Democratic Sentinel, Volume 13, Number 5, Rensselaer, Jasper County, 22 February 1889 — EX-SENATOR M'DONALD VS. JUDGE WOODS. [ARTICLE]

EX-SENATOR M'DONALD VS. JUDGE WOODS.

HShow\>s That the Supplemental Instruoi one in the Dudley Case Are in Conflict With All the Precedents, as With the hirst Charge. [lndianapolis Sentinel.] To the Editor —Sir: When the second charge given by Judge Woods to t‘.;e federal grand jury injjrelation to bribery in electiens in onr state was published, I expressed surprise, believing as I did that it was a departure from the first, I also said it would bear the criticism of being intended to shield Dudley from indictment, and at all events it would probably have that effect. These and other expressions of a similar character, it seems, were framed into what purported to be interviews with me, in some of which it was made to appear that I had r-fleoted on the personal character and integrity of Jndge Woods, when it was not my intention to do more than express a strong dissent to the law laid down in the seooud charge, believing that in giving it the judge had committed a grave error of law, and to deprecate the consequences that would follow from it. My personal relations with Jndge Woods and my faith in his integrity would not permit me to believe, much less express, such a belief as that he had corruptly given the charge. I desire, therefore, in the most unqualified mauner, to isclaim any intent orjpurpose to reflect upon the character of Judge Yv oods or the charactdr of any o ;e not implicated in the crime.

1 desire to nay further, however, that since these charges have been published I have given the subject a much more careful oxamination than I did before, and the result of that examination has been to deepen my conviction that they cannot be reconciled, and that the law as laid down in the second charge is erroneous. It seems to me clear that the last clause of sec. 5511, m plain and unmistakable language, ‘makes any one guilty who counsels bribery,” “and while it is not a crime to attempt bribery, it is a crime to advise another to make the attempt” That is, one who counsels or advises any voter, person or officer to bribe any voter at any electicn for representatives or delegates o cengress, or advises the attempt to be made, is guilt / under that clause, although the person advised and counseled neither bribes any such voter nor attemp s to do so. The advice or counsel to commit the crime of bribery is a substantive offense under the statute, and this is wnat I understood Judge Woods, in substance, to say in his first charge, while in his second eharge he savs in express terms t v at this is not so, but (to use his own language), “in any case, besides the mere fact of advice or counsel, it must be shown that the erime contemplated w s committed, or an attempt made to commit it,” thus putting it into the category of accessory crimes or crimes in the nature of accessories, in which, of course, there mnst always be a principal before there can be accessories.

This presents the precise issue between Judge Woods, as expressed in his second charge, and myself. When I firs examined the statute, which I did at the request of Judge Woods, I eame to the conclusion that the crime was complete when the counsel or advice was given, and so informed him in a brief note written before he gave his first charge, in which I used this language: “It seems to me that the specific language of , hi statute takes it out of the common law rule of construction (I might have added, in regard to accessories) and makes the advice given a substantive offense without reference to whether an overt act was committed.” The text writers clhss offenses of this kind under

the head of “attempts,” and the distinction between them and accessory crimes is that the attempt is all that is necessary to complete the eriroe. Mr. Bishop, in his work on criminal law, paragraph 767, thus defines this kind of offense: “A common form of attempt ia te solicit another to commit a crime; the act which is a necessary ingredient in erery offense consists in the solicitation. Thas to incite a servant to steal his master’s goods, or ether poison to undertake larceny * * * to offer merely a bribe 10 request, it seems, one to post up a threatening notice, are severally indictable misdemeanors though the person approached dec lines the persuasion.” The authorities, as 1 understand, upon which Judge Woods and these who agree with him in regard to his second charge rely, are sec. 5,323 of the U. o . revised statutes, Republicavs. Roberts; 1 Dallas, 39, and Reg. vs Gregory, 10, Cox

'oV ' / C. C., 459. I hare exan ined all these citations with care and find nothing in anj of them that in the remotest degree snsta’ns Judge Woods’ second charge. On the contrary, so far as they bear upon the question, they are* directly against it Sec. 5,323 of the revised statutes simply defines the offense of an accessary before the fact in the crime of piracy or murder on the high seas. The case in Ist Dallae was an indictment under the Pennsylvaniajlaw for treason against the commonwealth, committed during the Revolutionary war, in which Roberts was charged with aiding and assisting the enemies of the state in open war, etc., by enlisting in tbeir armies and by persuading others to enlist. He was convicted on the first oharge, but acquitted of the other because the persons whom he so’t to persuade did hot enlist, tnd therefore the persuasion did not aid and assist the enemy. How this supports the judge’s second charge is more than 1 can see. The ca e in 10th Cox fully sustains the first charge, but is squarely against +he second. It takes the distinction between substantive crimes and ao* essary crimes, and places attempts to incite others to commit felony or other high crimes in the list of substantive crimes, as misdemeanors. As this is an important case and seems to be much relied on by J udge Woods and his friends, I have thought best to give it in extenso. Gregory was indicted, tried and convicted for soliciting and inciting John White and two other servants of one Kirk feloniously to steal from their said master one bushel of barley, etc. There were three counts in the indictment. The offense was charged as misdemeanor. “There was evidence,” so says the report, “upon all the counts of the indictment in proof of the offense charged, but no one of the three servants named stole any barley in compliance with defendant’s solicitation or otherwise.” Foster, for the defendant, insisted that the charge ought to have been laid under 24 and 25 Yict., which made counselling, procuring or commanding the commission of a felony, a felony on the part of the person counselling, tc., and that, therefore, the d ifendant had been indicted for the vrong crime and that the verdict must be arrested. The motion was overruled and the conviction affirmed by an opinion of Judge Kelley, which I quote here at length: “Kelley, of C. B This conviction mnst be affirmed. The prisoner was indicted and convicted of a misdemeanor, and two questions have been raised by Mr. Foster: first, whether the expressions “soliciting and inciting” in an indictment are eouivalent to and identi*4.l with the words “counseling and procuring” in 24 and 25 Yict. C. 94, s. 2; so that though a counseling or procuring s not charged in the indictment, the allegation therein of soliciting and inciting is to be taken as an allegation of counseling and procuring. It is unnecessary, however, to decide

that question, and it is sufficient to say that I think those questions may bear different meanings and that I do not accede to the argument of Mr. Foster. As to the second point, looking at the provisions of tke statute, I think it absolutely necessary to support a conviction under the above seotion that a substantive felony has been committed by the person counseled. It is the grammatical construction of the section. How oan there be an accessary before the fact to the “principal felony” or a “principal fe on” if no felony has been committed? The offense committed therefore, is properly charged as a misdemeanor, and the conviction is right. The opinion of the learned judge, “that the grammatical construction” of the

crimes act of 24 and f 5 Viot., referred to in the motien, made the crime of counseling, etc., an accessory crime and dependent upon the commission cf the crime counseled, was undoubtedly correct, and that there could be no felony in giving the oounsel unless a felony had been committed m pursuance of the counsel givcß. It will be seen that it is jnst what its title indicates, “an act relating to accessories to and abettors of indictable offenses.” In affirming the verdict the court sustained a conviction for the offense of soliciting and inciting to commit crime, although the crime solicited had not been committed, nor, so far as appears, any attempt made to commit it The case was affirmed on the authority of the King vs. Higgins, 2 East 5 This case is upon an indictment against Higgins for a like offense as that charged against Gregory in 10th Oox, of soliciting a servant to steal his master’s goods. The indictment did not charge that any goods were stolen or that any other act was done except soliciting, etc. The question of the sufficiency of such an indietment was adjourned into the king’s bench. Uhief Justice Kenyon and oth°r judges gave opinions in which they sustained the indictment on the ground that it was a misdemeanor at common law for one to solicit or counsel another to eommit a felony or other high crime, although no act were done in pursuance of such counsel or tolicitat on. The syllabus of the case is as follows: “To solicit a servant to steal his master’s goods is a misddmeanor at common law; though it be not charged in the indictment that tne servant stole the goods, nor that any other act was done exeept the soliciting and .nciting.”

It was urged against this proposition that it required both the aot and the intent to complete an offense, and that here waa onb the attempt, but the learned judges sai I, Hud in this all substantimly agreed, that “the act of soliciting and inciting” was all the aet that the offense required, and that soliciting and inciting one to commit a felony or other high crime sufficiently disclosed the evil intention.

Bribery was an offense at common law, and to bribe or at'empt to bribe an elector at any government election was a high erime, and consequently under these authorities any one who counseled and advised, or, to use the common law terms, splicited or incited another to bribe such elector, although nothing be done by the party solicited toward the decomp lishment of brib ry, was guilty of a misdemeanor at eommonlaw, the act of soliciting being the only act required to consummate it. But it may be said that there are no common law offenses under the federal government. That is very true, but where vou find a statate that in effect defines an offense at common law, you look into the common law to see what is necessary to oomplete that offease That is just what Judge Woods attempted to ds, but fell into the error of looking at the wrong class of eases —that is, accessory offenses and sot substantive offenes. la that mistake is to be

found the error committed by him in his second charge. In vindicating Woods from anything save an error es law, I hav*. thought it right that my own views of the statute sho’d accompany the vindication, as it is a matter of very considerable interest to the people of our state. J. E. McDonald. Washington, D. 0., Feb. 16.

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H. B. MURRAY.