Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1904-01-08
DIETRICH NOT GUILTY
Judge yanDeventer Hands
Down Decision Sustaining
Demurrer
ONE EFFECT OF THE DECISION
ONE EFFECT OF THE DECISION
1t Lays Down the Proposition That
Mar is Not Member of Congress un-
ell He Takes the Oath and is Not
AmenabIe TO Law as a Member of
consress-The Senator Released.

kABUGNaOI6 10 I2w ~ a mGOtO6T VI
consress-The Senator Released.
Omaha. Jan. S.-When court conven-
ed today Judge Van Deventcr handed
down decision sustaining the de-
murrer in;erposed by counsel for Sem
ator Dietrich. The demurrer was
made to the Introduction of evidence
on the ground that Dietrich was not
actually member of the senate when
the alleged bribe took place. The ef-
feet of the decision Is that man is
not an actual member of congress un-
til he has taken the oath of office at
the bar of the house to which he is
elected. and that he is not amenahie to
law as member OF congress and Off
Ger of the United States.
Senator Dietrich has been released
from custody. Judge Van Deventer,
after delivering his opinion. instructed
the Jury to bring in verdict of not
guilty and the district attorney entered
a noile in other casss against Die
trich.
Jacob Fisher postmaster at Hast
ings, Neb., was also, given his liberty,
a nolle having been entered in each of
the indictments against him.
On account of the statement made to
the press some time ago on behalf of
Dietrich to the effect that he did not
wish to take advantage of technical-
ity and wished the case tried on its
merits. in order that he might be fully
vindicated. General Gown today gave
out n statement OF his reasons for de-
murring TO the indictments. In effect,
1t is that owing to the fact that the
court Itself would insist on adjudica-
tion of the question whether or not
Dietrich was a United States senator
during the period of time covered by
alleged unlawful acts he decided that
the demurrer should be interposed be-
fore taking of testimony should begin.
General, Corwin explained that other
wise the court at the close OF the case
for prosecution would hay. raised the
point In question which would have
preciuded defense presenting any evil.
dence In refutation.
Courts Opinion.
In delivering the opin.sn of the cour.
Judge VanDsyenter said:
The court has given as careful and
exhausted attention to the demurrer as
time would permit and we have ar
rived at conclusion t.n which we both
quite agreed.
This defendant is>charged with re-
ce.ving and agreeing to receive. while
a United States senator. part of the
United States congress, u valuable con-
s.dsra;ion from one Fisher. for procur-
ing or aiding to procure for him an
as postmaster at Hast
ings, Neb. Section I,7S1. revised stat
utes. under which this action IS
brought. contains two distinct and
prohibitions. The 1rst para
graph under which this indictment is
brought provides ahat every member
ernment, who commits certain acts.
shall be guilty of a misdemeanor and
provides for certain punishment. The
other paragraph provides that every
member of congress. officer or agent of
ths government, after his election. etc..
shall be liable to a penalty provided for
OF such acts"
The opinion then defines the differ
ence of meaning between the two para
graphs and Is to the effect that man
elected to congress does not actually
become a member of ,hmt body unit.
ne has qualified and taken the oath at
the bar of the house TO which hes has
been elected. The judge sadd the cour;
was unable to find single instance,
ncr had counsel cited any instance,
whore a member of congress- after his
election and prior to his qualification
and before administering of the oath
by that body. had enjoyed greater
privileges than any oslier person by
means of their election. altho they
often enjoyed much greater influence.
The last paragraph. said the court,
lsfe-s to acts which may be committed
by members of congress. after their
for and acceptance of the
duties of their offices. Continuing he
said:
Under the law. therefore. there is
no crime. except whore congress has so
declared. The court does not make
the law. or say what 1t should like to
have 1t be. The two houses of con-
gress under the constitution, are its
only bodies. The district attorney has
admitted there was no session OF con-
gress from March 2S. date of election
by the legislature of Dietrich and De-
cember 2. date of the convening OF con-
gress. Until the latter date their
could be no question raised as to his
actual membership in the senate nor
could he qualify before that body until
hat time. Until then II was not known
he would be permitted to en-
ter upon his duties as a United States
and as repre- sentative of the
neople of Nebraska before that body"
The opinion then defines the meaning
NJ members elect, eX-members and
members OF congress. and closes; Our
opinion, therefore. is that this defend
ant was rot a United States senator at
he time of the acts charged in this in
iictment. within the inhibition of this
statute. The Jury Ia instructed to find
, verdict of not guilty.
Immediately verdict was ordered
'or defendant and District Attorney
Summer announced that he wished to
enter nolle in the case of Jacob Fish
n, postmaster at Hastings. The court
-