233 U.S. 223 (1914), 727, United States v. Birdsall

Docket Nº:No. 727, 728, 729
Citation:233 U.S. 223, 34 S.Ct. 512, 58 L.Ed. 930
Party Name:United States v. Birdsall
Case Date:April 06, 1914
Court:United States Supreme Court

Page 223

233 U.S. 223 (1914)

34 S.Ct. 512, 58 L.Ed. 930

United States



No. 727, 728, 729

United States Supreme Court

April 6, 1914

Submitted and argued January 8, 9, 1914

Restored to docket for reargument January 19, 1914

Reargued February 25, 1914




Where the district court holds that the acts charged do not fall within the condemnation of the statute on which the indictment is based, it necessarily construes that statute, and this Court has jurisdiction under the Criminal Appeals Act of 1907.

Sections 39 and 117, Criminal Code, 35 Stat. 1109, defining and punishing the giving and accepting of bribes, cover every action within the range of official duty.

It is not necessary in order to constitute an act of an officer of the United States official action that it be prescribed by statute; it is sufficient if it is governed by a lawful requirement, whether written or established by custom, of the department under whose authority the officer is acting.

The office of Commissioner of Indian Affairs was established to create an administrative agency with adequate powers to execute the policy of the government towards the Indians, and one of the important duties of the Indian Office is the enforcement of liquor prohibition.

The action of the Commissioner of Indian Affairs in advising the

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President of the United States whether or not clemency should be granted to one convicted of violating liquor laws in the Indian country is official action, and it is within the competency of the office to establish regulations requiring from all persons connected with the office true and disinterested reports to the Commissioner on which to base such advice.

The powers of the Indian Office to aid in suppressing the liquor traffic in Indian country extend to every matter to which such aid is appropriate, and the giving of recommendations to a federal judge or attorney as to sentences of those convicted of violating the liquor laws is an official duty within the meaning of §§ 39 and 117, Criminal Code, and the giving of gifts to, and acceptance thereof by, officers in that department to influence their reports and recommendations constitute bribery under, and are punishable by, such sections.

206 F. 818 reversed.

The facts, which involve the validity of indictments under §§ 39 and 117, Criminal Code for giving and accepting bribes, are stated in the opinion.

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HUGHES, J., lead opinion

MR. JUSTICE HUGHES delivered the opinion of the Court.

Separate indictments were found against the several defendants. There were two indictments against the defendant Birdsall (which were consolidated), charging him with having given to Brents and Van Wert, respectively, a bribe in violation of § 39 of the Criminal Code. The indictments against Brents and Van Wert were for accepting the bribes in violation of § 117. Demurrer to each indictment, upon the ground that it charged no offense, was sustained by the district court. 206 F. 818. The cases are brought here under the Criminal Appeals Act. 34 Stat. 1246, c. 2564.

In view of the nature of the question presented, it is not necessary to consider the indictments separately. According to the allegations, Birdsall was attorney for certain persons who, on indictment for unlawfully selling

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liquor to Indians, had pleaded guilty and had been sentenced at the April term, 1910. Application had then been made to the judge of the court for a reduction or suspension of the sentences, and it was also stated that an effort would be made to obtain a commutation by executive action. Brents and Van Wert were special officers, duly appointed by the Commissioner of Indian Affairs, under the authority of the Secretary of the Interior, for the suppression of the liquor traffic among the Indians. It was averred that, by the regulations and established requirements of the Department of the Interior, they were charged with the duty of informing and advising the Commissioner of Indian Affairs, either directly or through other subordinates, concerning all matters connected with the conviction and punishment of persons violating the laws of the United States in reference to the liquor traffic affecting the Indians, and particularly

to inform the said Commissioner whether or not the effective suppression of the liquor traffic with and among Indians would be furthered or prejudiced by executive or judicial clemency in any particular case.

After referring to the conviction and sentence of the persons named, and to the application then made to the judge for a reduction or suspension of sentence, each indictment continued as follows:

That then and there the judge of the said court announced that he would not change or reduce or suspend the said sentences or any part thereof, unless a recommendation to that effect was made to him by the said Commissioner of Indian Affairs, and the United States attorney in the...

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