Evening star. [volume] (Washington, D.C.) 1854-1972, 1927-07-06
FALL AND D0HENYS
MUST STAND TRIAL
ON BRIBE CHARGES
Continued from First Page.)

lpTudIllS were VI tHO oolilS
opinion.
THE indictments charged that Fall
was an officer Of the United States;
that there was actually pending be-
fore him, in his official capacity, the
question of his decision and action
upon the negotiations referred to in
the indictment; and that he acted for
and on behalf Of the United States.
1T is clear under the indictments
that Fall was charged with an official
duty in the premises; that in the per-
Torrance of that duty he was acting
in an official function; and that his
action, alleged to have been corruptly
Influenced, was official action.
while there can be no bribery Of
an official to do particular thing, un-
less he has the function of acting in
the premises, yet an official act need
not be a lawful act to render the Off
cial liable, but need only be official in
form, and done under color OF his Of
flee"
The court said that 1t was immaterial
whether an officer or particular BODY
had or had not Jurisdiction in order
to determine the validity or invalidity
Of the act done. Justice Hitz said that
a corrupt judge, for instance, is not
to be protected by the fact that he eX-
ceeded his powers, adding that all the
law considers Is whether the act was
apparently within his jurisdiction.
IF the matter is pending before the
officer in his official capacity or may
be brought before him in such capac-
ity," the opinion continues, then it is
his duty to pass on it, and any cor
rupt agreement or promise, having
for it's purpose an improper influence
on his action in respect thereto, has
all the elements of bribery. 1t makes
no difference whether the pending
matter is valid one or not. For the
same reason, the acceptance of
bride by an executive officer in con-
sideration that he do an unlawful act
is bribery. In fact, the offense is all
the more serious If the officer had not
authority to act because of the ten
dency to induce him to step beyond
the line of duty and to usurp au-
thority not committed to him. There
fore. as the moral obliquity of the Of
Tense is equally great whether the Of
ficial's act is valid or invalid. he will
no. be permitted to plead it's invalid
ity in his own defense.
Opinion Discusses Authority.
"There is no more reason for per-
hitting these defendants to set up
the invalidity of the executive order
of May 81, 1921, and the want OF
authority in the defendant Fall as
a. defense to these indictments than
there is for permitting de facto off1-
GERS to set up want of official author
ity as a defense when they are
charged with accepting money to in
fluence their assumed official con-
duct"
The court then gives considerable
space in the opinion to discussion
Of what constitutes de facto author
ity, and holds that in those cases per-
sons would be liable.
The court, because OF the fact that
the indictments are similar, adopted
the suggestion of counsel and dis
posed Of both demurrers in the dis
cussion of one Indictment.
The court held that is well settled
that de facto officers will not be per-
mitted to make defense Of this
kind in prosecutions for bribery. The
law applicable to de facto officers,
said the court, is we'll defined in State
VS.. Duncan, 1853 Indiana, 318, in the
following language:
"'Being an officer de facto, APP
pellee will not be permitted to raise
the question as to whether or not he
was an officer de jure. Bribery is
an offense against public justice. The
essence of it is the prostitution of
a public trust, the betrayal OF public
interests, the debauchment OF the
public conscience. If one admits the
doing Of the things that produced these
results, shall he escape by saying that
he had not right to act at all! 1t
,f,.nv
consequence of one breach OF the
law might be evaded by showing
another
Our Court OF Appeals long ago
adopted Lord Ellenboroughs defini-
ton of an officer de facto as one who
has the reputation of being the officer
he assumes to be, and yet is not good
officer in point of law
"And so the Supreme Court: While
some general expression will be found
in the decisions tending to support the
Governments contention, the rule is
well established that to constitute an
officer de facto it is not a necessary
prerequisite that there shall have been
an attempted exercise of competent or
prima facie power Of appointment or
election"
The court said that an officer de
facto is not mere usurper nor yet
within the sanction of the law. but
one. who. under official color claims
and assumes to exercise official au-
thority. is reputed to have It. and the
community acquiesces accordingly.
Judicial as well as ministerial officers
may be in this position. The acts Of
such officers are held to be valid be-
cause the public good requires it. The
principal wrongs no one. A different
rule would be soune Of serious and