Evening star. [volume] (Washington, D.C.) 1854-1972, 1905-12-30
OVERRULESDEMURRER
10 Indictment Against John
A. Benson
In LAND FRAUD CASE
ACTION OF JUSTICE STAFFORD I'M
COURT TODAY.
Contention of Attorneys Considered I'm
Detail-Claims of the Defendant
Opinion From Bench.
IN LAND FRAUD CASE

The demurrer of John A. Benson to the
Indictment reported against him for brt.
berry. as defined by section 5451 Of the Re-.
Vised Statutes of the United States. based
OF the alleged public land frauds. was today
overruled by Justice Wright in Criminal
Court No l.
According to the first count of the In.
dfctment, Benson gave Mr. Harlan of the
Interior Department the bribery money at
a time when no report was upon the files
of the department. and before any had even
been prepared by the special agents This
constitutes the first point of the demurrer
that at the time of the giving over of thu
money Harlan was under no duty concern.
ing the report.
In the opinion of the court It seems to be
exact to say that Harlan was under no
concrete duty respecting any particular re-
port, and equally exact to say that he was
under an abstract duty with respect to all
reports in general The abstract duty OF
secrecy concerning reports grew out OF tho
nature OF his cierkship and not de-
pendent upon the existence of reports This
duty would have existed although no re-
ports had ever existed 1t existed In antici-
patton of reports against the time when
some would be brought forward, and be-
came concrete with respect to a particular
report when filed, ony because its existence
In the abstract had anteceded the coming
into existence of the particular report.
Therefore the first question was whether
the Statute against bribery by the phrases
ology "in violation of his lawful duty'
coRtenplates only the duty which has be-
come concrete by the happening of an Inc
stance TO which a duty attaches and exs
cludes duty which, while existing n gen-
eral and in the abstract has not yet at
tached to particular instance for want OF
its happening
Purpose of the Law.
With respect to statutes against bribery.
| the court pointed out, the legisa tive pur-
| pose is 10 preserve the integrity Of Official
persons, by condemn ing that which inclines
them against the interests of the body
polite, concerning matters committed TO
their care.
Further, the writ said:
Corruption grows less pernicious ac-
cording 1t is the more general or the
more far reaching in its effect: nor is the
official who suffers himself 10 be corrupted
but once and In a particular matter to be-
probated beyond him who is debauched
concerning all his duties, pertaining to all
affairs, through all the future. The more
general, the more abstract the duty, the
more far reaching in result is the pollu-
tion of the hand in which power lies; and
the giving to Harlan of money in order TO
influence him to reveal the contents OF
whatever report the special agents might
hereafter happen to file was TO influence
him against the general duty which he was
at the time under to preserve secrecy con-
corning all such reports might ever
come TO the files, and this general abstract
duty is within the purview of the statute"
1t was held that the first ground of the
demurrer is not well taken.
The defense also contended that "the in-
dictment contains no allegation of fact
| showing that it would be violation OF
duty for Harlan or Walk to reveal the con.
tents of the report"
The first count AYERS in so many words.
1T became and was the duty of the said
Harlan to not allow the contents of such
any persons charged with such violations"
Question of Phraseology.
But it is said that this is a conclusion
of law, not an averment of fact" the court
went on to say. Identical Iangueg ge may
be one time legal conclusion and another
time statement of fact, according TO the
phraseology which accompanies it. But Il
is unnecessary to proceed further with the
task of distinguishing legal conclusion
from 'averments of fact for the reason
that the phraSeology here characterized as
a legal conclusion is altogether unnecessary
to this Indictment and might as Wei have
been omitted altogether; the Indictment
sets out at least that Benson was suspected
of defrauding the United States OF public
lands that a special agent of the govern
ment had been ordered to investigate the
matter and report to the appropriate de-
partlnent for the purpose of n criminal
prosecution, that it was an official function
of the chief of a division of that depart.
ment to consider the report when IL was
filed; now, upon this hypothesis of fact, II
became forthwith, matter of law, the
duty of that chief to keep the report secret
from Benson. Such duty is inseparable
from such facts; and a statement of the
mere facts inevitably carries statement OF
the duty, without saying anything what.
soever about duties in express words; 1t Is
the function of a pleading to present such
a state of facts as that the ~ will lay
hold of it; and when such is presented, thae
result which follows as q matter OF law
need not be averTed.
.'Tha existence of the duty Is therefore
sufficiently shown
''It is true that the existence of what has
sunra been termed q concrete duty-that
is a duty concerning individual report,
depended upon the happening of contin-
gencies: but the abstract duty, that IS,
duty concerning all such reports In gem
erai had laid itself upon Harlan with HIS
entering into office; the only condition 60"
sential to its operation was satisfied Whsn
he qualified for that situation.
..rhe other points made against the frst
count are disposed OF by the foregoing cons
sideratons. .. ,
"None of the other counts are wanting
IN any of the averments presented by tho
first: and the first being suf1cent, the
others are good also The demurrer u
overruled."
r.rAr nASoTTNE EXPLOSION