United States v. Dietrich

CourtUnited States District Courts. 8th Circuit. United States District Court of Nebraska
Citation126 F. 664
Decision Date04 January 1904
PartiesUNITED STATES v. DIETRICH et al.

126 F. 664

UNITED STATES
v.
DIETRICH et al.

United States Circuit Court, D. Nebraska.

January 4, 1904


Indictment for conspiracy under section 5440 of the Revised Statutes (U.S. Comp. St. 1901, p. 3676), returned into the District Court November 16, 1903, and remitted to the Circuit Court under section 1038 (U.S. Comp. St. 1901, p. 723). The offense charged, as set forth in the indictment is:

'That Charles H. Dietrich and Jacob Fisher, late of the said district of Nebraska, within said judicial circuit heretofore, to wit, on the twentieth day of April, in the year of our Lord, one thousand nine hundred and one, at the city of Hastings, Adams county, within the district and state of Nebraska, and within the jurisdiction of this court then and there being, and the said Charles H Dietrich then and there being a member of Congress of the United States of America, to wit, a member of the Senate of the said United States of America, then and there duly elected, qualified, and sworn according to law to perform the duties of his said office, and he, the said Charles H Dietrich, and he, the said Jacob Fisher, did then and there unlawfully, corruptly, and wickedly conspire, combine, confederate, and agree together and with each other to commit an offense against the United States and to violate a law of the United States, to wit, section one thousand seven hundred and eighty-one of the Revised Statutes of the United States, by the said Charles H. Dietrich then and there fraudulently, willfully, corruptly, unlawfully, and knowingly agreeing with the said Joseph Fisher to take and receive the sum of one thousand three hundred dollars from the said Jacob Fisher for procuring and aiding to procure a certain office for the said Jacob Fisher, to wit, the office of United States postmaster at Hastings, state of Nebraska, from the government of the [126 F. 665] United States, and the said Jacob Fisher by then and there agreeing to give to the said Charles H. Dietrich the said sum of one thousand three hundred dollars for procuring and aiding to procure a certain office for him, the said Jacob Fisher, to wit, the said office of United States postmaster at Hastings, state of Nebraska, from the government of the United States, he, the said Jacob Fisher, then and there well knowing the said Charles H. Dietrich to be a member of Congress of the United States of America, to wit, a member of the Senate of the said United States of America, as aforesaid.'

This is followed by the specification of an overt act charged to have been done by Fisher to effect the object of the conspiracy. In support of a demurrer to the indictment the defendants urge: (1) An agreement between a member of Congress and another person whereby the former agrees to receive from the latter, and the latter agrees to give to the former, a bribe under the circumstances described in the indictment, cannot be made the subject of a prosecution for conspiracy under section 5440. (2) Two defendants are in a single count of the same indictment severally charged with distinct and several offenses.

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

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

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

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

This indictment is predicated upon section 5440 of the Revised Statutes (U.S.Comp. St. 1901, p. 3676), which, as amended by the act of May 17, 1879, c. 8, 21 Stat. 4 (U.S.Comp.St. 1901, p. 3676), provides:

'If two or more persons conspire either to commit an offense against the United States or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, or to imprisonment for not more than two years or to both fine and imprisonment in the discretion of the court.'

The gravamen of the charge is that the defendants conspired-- united in purpose and agreed together-- to commit an offense against the United States, and the object of the conspiracy is stated to have been--

'To violate a law of the United States, to wit, section one thousand seven hundred and eighty-one of the Revised Statutes of the United States, by the said Charles H. Dietrich then and there fraudulently, willfully, corruptly, unlawfully, and knowingly agreeing with the said Jacob Fisher to take and receive the sum of one thousand three hundred dollars from the said Jacob Fisher for procuring and aiding to procure a certain office for the said Jacob Fisher, to wit, the office of United States postmaster at Hastings, state of Nebraska, from the government of the United States, and the said Jacob Fisher by then and there agreeing to give to the said Charles H. Dietrich the said sum of one thousand three hundred dollars for procuring and aiding to procure a certain office for him the said Jacob Fisher, to wit, the said office of United States postmaster at Hastings, state of Nebraska, from the government of the United States.'

Section 1781 of the Revised Statutes (U.S.Comp.St. 1901, p. 1212) makes it an offense against the United States (1) for a member of Congress or any officer or agent of the government to directly or indirectly take, receive, or agree to receive any money, property, or other valuable consideration whatever, from any person, for procuring [126 F. 666] 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; (2) for any person to directly or indirectly offer or agree to give, or give, or bestow any like consideration for the procuring, or aiding to procure, any such contract, office, or place; and (3) for any member of Congress to directly or indirectly take, receive, or agree to receive any such consideration 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. The section therefore describes three principal offenses, each composed of essential elements enumerated in its description., o charge that the object of a conspiracy was to violate this section, without saying more, leaves it uncertain which of these offenses is intended to be described, and whether the essential elements of any of them are present. The rules of criminal pleading require greater certainty and precision than this, and the statement in this indictment that the object of the conspiracy was to violate section 1781, while not harmful, adds nothing to the indictment. Eliminating this, the charge is that the defendants conspired-- united in purpose and agreed together-- to commit an offense against the United States, by Dietrich agreeing to receive a bribe from Fisher for procuring the appointment of the latter as postmaster, and by Fisher agreeing to give to Dietrich this bribe for that...

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58 practice notes
  • May v. United States, No. 9610-9612.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 24, 1949
    ...of a conspiracy charge. It is like charging a conspiracy to conspire. This is illustrated in United States v. Dietrich, C.C.D.Neb.1904, 126 F. 664. In that case two defendants were indicted under Rev.Stat. § 5440 (the counterpart of 18 U.S.C. § 88 (1946)) for conspiring to violate Rev.Stat.......
  • United States v. Michael, Crim. No. 77-455.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • August 17, 1978
    ...to commit the offense is not an indictable conspiracy," 287 U.S. at 122, 53 S.Ct. at 37, citing inter alia United States v. Dietrich, 126 F. 664 (C.C. Neb.1904), which reversed a conviction for conspiracy to violate a statute punishing the receiver and the giver of a bribe to a member of Co......
  • People v. Carter, Docket No. 64583
    • United States
    • Supreme Court of Michigan
    • February 18, 1983
    ...Davis, 408 Mich. 255, 290 N.W.2d 366 (1980). Wharton's Rule has also been applied in bribery cases. See, e.g., United States v. Dietrich, 126 F. 664 (D.Neb., 1904). It has also been applied to offenses such as buying, selling or delivery of contraband, and receiving stolen For additional di......
  • Calhoun v. Superior Court In and For San Diego County
    • United States
    • United States State Supreme Court (California)
    • December 30, 1955
    ...74 Pa.Super. 234; Com. v. Maxberry (receiving stolen goods), 13 Pa. Dist. & Co. R. 371; United States v. Dietrich (bribery), C.C., 126 F. 664; United States v. New York Cent. & H. R. Co. (illegal rebate), C.C., 146 F. 298. In the present case, as in the Gebardi case, if conspiracy is held t......
  • Request a trial to view additional results
58 cases
  • May v. United States, No. 9610-9612.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 24, 1949
    ...of a conspiracy charge. It is like charging a conspiracy to conspire. This is illustrated in United States v. Dietrich, C.C.D.Neb.1904, 126 F. 664. In that case two defendants were indicted under Rev.Stat. § 5440 (the counterpart of 18 U.S.C. § 88 (1946)) for conspiring to violate Rev.Stat.......
  • United States v. Michael, Crim. No. 77-455.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • August 17, 1978
    ...to commit the offense is not an indictable conspiracy," 287 U.S. at 122, 53 S.Ct. at 37, citing inter alia United States v. Dietrich, 126 F. 664 (C.C. Neb.1904), which reversed a conviction for conspiracy to violate a statute punishing the receiver and the giver of a bribe to a member of Co......
  • People v. Carter, Docket No. 64583
    • United States
    • Supreme Court of Michigan
    • February 18, 1983
    ...Davis, 408 Mich. 255, 290 N.W.2d 366 (1980). Wharton's Rule has also been applied in bribery cases. See, e.g., United States v. Dietrich, 126 F. 664 (D.Neb., 1904). It has also been applied to offenses such as buying, selling or delivery of contraband, and receiving stolen For additional di......
  • Calhoun v. Superior Court In and For San Diego County
    • United States
    • United States State Supreme Court (California)
    • December 30, 1955
    ...74 Pa.Super. 234; Com. v. Maxberry (receiving stolen goods), 13 Pa. Dist. & Co. R. 371; United States v. Dietrich (bribery), C.C., 126 F. 664; United States v. New York Cent. & H. R. Co. (illegal rebate), C.C., 146 F. 298. In the present case, as in the Gebardi case, if conspiracy is held t......
  • Request a trial to view additional results

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