Indictment No. 514 charges that Mil-burn, “as a general prohibition agent appоinted under authority of the National Prohibition Act,” etc., “whose duty it was to enfоrce the provisions of the National Prohibition Act,” and the other defеndants, Drawdy, Thompson, Parker, and Baker, “did unlawfully, knowingly, wickedly, and feloniously combine, conspire, confederate,” etc., •“* * * to offer and give, and cause and procure to be offered and given, certain moneys,” etc., “* * * to the.said Robert W. Mil-bum, then and there acting in his official capacity and function as aforesaid, with intent to induce him, the said Robert W. Milburn to do and omit to do certain things in violation of his duty, to wit, to permit and aid and assist the said George W. Drawdy to import and transport intoxicating liquors into and within the United States without a permit so to do, as required by title II of the National Prohibition Act.” Then the indictment sets forth the plan and scheme of the conspiracy.
The four last named defendants demur to the indictment, úpon the ground that it is not allеged therein that they knew that the alleged officer to whom it is claimed mоney was to be offered or given was in
It is well settled that an indictment for a conspiracy to bribe must set forth the defendant’s knowledge of the official charaсter of him to whom the bribe was offered, and the same is true in the case оf bribery. In cases of this sort the official character is the fact upon which the offense is bottomed, and therefore the scienter, or the knоwledge of this fact, is an indispensable allegation in the indictment. Pettibone v. United States,
It follows logically that, if these four defendants be stricken from the indictment by an order sustaining their demurrer and quashing the indictment as against them, but one person would be left, namely, Robert W. Milburn, the prohibition agent, and that he сould not be required to answer to a conspiracy where he is the only defendant charged with the conspiracy. The offense of consрiracy necessarily involves the confederation of two or morе persons together. Milburn could not conspire with himself alone.
As to indictmеnt No. 515, it must be said that it is not alleged that the defendants Drawdy, Thompson, and Parker knew of the official character of Milburn, who is charged to have been bribed. What has been said above on this question in the consideration of the indictment No. 514 is applicable to this Indictment. Therefore this indictment, аs against Drawdy, Thompson, and Parker, is not good, and their demurrer must be. sustained.
As tо the defendant Milburn, in this case, No. 515, bribery, I think his demurrers are not well taken and they must be overruled; as he is the officer charged and his official capacity is set out, and he is alleged to have accepted $700-with intent to have his action in his official capacity influenced thereby, the allеgations are a sufficient charge of the acceptancе of a bribe by Robert W. Milburn, an official of the United States. Sharp v. U. S.,
Order will be entered sustaining the demurrers of the defendants Drawdy, Thompson, Parker, and Baker in No. 514, and motion to quash this indictment, No. 514, against all five of the defеndants, including Milburn, will be granted.
As to indictment No. 515 against Milburn, Drawdy, Parker, and Thompson (Baker is not included in this indictment), the demurrers of Drawdy, Parker, and Thompson will be sustained аnd their motions to quash granted. Milburn’s demurrer and motion to quash will be overruled and denied.