Notes of Recent Cases. before him in his official capacity. In hold ing that Dietrich was not a member of Con gress within the first clause, the court relies on the practical distinction intended by Con gress between a "member of Congress and a "member of Congress . . . after his elec tion as such member." A number of statutes which distinguish between a member of Con gress and a member elect, are referred to. Acceptance is declared to be essential to the induction into public office and acceptance could not occur until the Senate had con vened. The defendant was governor of the State for some time after his election, and it is said that the State Legislature did not and could not remove him from that office by merely electing him as a United States Sen ator. Opinions of the Attorney General are also cited, and the case of Cordiell r. Frizell, i Nev. 130, 132 is said to be much in point. The case against the Congressman Driggs, (just reviewed,) is distinguished, because in that case the prosecution was under section 1782 and not section 1781. The fact that Dietrich received his salary from the time of his election, is said to be of no moment, in view of the statutes which expressly pro vide for the payment of salaries to represen tatives and delegates elect. In conclusion, the court says: "A completed act which is not an offense at the time of its commission, can not become such by any subsequent act of the party charged, or of another, with which it has no connection, and this is true whether the first act was done for a good or bad pur pose." CONSPIRACY. (BRIBERY OF MEMKER OF CONGRESS —AGREEMENT то GIVE AND RECEIVE URIKE.) UNITED STATES CIRCUIT COURT OF THE DISTRICT OF NEBRASKA.
On page 664 of the Federal Reporter, Vol. 126, another indictment against Senator Dietrich is considered. The indictment was brought under Rev. St. Sec. 5440 (U. S. Сотр. St. 1901, p. 3676) providing that if two or more persons conspire to commit an of fense against the United States, etc., and any one do an act to affect the object of the con
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spiracy, all the parties shall be liable for a penalty, etc. The indictment charged that Dietrich and one Fisher, the former being a member of the United States Senate, conspired to com mit an offense against the United States and to violate a law of the United States, to wit: section 1781 of Revised Statute, by Dietrich agreeing to take a bribe for procuring the office of postmaster for Fisher, and Fisher agreeing to give the bribe. This is followed by the specification of an overt act done by Fisher pursuant to the conspiracy. Section 1781 makes it a criminal offense for a member of Congress to agree to receive any money, property, etc., for aiding to pro cure any office from the government, and a like offense in the person offering the bribe. After an elaborate discussion in which the cases of Shannon v. Commonwealth, 14 Pa. 226; Miles v. State, 58 Ala. 390; State г: But ler, 8 Wash. 194, 35 Рас. 1093, 25 L. R. A. 434, 40 Am. St. Rep. 900, are cited, the court holds that section 1781 creates a substantive offense, to the idea of which plurality of agenis is logically necessary, and therefore one which is not punishable as a conspiracy, the gist of which is the acquisition of a sec ond agent to the offense as an added ele ment to its conception. A very interesting discussion follows as to whether several defendants may be charged in the same indictment with different of fenses of the same kind, the word "severally1' being employed and the indictment regarded as a series of separate indictments. A s Dietrich and Fisher are charged in one count, the court's intimation that such a practice would be proper does not save the indictment in this case. CONSTITUTIONALITY OF STATUTE. (Uir.HT TO RAISE ISSUE— PROSECUTION FOR ASSAULT ON OFFICER.) COLORADO SUPREME COURT.
In Keady v. 893, defendant with intent to who attempted weapons.
People, 74 Pacific Reporter was prosecuted for assault murder, made on an officer to search him for concealed
