The Montgomery advertiser., 1904-01-09
DIETRICH GOES FREE
SENATOR RAISES TECHNICAL.
 ITY AND IT HOLDS.
Not Member of United States Sen ate at the Time of the Com mission of the Alleg-
 ed Crime.

Omaha, Jan. s.--United States Senator Dietrich, who appeared in court here two days ago to answer the charge of agree- ing to receive, while member of the United States Senate, consideration from one Fisher. for aiding to procure the ap- pointment of postmaster, was today re- leased from custody. the jury being in- structed to bring in verdict of not guilty.
 The decision of Judge yandeventer sus- tained a demurrer interposed by counsel for Senator Dietrich. The demurrer was made to the introduction of evidence on the ground that Dietrich was not actually a member of the Senate when the alleged bribery took place.
 The effect of the decision is that a man is not a member of Congress from the time of his election until he shall have taken the oath at the bar of the house to which he Is elected and that he is not amenable to law as a member of Congress and officer of the United States.
 Judge Vandeventer said that the court was unable to find a single instance, nor had counsel cited any instance where a member of Congress, after his election and prior to his qualification has enjoyed greater privileges than any other person by means of their election, although they often enjoyed much greater influence
 Continuing he said:
 Under the law, therefore, there is no crime, except where Congress has 50 de- clared. The court does not make the law or say what 1t should like to have 1t be. Congress makes the law and the court construes. Here Congress has said that members of that body, who take brlbes. shall be punished. It might, per- haps be competent for Congress to enact 1nrn rryt.f fOH for any person to attempt to secure for another an office under the United States Government hut such a suggestion is not included in this statute. Instead of saying every person, 1t is confined to members of Congress, officers and agents of the United States. The two houses of Congress. under the constitution are the only judges of whom shall sit as members of their respective bodies.''
 A nolle was then entered in the case of James Fisher, postmaster at Hastings, by the State.
 On account of a statement made to the press some time ago on behalf of Senator Dietrich to the effect that he did not wish to take advantage of any technicality and wished the case tried on its merits, in or- der that he might be fully vindicated, General Cowan today gave out a state ment of his reasons for demurring to the indictments
 In effect. 1t is that owing to the fact that the court itself would insNAs on an adiudi- cation of the question whether or not Dietrich was United States Senator du- ring the period of time covered by the al- legged unlawful acts. he decided that the demurrer should be interposed before the taking. of testimony should begin. Gen. eral Cowan said that otherwise the court at the close of the case for the prosecu. ton would have raised the point in aues- tiou which would have precluded the de. fense presenting any evidence in refuta- tion.
 District Attorney Summers said that he had nothing to say in reply to General Cowan's statement. as the court has set | tied the case. If Senator Dietrich wished to secure a vindication through trial of the case on its merits he had an oppor. tunity to do by not raising the technical point of whether he was a member of l Congress from the time of his election tC | his taking the oath of office