In re Wellcome

• Citation: 58 P. 47,23 Mont. 213
• Parties: In re WELLCOME
• Decision Date: 01 August 1899
• Court: United States State Supreme Court of Montana

58 P. 47

23 Mont. 213

In re WELLCOME

Supreme Court of Montana

August 1, 1899

In the matter of the disbarment of John B.Wellcome. Accused objects to the sufficiency of the accusation. Overruled.

Jesse B.Roote, Carpenter & carpenter, and Wm. Wallace, Jr., for accused. C. B. Nolan, amicus curiae.

PER CURIAM.

After our decision holding that this court had jurisdiction to hear and determine the charges made against the accused herein but that we would decline to inquire into the truth of the charges unless the accusation stated facts warranting the exercise of our jurisdiction, and which were not stated in the accusation considered on the former hearing (58 P. 45) the attorney general filed affidavits stating the grounds upon which he asks the interposition of this court. The affidavit of the attorney general is as follows "Affiant shows that during the session of the last legislative assembly, and bearing upon the corrupt use of money to influence the action of the members of said legislative assembly in voting for a United States senator testimony was given before a legislative committee appointed for the purpose of hearing testimony regarding rumors as to the corrupt use of money, and that on the 10th day of January, 1899, a report was made by said committee, at a joint session of the legislative assembly, in which report was incorporated the testimony of Fred. Whiteside W. A Clark, Henry L. Myers, members of said legislative assembly, and A.J. Campbell; that upon the presentation of said report a resolution was duly moved, seconded, and adopted by said joint assembly, which said resolution is as follows: 'Resolved, by the house of representatives in joint assembly with the senate, that the evidence submitted to the joint assembly by the joint committee of the senate and house is sufficient to convict the persons therein named of the crime of bribery in any district court of this state, and therefore we request that the judge of the district court of the First judicial district in and for the county of Lewis and Clarke call a session of the grand jury in said district to take up and examine into the matters stated in said report, as they would in any other case of alleged crime against the peace and dignity of the state;' that on the 12th day of January, 1899, the Honorable Sidney H. Mclntire, judge of the district court of the Firs judicial district, deeming occasion therefor, issued a call for a grand jury to investigate the charges of bribery reported in connection with the election of a United States senator, and that on the 14th day of January, 1899, a grand jury was regularly impaneled. and thereupon entered upon the performance of its duty; that from the said 14th day of January,1899, with interruptions through adjournment, the said grand jury continued in session until the 26th day of January, 1899; that several witnesses were examined before said grand jury respecting the alleged use of money in the senatroial contest then pending. Your affiant says that he was present at all of the sessions of said grand jury when witnesses were examined, and that there was also present at all of said sessions Odell W. McConnell, the duly elected, qualified, and acting county attorney of Lewis and Clarke county. Your affiant further says that he conducted the examination of all of the witnesses touching bribery charges appearing before said grand jury, with the exception of John B. Wellcome, who was not examined by your affiant, and who, in the judgment of your affiant, considering the character of the testimony adduced before said grand jury, should not have been brought before said grand jury, as will appear further on; that all of the witnesses appearing before said grand jury were likewise examined by said Odell McConnell, and that the examination of Mr. Wellcome was conducted entirely by the said Odell W. McConnell. Your affiant further says that he made a stenographic report of the testimony given before said grand jury, and attaches hereto, in narrative form, all of the testimony adduced before said grand jury, except in the few instances where the testimony appears by question and answer; that the testimony affixed hereto is correct, and represents substantially all of the testimony of any materiality adduced before said grand jury during its session, until the time when the report hereinafter set forth was made by said grand jury, and the report thus made was based exclusively upon the testimony herewith set forth; that on the 26th day of January, 1899, the said grand jury completed its investigation of said bribery charges, and reported to the said Hon. Sidney H. McIntire, judge of the district court of the First judicial district of the state of Montana, in and for the county of Lewis and Clarke, as follows: ' In the District Court of the First Judicial District of the State of Montana, in and for the County of Lewis and Clarke. In the Matter of the Grand jury. To the Honorable Sidney H. Mclntire, Judge of the District Court of the First Judicial District of the State of Montana, in and for the County of Lewis and Clarke The grand jury of Lewis and clarke county, state of Montana, duly impaneled, sworn, and charged on the 14th day of January, A.D. 1899, herewith submit the following report of its deliberations upon the charges made by the committee of investigation appointed by the Sixth leginlative assembly of the state of Montana, now in session: We have been in session ten days, and have examined forty-four witnesses, and have also examined all papers, documents, and other legal evidence touching the question under consideration, and have had produced before us all witnesses who we had reason to believe could shed light upon the questions of bribery, perjury, and conspiracy. In the interrogation of witnesses, and in the construction of the law appertaining to mat ters before us, we have been ably assisted by the attorney general and the county attorney of Lewis and Clarke county. We have carefully weighed all the evidence submitted to us, and, while there has been some evidence which tends to show that money has been used in connection with the election of a United States senator, it has been contradicted and explained in such a way that all the evidence introduced before us, taken together, would not, in our judgment, warrant a conviction by a trial jury. While we have not finally concluded our labors,we deemed the investigation of the, matters relading to bribery, perjury, and conspiracy of so paramount importance that a full report on these should be made before taking up other matters congnizable by us, and bringing in a final report. Respectfully submitted. C.F. Ellis, Foreman.' Your affiant respectfully shows and says that upon the presentation of said report he objected to its acceptance, and that in the event this report was final, so far as the investigation of bribery charges or the commission of conspiracy and bribery went, he asked that another grand jury be impaneled to take up the investigation of these bribery, perjury, and conspiracy charges. That, as an item of evidence, were thirty thousand dollars alleged to have been deposited with one Fred. Whiteside, in consideration for which votes should be cast for W.A. Clark for the office of senator of the United States, and that, so long as said evidence had a physical existence, with all of the participants, as shown by the testimony, appearing before said grand jury, an investigation which failed to make findings for bribery or perjury was incomplete. But your affiant says: That, respecting his said application to secure a further and more effective investigation, the Honorable Sidney H. McIntire, jury of said court aforesaid, refused to impanel another grand jury, and received said report as a final report, so that no further investigation was conducted by said grand jury then impaneled respecting those bribery charges. Respecting the proceedings had upon the submission of said report, the minutes of the court, of date January 26, 1899, read as follows: 'The grand jury came into court this day, and, upon being called, all answered to their names. Whereupon the court asked if they had anything to report. Whereupon the foreman of said grand jury, in the presence of the grand jury and in open court, presented to the court a partial report in writing. Whereupon the said partial report was read by the clerk, by order of the court. Whereupon the attorney general of the state of Montana addressed the court in reference to said report, objecting to the receipt of same, and requesting the court to impanel another grand jury. Whereupon the court ordered that the said partial report of the said grand jury be received and filed, and the partial report was then and there duly filed by the clerk, and thereupon the grand jury retired to their room to continue their labors.' That no further investigation was had by said grand jury, until finally discharged, of the charges of bribery, perjury, and conspiracy consequent upon the alleged use of money as hereinbefore set forth. Your affiant further says that no information has been filed against the said John B. Wellcome, charging him with the crime of bribery or any other offense, and there is not now pending in any court, so far as your affiant is informed, any charge for any acts of bribery alleged to have been committed by him as set forth in the petition for disbarment now on file in this court; that during the sessions of said grand jury the question of the propriety of securing the presence of John B. Wellcome, before said grand jury to testify arose, and your affiant verily believed that some risk attached to his being compelled, through the process of the court, to appear before said grand jury, in the event an...