BRIBERY. (MEMBER OF CONGRESS - LIMITATIONS.) UNITED STATES CIRCUIT COURT, EASTERN DIVISION OF NEW YORK. In United States v. Driggs, 125 Federal Reporter 520, an indictment against a member of Congress for receiving a bribe in violation of Rev. St. Secs. 1781 and 1782, is considered. These sections make it a criminal offense for a congressman to receive any money, property, or other valuable consideration for aiding in the procuring of any contract from the government.

In this case the defendant was given a nonnegotiable note by a government contractor, promising to pay certain sums as the proceeds of the contract to be secured were realized. The note was delivered more than three years prior to the finding of the indictment and the defendant argued that the crime, if any, was committed at that time and was barred by limitations. On this point the court says: "The instrument was tainted and made worthless by the statute itself. Could the same statute stamp as something valuable, as property, a writing whose existence it had inhibited? The statute declares that a member of Congress shall not agree to receive any money, or property, or other valuable consideration whatever, from any person, for procuring . . . any contract. from the government.' If a member of Congress and such person enter into an agreement to do this very thing, how can the agreement be regarded as property or a valuable consideration? Does the statute refuse the agreement life by prohibiting it, and at the same time, upon its interdicted birth, breathe life into it, and give it the characteristics, the protection, and the quality of property? According to such argument, the statute kills and quickens the same agreement at the same instant. It stifles while it animates. It precludes its existence, and, being defied, attaches worth to its reality. Leavened and vitiated by guilt, and imbued and vivified by virtue, by the same statute! One seeks in vain for fit expression of the contrariety. . The very statement of the defendants' proposition should demonstrate its invalidity.

It is so abhorrent to moral and legal conceptions, so inimical to plain reason, that some technical rules, elsewhere wholesome and properly applied, but now skillfully invoked by defendants' counsel, must be broken through and discarded, and ultimate vital judgments allowed to prevail. If any one shall decide, or has decided, that a statute may be interpreted to denounce an agreement as impossible of worthy existence, and after it has come forbidden into the light, declare that it has such worthiness that it may be regarded as 'property' or 'other valuable consideration,' for the purposes of the same statute, the responsibility of such decision shall not rest upon this court." The court holds that being rendered illegal by the statute itself, the note did not constitute a valuable consideration, and therefore that the offense was not committed until payments under the note were made, which was within the period of limitations.

BRIBERY. (MEMBER OF CONGRESS-MEMBER ELECT -CONSTRUCTION OF STATUTE.)

UNITED STATES CIRCUIT COURT FOR THE DISTRICT OF NEBRASKA. In United States v. Dietrich, 126 Federal Reporter, page 676, the first of a series of indictments against Senator Dietrich of Nebraska is considered, and the jury were directed to return a verdict of not guilty. The statement of the attorney for the prosecution showed that the acts charged as a violation of Rev. St. Sec. 1781, occurred after the defendant's election, but before the convening of Congress, when he presented his credentials and took the oath of office as a Senator. The statute makes it a punishable offense for any "member of Congress or any officer or agent of the government,” to take or receive, or agree to receive, a bribe for procuring or aiding to procure any contract, office or place for another person from the United States, and also makes it a punishable offense for any "member of Congress" to take, receive or agree to receive a bribe "after his election as such member," for his attention to, service, vote, etc., on any question then pending or which may be brought

before him in his official capacity. In holding that Dietrich was not a member of Congress within the first clause, the court relies on the practical distinction intended by Congress between a "member of Congress" and a "member of Congress . . . after his election as such member." A number of statutes which distinguish between a member of Congress and a member elect, are referred to. Acceptance is declared to be essential to the induction into public office and acceptance could not occur until the Senate had convened. The defendant was governor of the State for some time after his election, and it is said that the State Legislature did not and could not remove him from that office by merely electing him as a United States Senator. Opinions of the Attorney General are also cited, and the case of Cordiell v. Frizell, I Nev. 130, 132 is said to be much in point. The case against the Congressman Driggs, (just reviewed,) is distinguished, because in that case the prosecution was under section 1782 and not section 1781. The fact that Dietrich received his salary from the time of his election, is said to be of no moment, in view of the statutes which expressly provide for the payment of salaries to representatives and delegates elect. In conclusion, the court says: "A completed act which is not an offense at the time of its commission, cannot become such by any subsequent act of the party charged, or of another, with which it has no connection, and this is true whether the first act was done for a good or bad purpose."

CONSPIRACY. (BRIBERY OF MEMBER OF CONGRESS
—AGREEMENT TO GIVE AND RECEIVE BRIBE.)

UNITED STATES CIRCUIT COURT OF THE
DISTRICT OF NEBRASKA.

On page 664 of the Federal Reporter, Vol. 126, another indictment against Senator Dietrich is considered. The indictment was brought under Rev. St. Sec. 5440 (U. S. Comp. St. 1901, p. 3676) providing that if two or more persons conspire to commit an offense against the United States, etc., and any one do an act to affect the object of the con

spiracy, all the parties shall be liable for a penalty, etc.

The indictment charged that Dietrich and one Fisher, the former being a member of the United States Senate, conspired to commit an offense against the United States and to violate a law of the United States, to wit: section 1781 of Revised Statute, by Dietrich agreeing to take a bribe for procuring the office of postmaster for Fisher, and Fisher agreeing to give the bribe. This is followed by the specification of an overt act done by Fisher pursuant to the conspiracy.

Section 1781 makes it a criminal offense for a member of Congress to agree to receive any money, property, etc., for aiding to procure any office from the government, and a like offense in the person offering the bribe. After an elaborate discussion in which the cases of Shannon v. Commonwealth, 14 Pa. 226; Miles v. State, 58 Ala. 390; State v. Butler, 8 Wash. 194, 35 Pac. 1093, 25 L. R. A. 434, 40 Am. St. Rep. 900, are cited, the court holds that section 1781 creates a substantive offense, to the idea of which plurality of agents is logically necessary, and therefore one which is not punishable as a conspiracy, the gist of which is the acquisition of a second agent to the offense as an added element to its conception.

A very interesting discussion follows as to whether several defendants may be charged in the same indictment with different offenses of the same kind, the word "severally" being employed and the indictment regarded as a series of separate indictments. As Dietrich and Fisher are charged in one count, the court's intimation that such a practice would be proper does not save the indictment in this case.

CONSTITUTIONALITY OF STATUTE. (RIGHT TO RAISE ISSUE-PROSECUTION FOR ASSAULT ON OFFICER.)

COLORADO SUPREME COURT.

In Keady v. People, 74 Pacific Reporter 893, defendant was prosecuted for assault with intent to murder, made on an officer who attempted to search him for concealed

weapons.

This duty was imposed on the officer by 3 Mill's Ann. St. Sec. 1364, and the court holds that the defendant cannot question in this prosecution the constitutionality of that statute. It was the duty of the officer to regard the statute as valid and in attempting to perform his duty under it he should be protected. An officer armed with a warrant valid on its face, has authority to arrest, and a person resisting arrest does so at his peril. So also, the court thinks that a statute which clothes an officer with authority to act cannot be attacked by a defendant on a trial for assaulting the officer while acting under it. No authorities are cited.

UNITED STATES CIRCUIT COURT FOR THE
DISTRICT OF NEBRASKA.

In 126 Federal Reporter 671, another indictment against United States Senator Dietrich came up for consideration, the charge being violation of Rev. St. Sec. 3739, providing that no member or delegate to Congress shall undertake, execute, hold or enjoy any contract made or entered into in behalf of the United States, and that all contracts made in violation of the section shall be void. The contract in the case at bar involved a lease by the defendant of a building to the United States, for use as a postoffice, and for the purpose of the demurrer on which the hearing was had it is assumed that the contract was entered into prior to the defendant's becoming a Senator. Then in answer to the contention that, being valid in its inception, the defendant's subsequent election would not affect its validity and binding force, the

holds that the statute terminates the contract so far as it remains executory, the statutory provisions being read into the contract itself. Where performance of a contract legal in its inception, becomes unlawful by reason of any subsequent event, the contract is thereby dissolved or terminated so far as it remains executory and both parties are excused from its further performance. Melville v. De Wolf, 4 El. & Bl. 844,

850; Reid v. Hoskins, Id. 979, 984; Newby v. Sharpe, 8th Ch. Div. 39: Anglesea v. Rugeley, 6 Q. B. 107, 114; Bailey v. De Crespigny, Law Rep. 4 Q. B. 180; Brick Presbyterian Church v. New York, 5 Cow. 538; Mississippi, etc. Co. v. Green, 9 Heisk. 588, 592; Knoxville v. Bird, 12 Lea 121, 49 Am. Rep. 326; Cordes v. Miller, 39 Mich. 581, 33 Am. Rep. 430; Brown v. Dillahunty, 4 Smedes & M. 713, 723, 43 Am. Dec. 499; Bradford v. Jenkins, 41 Miss. 328, 335; Irion v. Hume, 50 Miss. 419, 427; Macon, etc. Co. v.Gibson, 85 Ga. 1, 17, 11 Southeastern 442, 21 Am. St. Rep. 135; Odlin v. Ins. Co. 18 Federal Cases, p. 583 (No. 10,433); Tait v. Ins. Co., 23 Federal Cases 620 (No. 13,726); Hangner v. Abbott, 6 Wall. 532, 535, 18 L. Ed. 939; New York Life Ins. Co., V. Statham, 93 U. S. 24, 23 L. Ed. 789; Ins. Co. v. Davis, 95 U. S. 425, 24 L. Ed. 453; Jones v. Judd, 4 N. Y. 411; Heine v. Meyer, 61 N. Y. 171, 176; Bennett v. Woolfolk, 15 Ga. 213.

The demurrer was overruled.

CRIMINAL CONVICTION. (BAR TO ACTIONS FOR PENALTY.)

NEW YORK SUPREME COURT.

In People v. Snyder, 86 New York Supplement 415, an acquittal in a criminal prosecution is held not to bar an action by the people for the penalty prescribed for the same offense. The statute violated was Law 1900, p. 66, c. 20, Sec. 229, which prohibits the burning of fallows during certain periods of the year, and prescribes that any person violating the section "is guilty of a misdemeanor and in addition thereto is liable for a penalty."

The court says that the contention that conviction is a bar is founded largely on the fact that two remedies are prosecuted in the name of the people and that the suit for penalty is quasi criminal in character. They are, however, entirely independent, and one is a criminal and the other a civil action. The rule governing the trials of the two cases are dissimilar. In the criminal action the evidence must satisfy the jury of the defendant's guilt beyond a reasonable doubt.

The taking of evidence by commission is not permissible, and the manner of eliciting proof is more restricted. The jury, without any departure from the strict letter of the law or any misapprehension of the evidence, might acquit in a criminal action, and upon the same proof and with equal propriety, render a verdict for the amount of the penalty. People. Rohrs, 49 Hun, 150, 1 N. Y. Supp. 672, People v. Stevens 13 Wend. 341, People v. Meakin, 133 N. Y. 214, 30 N. E. Rep. 828, Blatchley v. Moser, 13 Wend. 215, Rollins v. Breed, 54 Hun, 485, 8 N. Y. Supp. 848, and Behan v. People, 17 N. Y. 516, are cited.

It is said that a contrary principle has been maintained in Coffee v. United States, 16 U. S. 436, 6 Sup. Ct. Rep. 437, 29 L. Ed. 684, but that decision is said to have been limited in Stone v. United States, 167 U. S. 178, 17 Sup. Ct. Rep. 778, 42 L. Ed. 127.

Justices Williams and Stover, dissent.

The majority opinion also holds that where a statute punishes an act as a misdemeanor and also imposes a penalty, it is not necessary to obtain a conviction before suing for the penalty.

CRIMINAL PROCEDURE. (REMITTING INDICT
MENT FROM DISTRICT TO CIRCUIT COURT — CON
STRUCTION OF STATUTE.)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA.

In 126 Federal Reporter 659, another indictment against United States Senator Dietrich, came up on a question of jurisdiction raised by the court itself; the precise question being the meaning of the words "next session" in Revised Statues, Sec. 1038 providing that any district court may, by order, remit any of the indictments to the "next session" of the Circuit Court of the same district, when, in the opinion of the District Court, difficult and important questions are involved; and "thereupon" the proceedings shall be the same in the Circuit Court as if the indictment had been originally presented therein. The indictment had been returned to the November, 1903, term of the District Court. The November term of the Circuit Court was adjourned from

December 24, to December 28, and then by successive adjournments to January 4, 1904. On December 26, 1903, the District Court made an order remitting the indictment to the next session of the Circuit court. If the words "next session" were taken as referring to the next term the indictment would not be triable until the May term of the Circuit Court. If, on the other hand, they meant the next resumption of business, after an adjournment during the term, it would be triable at the current term.

After reviewing a large number of definitions, the court decides that "next session" means the next resumption of business at the present term. McMullan v. United States, 146 U. S. 360, 13 Sup. Ct. Rep. 127, 36 L. Ed. 1007; United States v. McKee, 4 Dill. 1, 26 Fed. Cas. 712, (No. 15,687), Jones v. United States, 137 U. S. 202, 11 Sup. Ct. Rep. 80, 34 L. Ed. 691; Smith v. United States 137 U. S. 224, 11 Sup. Ct. Rep. 88, 34 L. Ed. 700, are cited.

LIBEL. (ARTICLES LIBELOUS Per Se-Ridicule of OPINIONS.)

NEW YORK SUPREME Court.

In Triggs. Sun Printing & Publishing Company, 86 New York Supplement 486, the noted professor of English Literature in the Chicago University, was refused relief against the New York Sun for articles deemed by him to have been libelous per se. The majority of the court, Justice Laughlin dissenting, say that the spirit of exaggeration and fun pervading these articles was not intended seriously. The plaintiff has regarded the publication too gravely and has considered what was intended to amuse the readers of the paper, as a serious criticism upon his work, a view which a study of the articles does not warrant. As far as the court knows, an article which makes an opinion propounded by a teacher ridiculous has never been held libelous. Quotations from the articles in question follow:

"And now the god has spoken. At the Cook County League of Women's Clubs, Saturday, Prof. Triggs looked into the seeds of time and had a vision of the new man.' Hear and tremble, miserable homunculus of today :

"The businesss man of the futute would not be recognized by the business man of today. The present

order of man will pass away. There shall come a new humanity. Notice the passing of patriotism, which is merely an expanded egotism. Notice the new state of diplomacy. All this points to the new era when the social spirit will prevail; when the selfish, the egotistic motive will be gone. The business man will wish to share his successes with the rest of society.'

6

'We hate to differ with Prof. Triggs, but his remarks about patriotism are reported incorrectly, or there is some kink in his definition. If patriotism is expanded egotism, what is Triggs? If Triggs and patriotism are one, how can patriotism pass?' We are ready to believe in the new humanity' and to welcome it; but what is new humanity without the same old and ever young Triggs? Insisting that Triggs must and ever shall be preserved, let us cast an admiring glance at the business man of the future. He will share his successes with the rest of society? It would be Philistine to call for a bill of particulars. The new man will divide his profits among his customers or among the whole community. The individual dividends may not be large, but they will show a kindly spirit in the divider. Presumably, the customers or the ccmmunity will consent to be assessed in case the business loses money. Let altruism have its perfect work. It may be hard for a thoroughly new business man to resist the temptation to give his goods away.

"As for Triggs and all other altruistic professors of the Chicago University, they will pay Dr. Harper for the privilege of working for him. Already some of them delight to prepare for the new order by giving themselves away."

The foregoing appeared in the New York Sun of March 2, 1903. On April 6, another article was published commenting in a humorous and satirical fashion on an offer made Prof. Triggs to act as an advance agent for a theatrical representation of Romeo and Juliet. On April 10, the following appeared:

"To men of good liver, life is full of happiness. To us it is, and long has been one of the greatest of these felicities to guide amateurs to Prof. Oscar Lovell Triggs, a true museum piece, and the choicest treasure in Dr. Harper's collection. We cannot boast of having discovered Triggs, for he was born great, discovered himself early, and has a just appreciation of the value of this discovery. But in our humble way we have helped communicate him to the world, assisted in his effusion and diffusion, and beckoned reverent millions to his shrine. We have joyed to see him perform three heroic labors, viz.:

I.

'Knock out' old Whittier and Longfellow.

2. Do up' the hymn writers.

3. Name his baby at the end of a year of solemn consultation.

"But these achievements are only the bright beginning of a long course of halcyon and vociferous proceedings. As yet, Prof. Triggs is but in the bud. He came near blossoming the other day, and the English drama would have blossomed with him. A firm which is to produceRomeo and Juliet' offered him $700 a week to be the advance agent' of the show and to 'work up enthusiasm by lecturing.' Prof. Triggs was compelled to decline the offer, but the terms of his refusal show that it is not absolute, and that some day,'

as the melodramas cry, he will illuminate Shakespeare, dramatic literature and the public mind:

:

If

these plays are to be put upon the stage, they must be rewritten and Prof. Triggs is the destined rewriter, amender and reviser. The sapless, old-fashioned rhetoric must be cut down. The fresh and natural contemporary tongue, pure Triggsian, must be substituted, For example, who can read with patience these tinsel lines? "Madam, an hour before the worshipped sun 'Peered forth the golden window of the east, 'A troubled mind drove me to walk abroad.' "This must be translated into Triggsian, somewhat like this:

46

'Say, lady, an hour before sunup I was feeling wormy, and took a walk around the block.' "Here is more Shakesperian rubbish:

""O, she doth teach the torches to burn bright.'
'Her beauty hangs upon the cheek of night,
'As a rich jewel in an Ethiop's ear.'

"How much more forcible in clear, concise Triggsian: "Say, she's a peach! a bird!'"

"Hear 'Pop' Capulet drivel:

"Go to, go to,

'You are a saucy boy.'

"In the Oscar dialect this is this:

"Come off, kid! You're too fresh.' "Compare the dropsical hifalutin:

"Night's candles are burnt out, and jocund day, 'Stands tiptoe on the misty mountain's tops.' -with the time-saving Triggsian version:

"I hear the milkman.'

"The downfall of Shakespeare is only a question of time and Triggs. Carnegie ought to endow Triggs. Oscar Hammerstein ought to dramatize Triggs. Triggs is the hope, and soon will be the pride of the stage. He ought to have not less than $7,000 a week for fiftythree weeks a year."

And the New York Supreme Court held that these were not libelous! Poor Triggs!

LOTTERY. (TRANSPORTATION OF TICKETS—CRIMINAL OFFENSE CONSTRUCTION OF STATUTE.) UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA

In United States v. Whelpley, 135 Federal Reporter 616, defendant was charged with violating Act March 2, 1895, c. 191. 28 Stat. 963, (U. S. Comp. St. 1901, 3178), providing that any person who shall cause to be brought within the United States from abroad, for the purpose of disposing of the same, or carrying "from one State to another" in the United States, any ticket of a lottery, shall be punished, etc. The defendant was charged with having shipped from Dayton, Virginia, to the District of Columbia, certain lottery tickets, for the purpose of disposing thereof, and the question was whether the District of Columbia was a "State" within the statute.