United States v. Dietrich

• Decision Date: 08 January 1904
• Citation: 126 F. 676
• Parties: UNITED STATES v. DIETRICH.
• Court: U.S. District Court — District of Nebraska

126 F. 676

UNITED STATES v. DIETRICH.

United States Circuit Court, D. Nebraska.

January 8, 1904

Indictment charging defendant, while a senator in Congress from the state of Nebraska, 'duly elected, qualified and sworn according to law to perform the duties of his said office,' with taking, receiving, and agreeing to receive a bribe from Jacob Fisher for procuring and aiding to procure for said Fisher the office of postmaster at Hastings, Neb.

Defendant entered a plea of not guilty. The case was called for trial and, after a jury was impaneled and sworn, the United States attorney made an opening statement to the court and jury of the facts which the government proposed to prove in support of the charge. From this statement it appeared that on March 28, 1901, defendant was elected by the Legislature of the state of Nebraska to the office of senator in Congress from that state to fill a vacancy in a term then current, and which would continue until March 4, 1905; that at the time of such election defendant was governor of the state, the term of which office would continue until January, 1903; that he held the office of governor until May 1, 1901, when he resigned; that the credentials of his election as a senator were submitted to the Senate December 2, 1901, and later during that day, following the favorable action of the Senate upon his election, credentials, and qualifications, he took the oath of office as a senator at the bar of the Senate, and assumed the duties of a senator; that no session of the Senate intervened between March 28, 1901, and December 2d following; that no part of the salary of a senator was paid to defendant until December 14, 1901, when he received an installment of such salary for a period dating back to the time of his election; and that all the acts charged against the defendant in this indictment were committed after March 28, 1901, and long before December 2d following. After protesting defendant's entire innocence, counsel for defendant, being of opinion that the facts proposed to be proved by the government could not constitute an offense against the United States because they did not show defendant to have been a member of Congress at the time of the commission of the acts charged, moved the court to direct the jury to render a verdict of not guilty. In response to an inquiry by the court, the United States attorney declared that his opening statement fully and accurately covered all the facts bearing upon this subject. Argument was then had upon the motion.

W. S Summers, U.S. Atty., and S. R. Rush, Asst. U.S. Atty.

John C. Cowin and R. A. Batty, for defendant.

Before VAN DEVANTER, Circuit Judge, and MUNGER, District Judge.

VAN DEVANTER, Circuit Judge (after stating the facts as above).

This is a prosecution under section 1781 of the Revised Statutes (1 U.S.Comp.St. 1901, p. 1212), which declares:

'Every member of Congress or any officer or agent of the government who, directly or indirectly, takes, receives, or agrees to receive, from any person for procuring, or aiding to procure, any contract, office, or place, from the government or any department thereof, or from any officer of the United States, for any person whatever, or for giving any such contract, office, or place to any person whomsoever, * * * shall be deemed guilty of a misdemeanor, and shall be imprisoned not more than two years and fined not more than ten thousand dollars. * * * And any member of Congress or officer convicted of a violation of this section, shall, moreover, be disqualified from holding any office of honor, profit, or trust under the government of the United States.'

The motion under consideration presents the single question: Was defendant a member of Congress at the time of the commission of the acts charged? Before entering upon its consideration two matters well recognized deserve mention.

Where, by the opening statement for the prosecution in a criminal trial, and after full opportunity for the correction of any ambiguity, error, or omission in the statement, a fact is clearly and deliberately admitted which must necessarily prevent a conviction and require an acquittal, the court may, upon its motion or that of counsel, close the case by directing a verdict for the accused. The court has the same power to act upon such an admission that it would have to act upon the evidence if produced. It would be a waste of time to listen to evidence of other matters when at the outset a fact is clearly and deliberately admitted which must defeat the prosecution in the end. Oscanyan v. Arms Co., 103 U.S. 261, 26 L.Ed. 539; Liverpool, etc., Co. v. Commissioners, 113 U.S. 33, 37, 5 Sup.Ct. 352, 28 L.Ed. 899; Butler v. National Home, 144 U.S. 64, 71, 73, 12 Sup.Ct. 581, 36 L.Ed. 346; Pratt v. Conway, 148 Mo. 291, 299, 49 S.W. 1030, 71 Am.St.Rep. 602; Lindley v. Atchison, etc., Co., 47 Kan. 432, 28 P. 201.

Excepting that treason is defined by the Constitution, there are no crimes against the United States save such as Congress has expressly defined or recognized and made punishable. The federal courts have no jurisdiction over common-law crimes. Cooley, Const. Lim. (6th Ed.) p. 30; Black Const. Law (2d Ed.) p. 157. In Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648, the Supreme Court said upon this subject:

'Certain implied powers, it is admitted, must necessarily result to courts of justice, such as to fine for contempt or imprison for contumacy; but the jurisdiction of crimes against the authority of the United States is not among such implied powers, the universal rule in the federal courts being that the legislative authority of the Union must first make an act a crime, affix a punishment to it, and prescribe what courts have jurisdiction of such an indictment, before any federal tribunal can determine the guilt or innocence of the supposed offender.'

Other decisions applying this rule are United States v. Hudson, 7 Cranch, 32, 3 L.Ed. 259; United States v. Coolidge, 1 Wheat. 415, 4 L.Ed. 124; United States v. Hall, 98 U.S. 343, 345, 25 L.Ed. 180; United States v. Britton, 108 U.S. 199, 206, 2 Sup.Ct. 531, 27 L.Ed. 698; United States v. Eaton, 144 U.S. 677, 687, 12 Sup.Ct. 764, 36 L.Ed. 591. The question, therefore, in every criminal prosecution in the courts of the United States, is not whether the act charged is immoral or abhorrent to all right-minded members of society, but does any act of Congress make it criminal and provide for its punishment?

If any act of Congress has made the acts here charged criminal, and has provided for their punishment, it is section 1781. None other is referred to by counsel for the government. This section contains two distinct provisions which are in marked contrast. The first, heretofore quoted, makes it a punishable offense for any 'member of Congress or any officer or agent of the government' to take, 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 or any of its departments or officers. The second 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, services, action, vote, or decision on any question, matter, cause or proceeding which may then be pending, or may by law or under the Constitution be brought before him in his official capacity, or in his place as such member of Congress. ' Giving to the words employed their ordinary meaning, the first provision seems to be directed against persons who are members of Congress, or members-elect.

Is there anything in the statute which indicates that this difference was not intended? We think not. Officers and agents of the government are named in the first provision but not in the second. So far as it concerns members of Congress, the first provision principally, if not wholly, related to procuring offices, contracts, or places for others-- matters in which action by members of Congress is optional, and not a duty enjoined by law; while the second provision principally, if not wholly, relates to matters wherein action by members of Congress is enjoined as an official duty, and is not optional. The first provision is accompanied by the declaration that 'every person who * * * offers or agrees to give, or gives, or bestows' a bribe 'for the procuring or aiding to procure any such contract, office or place,' shall be deemed guilty of a misdemeanor and punished therefor; but the second provision is not accompanied by any declaration against the person who gives or agrees to give the bribe. The differences in terms and subject-matter make the two provisions distinct and independent. To read into the second the words 'or any officer or agent of the government,' and the declaration against the person who gives or agrees to give the bribe, and to read into the first the words 'after his election as such member,' is to reconstruct and supplement the work of Congress. This the courts cannot do. Their business is not that of forming statutes, but that of expounding the existing text by a fair interpretation. The object of their inquiry is not what the law ought to be, but what it is. The sense in which words are used in statutes is in part reflected by other words with which they are associated. In the first provision of this section the words 'member of Congress' are associated with the words 'officer or agent of the government,' which imply actual and present, rather than expected and future, incumbency of an office or agency. In the second provision the words 'member of Congress' are used in connection with the words 'after his election as such member,' which plainly include the period between election and...