The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1889-02-27
LAYS DOWN RED-EYEDLAW.
Ex-sEN. MCDONALD REVIEWS WOODS.
He Shows That the Supplemental Instruc
tons In the Dudley Case Are in Con-
fict With All the PRESIDENTS, as
with the First Charge.

our state was published, | expressed surprise,
believing as did that it was departure from
the first. l also said itwould bear the criti-
cism Of being intended to shield Dudley from
indictment, and at all events it would probably
have that effect These and other expressions
OF similar character, il seems were framed
into what purported TO be interviews with me,
in some of which it was made to appear that
| had reflected on the personal character and
integrity of Judge Woods, when it was not my
intention TO do more than express a strong dis
sent to the law laid down in the second charge,
believing that in giving it the Judge had COM
United grave error Of law, and to deprecate
the consequences that would follow from it.
My personal relations with Judge Woods and
my faith in his integrity would not permit me
to believe, much less express, such a belief as
that he had corruptly given the charge. de-
sire, therefore, in the most unqualified manner,
to disclaim any intent or purpose to reflect
upon the character of Judge Woods the
character Of anyone not implicated in the crime.
Idesire to say further, however, that since these
charges have been published have given the
subject q much more careful examination than
1 did before and the result of that examina-
ton has been to deepen my conviction that
they cannot be reeonciled, and that the law as
laid down in the second charge is erroneous.
1t seems to me clear that the last clause of sec.
55ll, in plain and unmistakable language,
makes any one guilty who counsels bribery"
"and while it is not a crime TO attempt bribery,
il is a crime to advise another to make the at.
tempt" That is, one who counses or advises
any voter, person or officer TO bride any voter
at any election for representatives or delegates
to congress, or advises the attempt to be made,
Is guilty under that clause, although the per-
son advised and counseled neither brides any
such voter nor attempts to do The advice
or counsel to commit the crime of bribery is a
substantive ofense under the statute, and this
is what I understood Judge Woods, in sub
stance, to say in his first charge, while in his
second charge he says in express terms that
| this is not so, but Ito use his own language
ain any case. besides the mere fact of advice or
counsel, it must be shown that the crime con-
templated was committed, or an attempt made
70 commit it," thus putting ii into the category
of accessory crimes or crimes in the nature of
accessories, in which, of course, there must
always be principal before there can be nc
| cessories.
This presents the precise issue between
| Judge Woods, as expressed in his second
| charge, and myself. When first examined
| the statute, which did at the request of Judge
| Woods. | came to the conclusion that the crime
| was complete when the counsel or advice was
given, and so informed him in q brief note
written before he gave his first charge, in which
! ] used this language: 1T seems to me that the
specific language of the statute takes it out Of
/ the common law rule of construction q might
/ have added, in regard to accessorIes) and makes
| the advice given a substantive otense without
| reference to whether an overt act was com
mitted." The text writers class Ofeuses of this
| kind under the head of attempts" aud the
distinction between them and accessory crimes
| is that the attempt is all that is necessary to
| complete the crime. Mr.. Bishop, in his work on
| criminal law, paragraph 767, thus defines this
| kind OF otfense: "a common form OF attempt
! is to solicit another to commit q crime :the act
which is a necessary ingredient in every offense
consists in the solicitation. Thus to incite a
/ servant TO steal his masters goods, or
offer merely bride to request
/ it seems one TO post up a
threatening notice are severally indictable
misdemeanors though the person approached
/ declines the persuasion" The authorities, as
! understand, upon which Judge Woods and
! those who agree with him in regard to his sec
| Ond charge rely, are sec. 1923 of the U. s. re-
! vised statutes, Republica VS.. Roberts; l Dallas,
| 80. and Reg. Gregory, 10, Cox c. c., 459.
| have examined all these citations with care and
! find nothing in any of them that in the remot-
est degree sustains Judge Woods second
! charge. On the contrary, so far as they bear
upon the question they are directly against it.
! Sec 1923 OF the revised statutes simply defines
/ the Offense of an accessory before the fact in
/ the crime of piracy or murder on the high seas
]
| der the Pennsylvania law for treason against
/ the commonwealth committed during the Rev
! dictionary war, in which Roberts was charged
with aiding and assisting the enemies OF the
state in open war, etc, by enlisting in their ar
| mics and by persuading others to enlist. He
! was convicted on the first charge, but acquitted
| of the other because the persons whom he
| sought to persuade did not enlist, and there
/ fore the persuasion did not aid and assist the
/ enemy How this supports the judges second
oh - fb1n / ma in
/ 10th Cox fully sustains the first charge, but is
| sQuarely against the second. IL takes the dis
| tinctiOn between substantive crimes and Access
sary crimes, and places attempts 10 incite
others to commit felony or other high crimes in
| the list OF substantive crimes, as misdemeanors
| AS this is an important case and seems to be
much relied on by Judge Woods and his
friends, / have thought best to give it IN cd
| tense:
Gregory was indicted, tried and convicted for
soliciting and melting John White and two
! other servants of one James Kirk feloniously to
steal from their said master one bushel OF
! barley, etc. There were three counts in the in
! dictment. The Ofense was charged rs mis-
demeanor. There was evidence" so says the
| report, upon all of the counts OF the indict-
ment in proof of the otiense charged, but no
/ one OF the three servants named stole any
/ barley in compliance with defendants solicita-
ton or otherwise" Foster, for the defendant,
! insisted that the charge ought TO have been
laid under "a and % Wet, which made coun-
| selling procuring or commanding the COM
mission of felony, felony on the part of the
| person counselling ETC., and that, therefore,
! the defendant had been indicted Tor the wrong
| crime and that the verdict must be arrested.
! The motion was overruled and the conviction
affirmed by an opinion of Judge Kelley, which
quote here at length:
"Kelley, of {. b. This CONVICTION must be
affirmed. The prisoner was indicted and con
victed of misdemeanor, and two questions
have been raised by Mr.. Foster: first, whether
the expressions soliciting and netting in an
Indictment are equivalent to and identical with
the words "cOunselng and procuring" in "A
and 20 Wet. c. a. s. 2; so that though a coun-
selling or procuring is not charged in the in
dictment, the allegation therein OF soliciting
and melting is to be taken as an allegation OF
cOunSeling and procuring. 1t Is unnecessary,
however to decide that question. and IL is suf-
fcient to say that think those questions may
bear different meanings and that do not ac-
cede 10 the argument of Mr.. Foster As to the
second point, looking at the provisions OF the
statute, think il absolutely necessary to sup
port a conviction under The above section that
a substantive felony has been committed by
the person cOunseled. 1t is the grammatical
construction of the section. How can there be
an accessory before the fact TO the principal
| felony" a principal felon" If no felony has
| been cOmmitted9 The ofense committed there
fore, is properly charged as a misdemeanor,
aud the conviction is right. The opinion
of the learned judge, that the
grammatical construction" of the sec
ton of the crimes act of "a and % Vict referred
TO in the motion, made the crime OF counseling,
etc. an accessory crime and dependent upon