The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1906-03-09
T. E. Ryan and Roscoe Wilson
Are Also Relieved.
DOCUMENTS NOT GOOD.
Were Loosely Drawn and Nant-
ing in Explicitness.
Judge Philips Points Out De-
fects in Opinion.

In a drastic opinion, Judge John NJ
Philips. today freed Senator f. Dumont
Smith. Roscoe Wilson and T. 3. Ryan
by sustaining their demurrer to the,
charge Of conspiracy and bribery IN
connection with land fraud cases. en-
tered against them in an Indictment by
a special federal grand jury in Topeka
last November.
Judge Philips condemns the indfct-
ment as not only inartificially drawn
but wanting in explicitness and fullness
Of statement. He clears Ryan by stat
ing that IT was not sufficient for the
pleader Of the indictment TO allege that
he (Ryan) was merely acting under the
authority Of the department of the iu-
terror, and that Smith and Wilson con-
spired to have his decision as such
agent influenced improperly. Ryan's
duties and functions, argues the court
were neither defined by standing statute
or regulation Of the department
1t is pointed out in the opinion that
the alleged fraud of ". A. Hannah ct
al respecting homestead entry as be-
ing a matter pending before the inter-
ior department, was not even alleged.
No rule of pleading" says the court
lis better settled in criminal proceeding
than that matters constitutive of the
substantive Offense should be alleged
afirmatively and not argumentatively
or inferentially. The same applies to
the conduct of Palmer as probate
/ Judge"
Enough should be averred in the
Indictment" says Judge Philips, Ito
enable the court and defendants to
see that the matter under investiga-
: ton came within the authority of the
agent and the reviewing Jurisdiction OF
I the secretary of the Interior
Things of value" which the in-
! dictment says Ryan received. is ats
tackled by the court as not sufficiently
delineated, and because the statute
has reference only to such things Of
value as may be transferred to the
party either by the manual act Of de-
livery or written instrument
Passing by and beyond these
criticisms" continues the text OF the
opinion, tile Indictment is essentially
bad IN another respect To constitute
+ the ofrense on the part of Ryan un-
! der section 5501, it IS requisite that
/ he should ask. accept or receive
money with the intent of having his
/ decision Influenced thereby. To con-
stitute the offense as to Smith and
wilson under section 5461, they must
promise, offer or give. or cause to
/ be promised, offered or give, money or
things of value
The allegation Of the indictment is
! that Ryan, Smith and Wilson conspfred
/ to the effect that said Ryan, being a
/ special agent in the land office should
then and there unlawfuIly and felon-
lously receive money and things OF
/ value, and the promise Of money with
( the intent to have his decision irf7u-
/ enced thereby It is not alleged that
Smith and Wilson were TO give this
/ money and things of value or that
/ they promised or caused to be prom
ised, offered or give the same to Ryan.
I Without which act on their part they
did not violate the law. Were they to
furnish the money or things of value to
or
so allege. True, that in the overt act
| in the furth erance Of the claimed con
/ spiracy it Is alleged that Smith and
Wilson offered and paid to Ryan
money, and agreed to and did give him
certain railroad passes. But such
averments in charging the overt act
cannot help out the inhrmity Of the
antecedent charging part Of the in
dictment.
I'm the United states KS. DIETRICH.
/ 126 Fed. 664, Judge Van DeVanter, on
the circuit held that a conspiracy to
deIraud the government under section
5440 could not be sustained based
upon a bribe offered by a private citi-
zen to a member Of congress, to secure
his influence in the matter CT the ap-
| pOtntment OF the bribed' as postmaster
! because such a transaction was only
4 that DIETRICH agreed and could only
/ agree, to receive the bribe, and that
i Fisher, the briber, consented and only
! could consent to give it. It is not
deemed necessary however, for the
court on this Indictment to approve or
disapprOve this ruling. It will be time
| enough for its application when the
tndicteTnnt against these parties. shall
in direct terms, charge that Smith and
Wilson gave or promised to give mon
ey or anything OF value to Ryan to
/ influence his action, and that Ryan re-
ceived or agreed to receive a brtbe-
1t results that the demurrers to the
Indictment must be sustained.
May Be Again Indicted.
Smith, Wilson and Ryan were in
dicted by a special grand jury which
met in Topeka last November. Th8
evidence AGAINST the three was work ed
a, special agent Of the department Of
the interior.
The story of the charge briefly told Is
this: Smith and Wilson are law part
ners. Some of their clients got into
trouble over alleged illegal fencing Of
government land. T. e. Ryan was
special agent of the United States land
Office. To keep their clients from be-
ing prosecuted. it was charged that
Smith and Wilson paid to Ryan a sum
of money and gave him railroad
passes. This according to the charge.
kept him from making prosecutions.
The sustaining Of the demurrers to-
day is not necessarily the end Of the
charge. Until the statute of limitation
disbars the alleged offense, It can ba
Irevamped and brought forward by any
future grand jury. One sits next week
at Wichita. and it has been rum ored,
that if Judge Philips turned down this
Indictment q new one would be pre-
ferred. Naturally none of the federal
officials would say anything about this.
The reason that Judge Philips hand
ed down the opinion, is that Judge
Pollock asked to be excused from con-
years Of acquaintance with the defeud-
ants.