The Plymouth tribune. (Plymouth, Ind.) 1901-1911, 1904-01-07
.D|ETR|CH'S DECISION
First Point in the Game at Omaha
Won by the Senator Who
Is Accused.
INDICTMENT IS DEAD FAULTY
One the Government Had Banked on
and Prepared for Is Thrown
Out of Court.

Omaha, Neb.. Jan. "a legal bat
tie prefaced the trial in the federal
court of the United States Senator
DIETRICH. charged with alleged con-
spiracy with Jacog fisher, postmaster
spiracy with Jacob Fisher. postmaster
at Hastings. Neb.. TO violate the stat
ute against bribery. and also with the
direct violation or that law, in which
counsel for Senator Dietrich scored
the first victory This point was on q
demurrer filed by General Gown to
the Indictment. attacking its suffic-
iency and alleging that it would have
the effect of placing the senator on
trial twice on the same charge. This
point was bitterly contested by oppos-
ing counsel, Assistant District Attor-
ney Rash. ARGUING for the government.
After two Hours consideration Judge
Van Devanter announced for the court
that the demurrer was sustained. In
his opinion Judge Van Devanter said:
I'VE have considered the demurrer to
the indictment il this case. United
States vs.. Charles III. Dietrich and ia
cob Fisher. wherein II Is attempted to
charge conspiracy under section 54iO
Of the revised statutes of the United
States The conspiracy charged is
t,:at the defendants conspired and
agreed to violate section 1871 OF the
revised statutes of the United States,
in that Dietrich. senator in congress,
agreed with Fisher to receive from the
latter $1,000 for assisting the latter TO
secure the Office OF. postmaster at Hast
give Dietrich said sum of $500 for
this service.
As 1iewed by the Judges.
1.-THE Indictment is challenged by a
demurrer upon the ground that agree
ing TO receive q bride and agreeing to
give one under such circumstances are
acts specifically prohibited by section
1871. and that therefore such an agree
ment is taken out of and excepted
from the general section 5440 If sec
ton 1871 was in terms confined to pro-
hibiting the receipt of such brihe
by member of congress and the CIV
ing of such a bride by an applicant
for office. or other person. then we
would be of the opinion that the indict-
ment in charging a conspiracy or agree
ment to do that which is prohibited
would charge an offense punishable by
section $40: but since section 1871 in
terms prohibits an agreement to ac-
cept or give such bride, as well as
the acceptance or payment thereof, we
are of the opinion that such an agree
ment between the brige taker and the
bribe giver cannot be made the sub
ject of a prosecution for conspiracy
under section $40. but must be dealt
with by separate prosecutions under
section 1871"
Where the Error Comes In.
'Our view is, therefore, that this in
dictment does not charge an offense
under section $40, but does in terms
charge Dietrich with the offense of
agreeing to receive, and Fisher with
the offense of agreeing to give, the
bribe named each of which is, without
more. distinct Offense under section
1871. 1t is also our view that these
two distinct offenses against separate
defendants cannot be embodied in one
Indictment The Indictment thus im-
properly joins two distinct offenses by
two separate individuals. which should
be prosecuted separately"
Decision Considered a Precedent.
This decision, which Is considered
an important one. is held to be a pre-
cedent in the matter of indictments in
conspiracy Gases. In effect the opinion
is that the law is at fault in provid-
ing. i'm addition to the actual taking
and giving of brides. an agreement
to take and give brides.
Knocks Out the Governments Case.
In effect the ruling on the demurrer
by Judge Van Devanter quashes the
indictment against Senator Dietrich.
charging conspiracy. 1t was on this
Indictment that the government had
prepared itself for trial, and to testify
in which a large number of witnesses
had been subpOenaed and were pres
ent In the city.