Rock Island Argus. (Rock Island, Ill.) 1893-1920, 1904-01-05
Accused Senator Makes
Point Against the
State.
TECHNICAL IN NATURE
But Frees Him From
Conspiracy Charge
Nevertheless.

Omaha, Neb.. Jan. 5.-A legal bat
tie prefaced the trial in the federal
court of the United State> senator
Dietrich. charged with alleged con-
spiracy with Jacog FISHER. postmaster
spiracy with Jacob Fisher. postmaster
at Hastings. Neb.. TO violate tn" stat
ute against bribery. and also with tn"
direct violation of that law, in which
counsel for Senator Dietrich scored
the first victory This point IVES OF IA
demurrer filed by General Gown Ia
the indictment. attacking its suiiic-
icncy and alleging that it would hay"
the effect of placing the senator on
trial twice on the same charge. This
point was bitterly contested 10y opp"S
ing counsel. Assistant District Att"r-
ney Rush. arguing for the government
Ruled Against the Government.
After two hours consideration Judge
Van DevantcT announced for the court
that the demurrer was sustained. In
his opinion Judge Van Devantcr said:
we have considered the demurrer to
the Indictment in this case. United
cob Fisher. wherein il l.. attempted to
charge conspiracy under section Ji4O
of the revised statutes Of the United
States. The conspiracy charged is
that the defendants cOnSpired and
agreed to violate section lISi of the
revised statutes of the United States.
in that Dietrich. a senator in congress.
agreed with Fisher to receive from the
Inter 81 800 for assisting the latter to
secure the office of postmaster at Hast
ing>. Ncb.. aud that Fisher agreed to
give Dietrich said sum of $1,000 for
this service.
A. Viewed by the Judges.
THE Indictment iS challenged by n
demurrer upon the ground that gree
ing To receive Il bribe and agreeing tO
give one under such circumstances are
acts specifically prohibited by section
1871. and that therefore such I'm agree
ment is taken out of and excepted
from the general section $40. If sec
tiOn 17S1 was in terms confined to pro
hibitlng the receipt of such Il bribe
by member of cor -re~S ana the Civ
ing 90 such brihc by an applicant
for office. or other person. then we
would be of the opinion that the indict-
mPut in charging conspiracy or a gree
mcnt to do that which iS prohibited
would charge an offCnSc punishable 10y
section -44O: hut since section 11S1 i'm
terms prohibits an agreement 10 ac-
cent or give such a bribc a> we'll as
the acceptance or payment thereof. we
are of the opinion that such an agree
mPnt between the brige takpr and the |
hribe Civer cannot he made the sub |
icCt Of prosecution for conspiracy /
under section $40. but must be dealt |
with lay separate prosecutions under |
section 1871"
Where the Error Comes In.
"Our view i. therefore. that this in |
diCtment does not charge an otfenSe |
under section -4i0. but does in terms |
charge Dietrich with the offense OF /
aErCeinS TO receive. and Fisher with /
the offensc of agreeing to give the !
brihc named. each Of which is. without |
more. distinct ofren>e under section |
1881. II i also our view that these /
two distinct ofTcuScS against separate |
defendants cannot Ice embodied in one |
ind ctmCnt. The indictment thus I'm
properly joins two distinct offenScs by |
TWO stlt llfliN itliAf -. " l4lt II Stittll
bc prosecuted separately"
Decision Considered a Precedent.
This decision. which i< considered |
an important one. i held 70 lie Il pre-
cedcnt i'm the matter Of indictments in /
conspiracy cases. In effect the opinion
Il that the law is AZ fault i'm provid-
ing. in addition To the actual taking
and giving or hriheS. an 'aSrrcmcnt''
10 take and give brides
Knocks Out the Governments Case.
In effect the ruling on the demurrer
10y Judge Van n"vautcr QUaShcS the
Indictment against Senator Dietrich
charging conspiracy. IL was on this
indictment that the government had |
prepared itself for trial. and 10 testify
in which large number Of witnesses
had been suhpoenaed and were pres
ent in the city.
Puts n Thousand Men at Work.