Democratic Sentinel, Volume 13, Number 12, Rensselaer, Jasper County, 12 April 1889 — A GREAT QUASHER QUAS[?]ED. [ARTICLE]

A GREAT QUASHER QUAS[?]ED.

Judge Claypool Blisters Woods [lndianapolis Sentinel, April 4.] “Ln the Sentinel of March 30, 1889,” said Judge Solomon Clavpool yesterday, “I find the following statement from Judge Woods made in an interview, to-wit: ‘I had several conversations with Judge Claypool before giving my fisrt instructions and he urg’d upon me the importance of immediately charging th} j ry. 'Veil, [ told Claypool at the time that 1 could put the jury to work an that they could go along for awhile on unimportant cases, wh Je in the meantime 1 would investigate certain points that he was uir ecided upon and when it became necessary to reinstruct the jury I would be prepared.

“This is presumed to correctly report the judge, s this anguage cov rs a point about which there has been some contention between Judge Woods and myself, and 1 presume that I may be permitted to speak now, as I think it is my right to do so. In the Indianapolis Journal of the 17th of January is the following: ‘The assertion that Judge Woods has changed his views since his first charge (to the grand jury) was delivered is not true. His construction of the law has been the same from the beginning—perfectly clear and entirely unchanged His views have been known from the beginning to Mr. Claypool and other prominent lawyers. “In another issue of the Journal, the date of which cannot now be given, is the following: “His (Judge Woods’) charge reveals the fact that the acting district attorney has been trying hard to force a different conclusion of the law on the grand jury and compel them to find an in.hctment, evidence or no evidence.

“Now I have no objection to Judge Woods and his friends doing whatever they may to prove, if they can, that tke judge’s first and s oond instructions are con sistent and to free him from every imputation of blame; but not at ;he expense of justice to me. — Judge Woods did not at or before ris first instructions tell me he would reserve certain points for iurther investigation and instructions. I can conceive that the judge may have had some such talk with another person and afterward got the impression that it was with me. Certain I am, however, that he did not have such a conversation with me. I did not all alongj from the beginning’ beween the first and second instruc-

tions know that the judge’s views were as expressed in bio second instructions. Nor did lat any time attempt to get an indictment against Dudley, ‘evidence or no evidence,* disregarding the judge’s views of the law. Efforts to procure an indictment proceeded upon the ground that ‘:o advise the bribing of voters was a crime.’ — Every person connected with the matter, attorneys and grand jurors, so understood the first instructions; so did everybody else, as I believe, who gave the subject any attention. The public press did, uniformly. No expression to the contrary can be found. Demo-

cratic and republ can papers alike so interpreted the first iustruotions If the first instructions were the same as the second, and intended to convey the same idea, how unfortunate the judge was in making himself understood incorrectly. The fact is, the second and first instructions a»-e directly opposed to each other. It is simply nonsense and sham to’say thev are the same. The first says ‘to advise the bribing of voters is a crime.’ The second says ‘to advise the bribing of voters is ioc a crime.’ It has been said that in the first instructions the judge only stated the law and in the second instructions defined the law, first stated more fully. That is to say, defining was to insert the adverb ‘not’ where before it had been omitted

with a view to further investigate said instructions. At the proper time, after further investigation, the ‘not’ was inserted at the right place. For what? “Judge Woods may have told some other person or persons that he intended to reserve some points of law for sec> nd instructions. I have no rightfto, and do pot intend to, question this; but wnatever may have I een his purpose as to this, at some time prior to his first instructions, he abandoned that purpose before his first instructions were given. This is evident from the fact that his first instructions clearly indicated a purpo-e to go into the whole subjeci, and show that he did go into the subject fully. First, on the subject of jurisdiction, he called the attention of the jurv to sec. 731 of the U. S. statut s, which provides that, when an offense ‘is begun in one judicial district and completed in another, it shall be deemed to have been committed in either.’ This covered an important point in Dudley’s case, as Dudley’s letter was mailed from New York io Indiana. Then, after devoting about a dozen lines to other matters he came to the subject of the election laws. I quote him, as follows: “The are some special sections I will speait to you of now, of the laws bearing upon elections, which constitute one of the classes of offenses you may be called upon to consider esp ecially. W e have j ust passed through an election of this kind and there are particular provisions of law bearing on such teations with whien you should be thoroughly acquainted. “What does this pr.lude indicate? Boes it indicate ‘bent on ies©:ve?’ Or a disp sition to elaboration for the purpese of making the jury ‘thoroughly acquainted’ with the provisions bearing on such elections? Again: “The federal la »s provide for

tive protection of congressmen esp cially, but by a customary and neeessary construction the matter ;hey contai n relating to the election of congressman has .also to be applied in many respects to elecions in general, in the absence in some parts of separate statutes. Iwdl call your attention to the ’ederal laws bearing upon the subect, so thatyvu may fully investigate them, saying, however, that as i matter of convenience, whieh I lave determined after consultation with our district attorney, you should first tak. up ordinary business and then immbdiatwly proceed to investigate all «uch eharges as may be brought to your attention regarding the offenses against these si eeial laws. “Our di tnct attorney here referred to was not Claypool. And again I ask: Does tris language indicate a purpose to resei ve anything for future instructions, or a purpose to enable he jury to ‘fully investigate?’ Next, the judge quoted ~ec. 5,51 L of the statute, this being the section on which the election cans depended, and then proceeded t define the section as follows:

“Some offenses spdren of here, you will see, may be committed bv a non-offieial person, and son e of them by an officer of an election. And now, in referenc to a particular part of the offeues named, I wish to say that consi erable question has been made snee the election through which re have just passed, as to whethei an attempt to bribe constitute! an offense under this law. I instruct you that it does not unde this statute. The latter clause e| the section (5,511) makes anyom who counsels td bribery guilty

“From this thereappears that there had been, bei>re the first instructions wer a delivered, considerable question inade, as to whether an attempt i bribe con? stituted an offense. Phis is correct, as will appear Irther along. Mark, the judge dost not say that considerable questici had been made about whether dvising bribery was an offense It would seem, therefore, tha' if either of these questions oughtohave been

reserved for farther investigation, it should have beentha question whether an attempt to bribe is r, n offense, and I venture the assertion that if this question had been rose ved, the judge would not have instructed that an attempt te bribe was no offense He would not so instruct now. Repeating, some what, what has alreadv been said, the position of his honor is that he omitted the little adverb ‘not’ before the word ‘guilty’ where that word stands at the close of the above quotation, and he did this because he told Claypool he intended to reserve that point tor further investigation and instructions. Claypool knowing this fact, according to the Journal, and taking advantage of the situation, attempted to get an indictment against Dudley in opposition to the views of the judge. Now, if Claypool did that thing, it was very naughty, but 1 plead ‘not guilty,’ notwithstanding the high character of my accusers.

“I t will now instruct you fully upon the word ‘attempt’ as it is used in this clause (last of sec. 5,511) in order that you may understand its fores in relation to the speeifie&tiens made regarding ‘counseling’ to bribe and actual bribery. This section dees make it an offense to in any manner counsel, aid or assist in the bribery of a voter or in committing any other offense, named m the section, but an unsuccessful attempt to bribe a voter does not constitute a y offense under this section. In other words, this statute does not condemn as a crime, no matter how cleaily it may be proven, an attempt to bribe any voter, provided it can be shown that it did not succeed. In order to understand the word ‘attempt’ in its exact force, as contained in the last clause of this section it is necessary to supply the word ‘to’ before ‘attempt’ so that the clause will then read in this use, ‘aids, counsels, procures or advises any such voter, person or officer to do any act hereby made a crime, or omit to do any duty the omission of which is made a crime, or to attempt to do so, he shall be punished by a fine, etc.’ And so read

this clause makes it an offense for any one to advise another to attempt to commit any of the offenses named m the section (5,511). So that, while it is not a crime to make the attempt, it is a crime to advise another to make the attempt. “Now, I submit, is it not perfectly cloai that all of this ‘refinement’ about the use of the word ‘attempt’ in the last clause of sec. 5,511 was for the purpose of showing how the attempt to commit any of the offenses mentioned in sec. 5,5 1 might not be an offense, and at the same time advising an attempt to commit any of those offenses be a enmo; or, in other words to reconcile these two positions? Before the first instructions, as the judge says in those instructions, there had been ‘considerable question’ about whether an attempt to bribe was an offense. There vas also some talk about the incongruity of a statute making it a crime to advise bribery and not m ke it a crime to attempt bribing. For the purpose of making a statement of the position of the judge perfectly clear|on these two propositions, he repeats and illustrates his position thus:

“If A attempts to bribe B that is no offense under this statute; but if A advises B to attempt to bribe C then the one who commands or gives the advice is an affender under this l*w; and I will say that 1 consider there is some wisdom in this provision. “If the judge was intending to reserve tne question whether advising bribery was an offense, why did he so often repeat the declaration that advising was au offense? There was too much declaration of a thing intended to be reserved. Reserve does not usually talk so much. “The burden of the judges’s discourse was to prove that ‘an attempt was not a crime and in such

provision of th<s law be tho’: gjit there was som*> wisdom.’ If at that time the judge had in mind that to advise “an attt nipt’ was no crime, where did the ‘some wisdom’ come in? Did he mean, to say that there was some wisdom in so making the law that ‘an attempt’ should not be a crime? A motive for so making the law might possibly be conceived if. advising *au attempt’ was made a crime. “J udge Woods ays in substance that it was possible only under the law as defined i. his second instruction.’ to indict Dudley. If the judge had adhered t< his first instructions Dudley, would hr»ve been indicted, and if he had never instructed the jury that to attempt to vote without having the legal r ght to vote and to attempt to bribe, were not crimes, there wo’d have been scores more of indictments to quash. His last instructions rendered it practically impossible to indi< t Dudley; as in all such oases it would be under such interpretation of the Faw.— Dudley might have gone into a town meeting, or at some grand reception and publicly advocated and advised bribery without danger on account 04 so advising, and with a baie possibility of danger on other grounds, owing to the fact that it would be practically impossible to trace the resul.s of such advising, however much —that is any particular act of—bribery back 10 the fountain head of villainy—to the ‘instigator.’ The purpose of congiess seemed to he to afford every possible protection to the purity of elections, but if to ‘attempt tojvote illegally’ and ‘to attempt to bribe’ and ‘to advise bribery’ are not crimes, the efficiency of the law to protect elections is destioyed. A person, under such construction of the statute, ♦ an go from place to place attempting to vote illegally, attemptingjjto bribe voters, and ‘ad: vising bribery, all publicly and without danger. Buch a construction is an encouragement to election frauds. Where, in such a law, does ‘some wisdom’ apfear?

“How, as to what Jvdge Wooes says about ‘having *ev «*ral converse’ tions’ with me before his first instructio s: Preceding the election an affl davit was prepared against Dudley, charging the crime of advising brib ery of voters. On the day of the election some charges were mad n for the ‘attempt to bribe.’ Early in the day I heard hat in the opinion of Judge Woods this was no offense.— I went to him and found this rue. At the outset of his conversation with me on this subject, he remarked: ' You are all right against Dudby.’ I responded: Judge, you make me happy. H* is the fellow lam ater ’ but proceeded, saying further: Judge, do you mean that to advise bribery is a rime, and io attempt bribery is not a crime?’ and asked if such condition of the law would not ‘cuiious.* He answered. ‘lt might seem so at first view,’ or in subs’aned this saying farther. ‘But there was some wisdom’ in it, being a phrase like that used in this connection in his firs 1 instruction. He then proceeded to explain the use of the word *aU tempt’ in the last elause of sec. 5,511 in a manner similar to the manner in wnich he did the same thing in his first instruction, to show how *advis ing bribery’ might be and was a’cirme, without the ’attempt to bribe, * being a crime. At that time I had not gone into the analysis of the statute and studied it as closely as the judge seemed to have done, and I remarked te him: ‘You may be right about “attempting to bribe” not being an offense. He thinks I expressed myself more strongly. It is not unlike* ly that 1 did, but whatever impression the judge made upon my mind did not abide with me long, f r the jndge knows that during the course of the investigation of the jury, I, at the request of the jury, called his attontloh to this subject again, more particularly to the specific subject of an attempt to vote illegally, I was so gratified at finding fha. he ag eed with mo on the law applying to Du .> ley’s case, tha I did not car* to continue the debate on the other Doint. This was the first time that the name oi Dudley passed between Pudge

Woods and myself, and the first mention was by him. A few davs later, during the week of the election I heard that the mind of the judge was in doubt on the subject of ‘advising bribery.* 1 sought and nid a conversation with him and found that my informatio » was correct. In this conversation he said: ‘lf 1 advise you to commit murder and you do not do it, am Igu lty?‘ ‘No; but suppose the statute said “whoever advises another shall be punished by fine ar.d itn prisoument ” then what say you judge?* Understanding the judge to assent to the proposition that under such a statuto, advising or ur*ier wu*d be a crime, I then added further‘this !n form is what sec 5.511 does*—quo-* tin from the section to illustrate. But few words j asset! between us -

After a little talk the judge saia he had asked or would ask the o inion cf Senator McDonald. Soon after I heard this had boon done and that Mr McDonald's views accorded with my own. I had no other conversa t on with Judge Woods en the subject of the election eases until after the judge's first instructions, and was not present when tnese instructions were delivered. During the first part of the juryis investigation I was out of this city. The jury came tog-thoi first and were first instructed on the 13th or 14th of November, 18S8.— Having an appointment from tae de partment of justice 1 gave some attention tj matters before the jury, more especially to Dudley's case during the last week of the jury's sitting, preceding their adjournm nt the Saturday evening before Christmas. Late in the evening of this day the jury a ked instructions on this pro position * Whether the jury could indict for advising a person, to ■ Injury unknown, to bribe voters’— When the inquiry was submitted through tho attorneys for the government, the judge respoided. ‘The jury want me to do what it is their business or duty to do; indict Dudley if he is to bo indicts . Their shoulders are broader than mine.’ This may not le the precise words but it is the sal-stan e, and, as 1 recall the lan uage used. I remarked: ‘No, judge, the jury ask a simple legal question.’ The judg declined to answer the question, saying this brought up a question farther back about which he was not satisfied, and being asked what, he responded: Whether simply advising bribery •was an offense.’ Thi was the first intimation, since the first ins ructions were given, that the judges views were not settled, and us expressed in those flrstinstruotions. If at the time of the first instructions r>is mind was not so settled, why so much labor and elaboration to show how the attempt to biibe might not be an offetse, and ‘advising bribery’ be an effens- and why such repeated and emphatic declaration that the first was a crime and the latter not a crime? Again, why was this quee tion said to have been reserved for forth- r investigation and instpjct’ons touching a point in which most public interest centered, suffered to run along nom Nov. 13 to Dec, 25 without further investigation and in

structions, and ail this too in the face of the fact, which must have been known to the judge, that the grand jury and the public press understood the first instructions to bo as inter* preted by me and as only they can be fairly interpreted? In the light of these facts can it be supposed that for six week and mor .• the attorneys of the fiovernment were moving along in darkness as to the law? The fact Is, as lam convinced, the judge did not begin further investigation until after that question came from the jury. I submit that in the light of the foregoing facts, ‘ the question of advising bribery’ had not been reserved lor further investigation as to law. but further investigation was instigated by tnat ‘question of questions’ from the grand jury. “Coming again to the subject of quashing indictments, it is hard to avoid the belief that ‘cautiot’ had something to do with quashing the indictments - the same -caution’ that lodged the judicial mind on the side of offenders a t ainst the election laws on three disputed points, in two er which he was certainly wrong, and in the third scarcely less clearly wrong. That cautin’ which made him decide that te attempt to vote illegally,’ ‘ro attempt to bribe’ and ‘to advise bri bery’were neither crimes; in every instance narrowing the field for the investigation of such political offense . As in the matter of quash! g indiotments, the oor was opened for the escape of numerous offenders. It is said the most of the persons indieted were republicans.' If they had been democrats, and if, as a matter of fact, a ratal formal defect had been discovered in the indictments, is it likely, after the discovery of the fact, the work of quashing indictmcafs and discharging the indicted parties wo’d have gone on te the number of near 150, in some cases allowing offenders who live out of t is state to depart? Is it net more likely that the work of quashing would have stopped and the indicted parties been permitted or required to stand oa thelijrecognizane es until after the grand jury might be call’d back to eorreot the indictments ? This is proper practice and is often done. In state courts it has not been usual, when indictments are quashed for formal defects, to discharge the accused. Am I wrong in this? Criminal prosecutors answer. In Coy s case the grand jury was called back

But it is said that in this case the 1 indictment had not been quashec. The mistake in ihe indictment was j in describing a ‘tally sheet —a mis-; take in a ‘matter of fact.’ In tk e , election cases the mistake, if a mistake, was a mistake in a matter of form. Therefore, the better reason for recalling the grand jury to correct the form'd mi c takes. if ths grand jurv is not recalled in these election eases it will be hard to relieve the parties having the po ver and right to recall the grand fury from an imputation *hat some po litical bias has been and is yet controlling and shaping ‘action’ in the cases. To iay this is no reflection on the integrity cf any one, and is not so intended. Bu* the effect of such bias is known to all. The presidential commissi'n was composed of great and honorable men, yet every one in his decision fell on the side of his party, and now, and all along, with rare exceptions, courts have divided and do divide on questions of law involving politics; each judge according to his politics. And lam sorry to say it, the judge who does tot so decide is d?nounced by his party. “If the district attorney does not ask that the jury be recalled, the court may do so of its own motion. During my short connection with the grand jury it came and went under the direction of the court, without regard to my wishes, except at oim time when the jury wer* permitted io go, on my suggestion, but were immediately ordered back by the cc urt, without any suggestion from me and against my wish. There can be no excuse for not recalling the jury. It cannot be supposed that all those indictments were found by a mixed jury without evidence to support them. There were not democrats sufficient to find any indictment without the votes of some republican members. Let the jut’ be recalled and the indictments corrected, as can be done in a few days, at Jittie expense. Let some good republican lawyer b? appointed to assist in the prosecution, like William P. Fishback, Maj. Calkins, A. Cl. Harris, or others who might be mentioned, for the purpose of giving the sanction of the present administration to the prosecution, as the sanction of Cleveland’s administration was given to the prosecution of the tally sheet c ses; and I promise that the result will reveal to the public vision a shocking amount of crime against the election laws which ought to and which will, under such prosecution, be punished. There is as much call for such action now as there was in the tally sheet cases After making all due allowance for political prejudices, he who will not lend his support to punish such crimes against the election f ranchise is a moral coward, and he who would, directly or indirectly, purposely assist such offenders in escaping punishment deserves only the scorn and indignation of honorable men of all parties ”

“In this connection I submit a few words for the legal profession, and invoke the attention and judgment of lawyers here and everywhere. Is it true that a person who attempts to vote illegally—that is, attempts to vote ‘at a place where he may not lawfully be entitled to a vote, or ‘attempts to vote without having a lawful right to vote’ —ir not guiltv of a crime under sec. 5,511? Judge Woxls answei s no. I say, yes. To prove myself right I invite attention o secs. 2,022, 2,023, 5,514 and incidentally 5,512 Read these sections and see who is right. Let it be borne in mind that these sections are all t?ken from original acts of May 31, 1870, and Jheb. ' 8, 1871. Let it be borne in mind that the latter act is, in part, amendatory of and m part supplemental ’ to the first act, and that they must, therefore, be constru *d together. In this connection it will add force io see how the original phraseology stood in the original sections, before changed for the purpose of codification. Hoc. 2,022 commands the marshal and his deputies at the polls, among other things, to ‘prevent fraudulent voting,’ and to arrest any person who . ommits or attempts or offers to commit any of the acts or offeuses prohibited herein’ (in the original ‘prohibited bv this act or the act hereby amended,’which act contains 5,511) or who ‘commits any offense against the laws of the Unit d States,’ if the offense is committed thejpresence of the marshal or his deputies. Sec. 2,023 commands that when an arrest is made the person arrested shall be carried before a U. 8. commissioner or judge or eourt ‘far examination of the offense alleged against’ the person arrested. Can there be any doubt that under the provisions of this law a marshal and his deputies are commanded to arrest anyone whom they might see attempting to vote illegally, or attempting to bribe oters, and also commanded to carry the person so arrested before a court or officer to be dealt with on a charge of an ‘offense alleged against’ him?Q If Judge

Woods ia right in hi« construction, no charg\ could be made for an attempt tmyote illegally, cr for an attempt to bribe, notwithstanding illegal voting and bribery are both cranes denounced by sec. 5,511, and command is to arrest fcr any ‘attempt’ or offer to commit these or any other offenses denounced by the statute. Sec. 5,514 declares what ‘shall be sufficient prima-facia evidence to convict any person charged with offering to vote unlawfully. But, according to the ruling of Judge Woods, no s ich charge cm be made. Is he right in this ruling? Is it not perfectly clear that an attempt to vote, illegally, at an election for a representative in congress is a crime under sec. 5,511? ould the judge again instruct that it was not? If it be admitted that such attempt to vote is a crime, as it must be admitted, then ‘an attepmt to bribe’ must also be a crime. Both depend upon the same language in the same section, and for like reason advising bribery’ is a crime.” “To knowingly attempt to vote illegally,’ ‘to attempt to bnbo voters’ and ‘to advise bribery of voters’ are all morally wrcner. Each ought to have bem made a crime if it has not been done. In his first instructions to the fraud jury Judge Woods decided that the first two acts were made crimes, bu the third was not made a crime. This, as he says he reserved for further investigation, and in his second instructions he decided, after further investigation, that the third also was r o crime; If caution had moved in -another line it would have been better. If he had reserved the first two •propositions for further investigation it woald have been better. It wonld have been better if his caution had been led by a desire to bring moral -offenders to punishment, to see to it that no guilty man should escape. Better to have been thus cautious than to have been so cautious lest lomo person or persons guilty of groat moral wrong might possibly be indicted toehnioally ineorrect. There is no wrong in caution in such matters. But caution in two direeticus would have been well. In three controverted questions of law the judge fol’ on the side of wrong-doers in each case. Caution! Caution!!— Caution!ll And by departing from the law as laid down by himself in the oase of the United States vs Nr Bosley, and following the decision* of cour s whose decisions were not - ■ trolling authority to govern hi? ■■| duct, he has quashed more <. hundred fndietmniits. Those i diet ' meats wore irood according t<> h 1 • 1 long in use in the U. e- district *

for Indiana. The form in substance charged th it ’at an election for a representative in congress’ the person aeoured vot*‘d ill rallj **tc. Such form is supposed to ba uefeetive be cause it did not in terms expressly charge that the vote east wa for a representative in coßgr-sb, to negt five the inference, ae I suppose, that a veter, at anj'electiojnfor represent alive in congres ’ might buve vot'M for n ronstable, road supervisor or some other officer