The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1889-01-23

have important Significance mean the
words or phrase. "Or attempt 70 do So" III adj
vice or counsel, not acted upon, constitute a
complete oiense, this phrase is meaningless,
because such advice Of counsel necessarily
covers and embraces the attempt
to do So" and it embraces counsel
or advice "To attempt to do So" The
common law provided for the punishment OF
those who attempted to commit felonies or mis-
demeanors-including those who solicited or in
cited others to the commission OF crimes
which, in fact, were not committed-but con-
gress, with some exceptions not material to be
stated, has declared no punishment against
those who attempt 10 commit crimes, except
as that purpose is effected by the use of this
phrase, "or attempt to do so, IN sec. DOLL and
similar phrase in sec. 5,5l5, limited to officers
alone. This phrase, as used IN DOLL, under the
courts construction, has the important effect
OF discriminating anyone who aids, counsels,
prOcures or advises another 10 attempt TO COM
NIT any of the crimes named-if only the at
tempt be made
therefore instruct you that the last clause
of this section DOLLY defines four separate
Otfenses---viZ:
l. Aiding, counseling, ETC., any act made a
crime.
2, Aiding, counseling, etc, the emitting to
do duty, etc.
8. Aiding, counseling, etc, a person to at
tempt the doing Of an act made crime.
4. Aiding, cOunseling, etc, an officer to
attempt to omit that is, TO evade) any duty.
But in any case besides the mere fact OF the
advice or counsel it must be shown Tat the
crime contemplated was committed, or an
attempt made to commit it.
1t results of course that the mere sending,
by one to another of a letter O. document
containing advice to bride voter, or setting
forth a scheme for such bribery, however bold
and reprehensible, is not indictable. There
must be shown in addition, attempt by the
-.
gated by him 10 execute the scheme, by brib-
ing or attempting 10 bribe some voter in
respect to the election OF congressman, or in
such way as TO effect such election.
Another.p point deserves consideration in this
connection. ii the view be adopted that ad-
vice not acted upon may constitute a crime,
then the exact words used in giving the advice,
whether oral or written, must be ascertained,
and every possible intendment in favor of inno-
cence must be allowed, and all doubts resolved
in favor of the accused. Ii the use of money be
advised. but the particular manner or purpose
OF ITS use be not clearly and indeed conclusively
indicated, possible innocent use will be pre-
sumed; and even ii the purpose to bride be I'M
questionable and yet IL appears that the design
was 10 purchase votes for other officers than
representative in congress, il would be no
crime under the statute which is designed to
protect the election for that Office alone.
But under the rule that looks beyond the ad-
vice for the consummation Of the crime in the
deeds done in the execution OF II, the adviser
may be held responsible, within limitations
which need not now be stated, for the acts of
agents and agencies which he put in motion,
though they 20 beyond and aside from the letter
OF his advice or counsel. H. for instance, he puts
on foot a scheme 10 influence voters by bribery
or other unlawful means 10 vote Tor candidates
for president or governor saying nothing about
congress, and his agents buy voters Tor en-
tire ticket Including the candidate for con-
gress, the case comes within the purylew OF
this enactment
This statute, as it stands, is the re-enactment
Of familiar and well understood provision OF
the common law, and as such, think it onght
to stand and to be interpreted but at the same
time il might be added to. And fully assent
to the declaration OF one high IN the federal
judiciary whose concurrence in my conclusion
is the more weighty because given reluctantly,
that there ought 10 be statute making 1t an
offense against the United States for one per-
to GdyfSe another TO 10 any act or to attempt
70 do any act that would prevent the free eXer-
ercse of the elective franchise OF an election for
a federal officer; 9cbetber such 0.trice Is acted
not. There should, also, be statute
making il an oiense for any person TO advise
an officer at such an election, TO omit or at.
tempt to omit, the discharge Of any duty, the
omission of which Is made a crime, whether
such advice is followed or not But las he
adds 1t is not the provision Of the courts to
create Ofenses by misconstructiOn. They can
only declare what the statute means.
II there were serious doubt on this question,
that would require the same result. There is,
in the judgment OF the court, no room for such
doubt.