maTED STATES tl. REYNOLDS.
215
UNITED STATll:8 'l1. (DiBtrl.ct· Court. D. South CaroUna. November 17, 1891.)
1.
PENSIONS-!t.I.,E&AL FEES-INDICTMENT. . .
t.
U nqer Rev. St. U. S. § 5485, proviiling that any agent· or attorney" or other person. instrumental in prosecutlllg any claim for pension," who charges or receives for his serviues more than the fees allowed by law, shall be guilty of a high meanor, an indictment charging simplY that defendant was instrumental in prosectiting a· cetltain .pension claim is su1Uoient, to bring him within the act, without specifying in what way or capacity be was instrumental.
.
BAME.
1D
I.
claim :and retained a 'i,t'eat:er compensation "than is the title pertaining to pensions .. . .. to-wit, the sum of $53. " Held that, as this8umwas greater than allow;d in ·any case by the pellslon laws, it was unneee88!Lryto or not the arrears were procured after the allowance original .... The only testimony as to the retention of the moaey being that oUhe person enti.tIed .t,ll.ereto, thl't. did not pay it to her, and. that of be dui, tbe 'verdict of the JUry -cannot be disturbed. .. . .
An indtctmentcharged that defendant'was instrumental in prosecuting a
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S,{ME-CONFLIOTI'liG EVIDENOE.
At Law. Indictment-of ThomasJ.,Reynolds{or receiving excesSive feesforprocuringa·pension. On motions in arrest of judgment and for a'new triaL Ovel'xuled. Abial Lathrcp, U. S. Atty. Lee, for defendant. Sndl'NTON, J. The defendant was indIcted for the violation ofsection 5485 Of the Revised Stl1tutes of the United Statell; and convicted; :'l'he 'section under which he was indicted is in these words: . "sec. 5485. Any agent or attorney Or "any other person, instrumental 'in proseeuting any claim for pension or bounty land, who shall directly or Indirectly·ccmtract for, or receive or retain, any greater inst.ruIQent!'lity in proseclltinga cillim for pension or bol1nty is provided m the tItle pertaining to pensions, or who shall wrongfullY-Withhold froID il. peqsiqner or claimant the whule or any part olthe pension"or c!aiIQ allowed and due such pensioner or claimant, or the land,;warrant· fssuedto any such· claimant. shall be deemed guilty of a high tnisdemeanor.,and, upon conviction thereof,shall, for every such 011'en8e,OO fined not exceeding five hundred dollars.,. 01' hnprisonmentllt hard labor not exceeding two years, or both, at the discretion "of the
'. The indictment oontained three counts. The first two charge, in effect, that, being instrumental in the prosecution of a claim for pension for one Sina Green, the widow of a soldier in the war of 1861, the defendant did then arid there unlawfully contract for, demand, receive, and retain from said"Sina Green, to whom a pension was granted under the act of congreFls4th July, 1862, and an act of congress 7th June, 1888, a greater sum' than is provided in the ti tlepertainingto pensions. The first count chatged that his saId· compensation' fixed. by him was greater than the eum'of $25. The second, count, that it was greater than $10. The thiro coul'lt.charges that he was instrumental in prosecuting a claim fOl'arrears of pension forSina Green, widow, Ofasoldiert,etc.,and "did then, ,and
216
FEDERAL REPORTER, vol. 48.
there unlawfully contract for, demand, receive, and retain from the said Sina Green, to whom a pension for arrears of pension was granted under an act of congress II 7th June, 1888, "a greater compensation for his services and instrumentality in prosecuting the said claim of the said Sina, as the widow, etc., than is provided in the title pertaining to pensay, a compensation, to-wit, the sum of fifty-three dolsions; lars, for his services and instrumentality in prosecuting said claim, contrlj,ry,» etc. . . '. . .' '" ,The motion in arrest of judgment is based on two grounds: (1) Because they state that defendant was instrilmental In getting the cla.im, butdo not state in what capacity or in what way he was instrumentat wasII!f:l.de in U. S. v. Koch, 21. Fed. Rep. 873, before 'BREwE;R" i., and overruled. ' I concur in t,his cO!;lclusion. (2) ·Because the! coutitsuare fatally defective in that the)' ate drawn: ",ithout the use of the exact and material words of the special section anhe statutes un· d,er,uwhi¢llcthe charge is made. The language of these counts is that of 'sectitin"5485. No rule is'more familiar tQallthat an indictment for a statutory offense may, in charging the offense, merely use the language oLth,e,stat!1te, v.1 Milh,7 Pet.1ll8; U. 107 U. S. Ct. Rep. ,5.12. In U. B..v.lf;il.son" F,ed. Rep. 286, a similar objection was made to an indictment, on grounds somewhat stronger than in this case, and it was overruled. the indichnent,in that (3) Another objection is to the third it does not charge that the arrears of pension therein mentioned was.obtained l1Jld,'dloW'ed SUbsequent to the allowance of the original pensipn. lfthis :OQJjnt, charged as an offense that tbe defendant made a charge for obtaining the arrears of ,pension, this objection would. hold, because no .charge in, JPany instances can be made simply for obtaining arrears of pension. But this is not the charge. The grava'1TlRJll, is that he retained and received a greater compensation than that provided in the title pertaining to pensions, a compensation,to-wit, of $53. This brings up these Was he instrUmental in getting for Sina Greeh the arrears retain as of pension under the act orcoqgress stated? Did he. compensation therefor the sum of $53? If so, he has VIolated the section, whether the lawful compensation be 825, or $lO,ornotbing. The motion in ari'est bfjudgment is refused. The motion for new trial goes to all the counts and the evidence upon them. There is no evidence that defendant was ever instrumental in getting a pension for Sina Green under the act of 1881, as charged in the first two counteof the indictment. The verdict, if it be sU'stainE:d. must be on the third ,count. There can be no doubt that section 5485 deals two offenses, in a person employed as agent or attorney, or who is instrumenta.l ih obtaining a pension. One is the obtaining ,compensationgreaterthan that allowed by law ,either by contracting for it, de'manding it" receiving it, or retaining it. 'U. S. v. Brown; 40 Fed. Rep. 458. Whe.other is withholdillg it under 1lIlY' other pretense or without pretense. '. The count charged that the money was claimed or retained as compensation. Unlesstbere was evidence to sustain that, there must be
UNITED STATES 11. REYNOI.;IlS.
217
a new trial; not that this evidence should seem conclusive to the presiding judge, nor even that the preponderance of evidence in his opinion should support the verdict; but was there enough evidence, if the jury believed it, to sustain the verdict? The testimony disclosed these facts: Sina Green was granted arrears of pension,-somuch as widow of a dier, and so much as the mother of a soldier's child. Sheconsulted with the defendant, and he was instrumental in getting the arrears for her. The letter inclosing her check came to his care, and hegotitJrom the post-office. Sending for her, he opened the letter in her presence, and took out the check. She indorsed it in his presence. Somehow she was under the impression that her child was entitled to a part ofthe money. There is no evidence whatever that she got this impression from defendant. She asked the defendant to ascertain "what was Fldra's share,".and finally she instructed him to have the check cashed, and to deposit the rest for her in bank, with the exception of a sum she wanted in hand. The check was for some $612. '1'he defendant took out$190, and deposited the remainder, less the discount on the check. With this $190 we have to deal. Out of it he gave Sina's husband, as directed, $50. He charged $10 for services and $10 more for money advanced for expenses, and says that he gave Flora, the daughter of Silla,,$1201 Here arises a conflict of testimony. Flora says that he gave her hut $87 . The jury were carefully instructed at this point. They were told that the case turned on the disposition of the $120. If he paid' it to Flora, as .he:said, this ended the matter, andtthey must acquit. If, however, they believed that he did not pay lier more than. $&7, ,yet, if he bona fide allotted .to' h,er in his discretion, the $120 as her shl}re, and had withheld it 'from her as a loan,or w,itbout any intention, of to repaying her, they could not convict him i,n this, indictment; do this they must believe that he retained the money as an indirect way of obtaining. larger 'compensation. If it was· thus retained· by way -of compensation, he was guilty. The verdict of the jury solved the can:. flictinthe evidence., and was responsive to this last question. ,The evidence-of Flora contr.dieted:that of the This was the only evidence on this crucial point. The motion is refused.
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218
J'JllDERAL :RlllJ'OJ1TER,
vol. 48.
UNITED STATES". NEWTON
et at
(D1.IttrUlt Court, S. Do .IoWa, C. D. November 17, 1891.) Rev. StoU, S.'5 5440, provides 'tnat,OLittwo or more persons conspire, either to commit any oifeuBe against the or to defraud the U'uited States in any manneror'for anY' purpose, and one or more of such parties do any act to effect the objectef the conspiraoy, all the such conspiracy shall be liable, "etc. Rev. St. 0'.8. § 4002. proV1des companies shall be paie} for carrying the mails upon a basiB of the carried; such to be ascertained by actually weighing the mail carried during a certain number of days, to be fixed by the general. Belii, an Indictment charging railway officials with cOllspiring to deceive the officers alld defraud the,United States by the line a large amount of old newspapers, eto., in order to increase tbe mails at a tim,e when tbey were be;lug weighed, is suffioient, ,under section 5440, since it a to the "o!!ense'agllinst the United States." c' which is defined by Rev. St. U. S: 5 54.68prdviding a punishment 101' any persons ,combining, to defraud the United ,States by "obtaining, or aidillg to obtain, the payment 01 any'false 'or fraudulellt claim." "S,U-IB. , It was not neoElssary that the indictment should aver that the conteinplated fraud was suocessful, or the fraudulent mall matter of sufficient weight to elltitle the railway company to Increased oOoipensatioll, or that the forwarding of the matter would not be continued beyond tbe:period fixed for welghlag tlie'mails. .,BA)!E."
CoNSPJRAOJ:Tri :l>BJrHAUD THE UNITED'STATES-TRAKSPORTING MAtis-INDICTMBNT.
of railway officera for to defraUd the United States. by "deceiving· the' olJiclals" having charge a! the mails as to the amount of mail matter carried over the line, need not aver what partiCUlar officer was intended to be deceived.' ' . ,
An
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;;AtLaw. Indictment for conspiraoy to defraud the United States. On· demurrer to indidment. Overruled. Lewis MileB, Dist. Atty., for the United States. Kauff'1M,n &- G'Iiern8ey, for defendants. , i Before S:amAs and WOOLSON, JJ.
" SRmAS, I.,By seotion 5440 ,of the Revised Statutes it is enacted that-' "It two or more' persons conspire. ,eithj!r to commit any offense the l]nited States. ot tb defraud tbeUnited St.teil in any manner. or for any purpose. and one or more of such parUfls do a,ny act to effect the object of the conspiracy. all the parties to such conspiracy shall be liable," etc.
Section 4002 provides the method by which the compensation to be paid to railway companies for the transportation of mail matter is to be ascertained, the average weight of the matter transported being the controlling factor; and, for the purpose of ascertaining such weight, it is enaoted that the average weight is to be ascertained by the actual weighing of the mails for such anumber of successive working days, not less than 30, and at suoh times as the postmaster general may direct, but not less frequentJy than once in four years. In the indictment now under oonsideration it is charged that John C. Newton was, at the times therein named, the vice-president and general manager of the Des Moines & Kansas City Railway Company, a corporation engaged in operating a line of railway from Des Moines. Iowa. to Cainsville, Mo., and over which line the public mails of the United