUS SESSINGHAUS, CONTESTANT, V8. R. GRAHAM FROST, CONTESTEE. In the matter of contest in the third Congressional district of Missouri. Now comes Gustavus Sessinghaus, contestant, and, by his attorney, H. M. Pollard, files the following affidavit: In the matter of the motion to suppress depositions of contestant. SESSINGHAUS V8. FROST. Before the Committee of Elections, Forty-seventh Congress. I, James Walter Metcalfe being duly sworn, on my oath say that I am 17 years old; that I have always lived in the city of St. Louis; that for some time past I have been acting as clerk and office boy for Mr. L. S. Metcalfe, jr., attorney for Gust. Sessinghaus; that at various times during the months of Sept. and Oct., 1881, Mr. Frank Kraft, the notary in the case of Sessinghaus v. Frost, came to the office of said L. S. Metcalfe, jr., bringing with him parts of the testimony taken for contestant in said case; that the said testimony, when received by Mr. Metcalfe, and when not being examined by him in the office, was placed and carefully kept in the safe in said office; that said safe is a strong one, to which the said Lyne S. Metcalfe, jr., only, and no one else, had access; that Mr. Metcalfe seemed to exercise the greatest care and caution in the keeping of said testimony; that he repeatedly cautioned me to be careful of it, and not allow any one to handle it; that while said testimony was in said office the said Lyne S. Metcalfe, jr., examined it for the purpose of briefing it; that no one in or about the office except Mr. Metcalfe ever handled or had anything to do with the said testimony; that the said testimony never was out of the safe in the absence of the said Lyne S. Metcalfe, jr., from the office, except at times when the said Mr. Metcalfe, having completed it, left it with me, to be called for by the said Frank Kraft, and at such times the said testimony was carefully wrapped up in brown paper and tied securely; that the said testimony never was open in the said office except while Mr. Metcalfe was present. Although I had nothing to do with said testimony except as aforesaid, I frequently saw Mr. Metcalfe making examination of and briefing said testimony; that I occasionally saw Mr. Metcalfe making pencil marks on the margin of said testimony, and that I never saw him use a pen in connection with said testimony, and that I never saw him make a change or erasure in the body of said testimony. I further state that it has been my duty and custom to remain constantly at the office of said L. S. Metcalfe, jr., from eight o'clock in the morning until five o'clock in the evening, and that from my own knowledge the said. testimony was kept with the greatest regard to its safety and integrity. J. W. METCALFE. Subscribed and sworn to before me this 3d day of January, A. D. 1882. [SEAL.] A. A. PAXSON, (Indorsed:) Sessinghaus vs. Frost. Affidavit in behalf of contestant. Affidavit of J. W. Metcalfe. Filed by N. S. Paul, el'k Com. of Elections. In the matter of contest for seat in 47th Congress from the 3d Congressional district of Mo. GUSTAVUS SESSINGHAUS v. R. GRAHAM FROST. Frank Kraft, being sworn, says he was employed by both sides in said cause to take the testimony; that after Mr. Metcalfe returned to him the testimony he carefully compared every sheet and page with his original short-hand notes of the evidence, and wherever the marginal suggestions of Metcalfe concurred with his said notes they were adopted by affiant and were by him written in in ink. That said marginal suggestions were in pencil except, probably in one or two instances. That there were no alterations made in the testimony while it was out of affiant's hands. That the only thing done to it were marginal memoranda, which were made in pencil, save in one or two instances, which affiant now thinks were in ink, and a pencil-mark drawn under or across the profane words of witness Dr. Justin McCarthy. The testimony was absolutely untouched in any way save as above stated. And affiant carefully examined each sheet as he did it up to forward to Washington; and when the same was placed in the box and shipped to Washington it was exactly the testimony given and nothing else. STATE OF MISSOURI, City of St. Louis: FRANK KRAFT. Subscribed and sworn to before me this 3d day of January, 1882. CHRISTOPHER P. ELLERBE, (Indorsed:) Sessinghaus vs. Frost. Affidavit in behalf of contestant. Affidavit of Frank Kraft. Filed by N. S. Paul, cl'k Com. on Elections. In the matter of the motion to suppress depositions of contestant. SESSINGHAUS 28. FROST. Before the Committee of Elections, Forty-seventh Congress. I, Charles M. Switzer, being duly sworn, on my oath say that I am an attorney at law in the city of St. Louis; that I have for the past eight months occupied the same offices with Lyne S. Metcalfe, jr., attorney for Gust. Sessinghaus; that I am intimately acquainted with the said Metcalfe; that though frequently during the months of August, September, and October, 1881, I observed Mr. Metcalfe making examination of papers which I thought from their size were papers in connection with the contested election case of Sessinghaus v. Frost, I never knew that the said papers were the official testimony in the said case; that I never handled or examined said papers; that I never saw any one handle or examine said papers except the said Metcalfe; that I never saw said papers lying around open or loose in said office except when in use by the said Metcalfe; that the said papers seemed to be kept carefully by the said Metcalfe, with no apparent chance of changing or tampering with them on the part of any one. I further say that during the periods above indicated it was my custom to be in said office during a large part of each day. I further say that I am a Demo erat. C. M. SWITZER. Subscribed and sworn to before me this 3d day of January, A. D. 1882. [SEAL.] A. A. PAXSON, (Indorsed :) Sessinghaus vs. Frost. Affidavit in behalf of contestant. Affidavit of C. M. Switzer. Filed by N. S. Paul, clk' Com. on Elections. |