The omission of the formal endorsement of an indictment as "a
true bill," signed by the foreman of the grand jury, is not
necessarily and under all circumstances fatal, although it is
advisable that the indictment should be endorsed.
Such a defect is waived if the objection be not made in the
first instance and before trial.
Pleading to an indictment admits its genuineness as a
record.
The provision in the Act of June 27, 1890, c. 634, 26 Stat. 182,
forbidding an agent, attorney, or other person engaged in
preparing, presenting, or prosecuting a claim for a pension under
that act from demanding or receiving a greater fee than ten dollars
for his services is constitutional.
An indictment for violating that provision which describes the
defendant as a "lawyer" is sufficient.
The offense against that act is committed when a sum greater
than ten dollars has been taken, without regard to the fact whether
the pension money has or has not been received.
When the amount of the excess so taken is unknown to the grand
jury, it is proper to allege that fact in the indictment.
Page 157 U. S. 161
It is unnecessary to aver a demand for the return of the money
wrongfully taken.
The omission to charge that the offense was "contrary to the
form of the statutes in such case made and provided and against the
peace and dignity of the United States" is immaterial.
On June 27, 1890, Congress passed an act, 26 Stat. 182, c. 634,
the fourth section of which is as follows:
"That no agent, attorney, or other person engaged in preparing,
presenting, or prosecuting any claim under the provisions of this
act shall directly or indirectly contract for, demand, receive, or
retain for such services in preparing, presenting, or prosecuting
such claim a sum greater than ten dollars, which sum shall be
payable only upon the order of the Commissioner of Pensions, by the
pension agent making payment of the pension allowed, and any person
who shall violate any of the provisions of this section, or who
shall wrongfully withhold from a pensioner or claimant the whole or
any part of a pension or claim allowed or due such pensioner or
claimant under this act, shall be deemed guilty of a misdemeanor,
and upon conviction thereof shall, for each and every such offense,
be fined not exceeding five hundred dollars, or be imprisoned at
hard labor not exceeding two years, or both, in the discretion of
the court."
Under this statute, an indictment was returned to the Circuit
Court of the United States for the Eastern District of Louisiana,
the first count of which is as follows:
"The grand jurors of the United States of America, duly
impaneled and sworn, in and for the Eastern District of Louisiana,
in the said circuit court, on their oath present that Henry N.
Frisbie, late of the Eastern District of Louisiana, lawyer, on the
third day of January, A.D. eighteen hundred and ninety-four at the
City of New Orleans, in the Eastern District of Louisiana, and
within the jurisdiction of this Court, then and there being a
person engaged in preparing, presenting, and prosecuting a claim
for pension upon the said United States _____ entitled 'An act
granting pensions to soldiers and sailors who are incapacitated for
the performance of manual labor, and providing for pensions to
widows, minor
Page 157 U. S. 162
children, and dependent parents,' approved June 27, 1890,
to-wit, a claim made by and on behalf of one Julia Johnson, under
the said act of Congress, as the widow of Lewis Johnson, deceased,
late a soldier in the military service of the United States during
the war of the Rebellion, to-wit, a private in Co. C, 87 Reg., Co.
B, 84 U.S.C. Vol. Inf., feloniously and wrongfully did violate the
provisions of the fourth section of the said act of Congress in
that he did then and there feloniously and wrongfully demand,
receive, and retain of and from the said claimant, Julia Johnson,
for his said services in preparing, presenting, and prosecuting her
said claim for pension aforesaid, a sum of money greater than ten
dollars, the exact amount thereof being to the jurors aforesaid
unknown."
To this indictment the defendant demurred
"on the ground that the law under which said indictment was
found is unconstitutional and void, for the reason that Congress
has no power to regulate the price of labor, nor impair the
obligation of contracts. 2. that only the pensioner can make
complaint. No case can be maintained unless affidavit is made by
pensioner. 3. Charge is not sustained by the claim set out."
The demurrer having been overruled, he entered a plea of not
guilty. A trial was had which resulted in a verdict of guilty. A
motion for a new trial having been overruled, the defendant was
sentenced to imprisonment for three months. To reverse such
judgment he sued out this writ of error.
MR. JUSTICE BREWER, after stating the facts as above, delivered
the opinion of the Court.
Neither the testimony nor the instructions are preserved in the
record, and the only questions presented for our consideration
arise on the indictment.
Page 157 U. S. 163
It is objected in the first place that the indictment lacks the
endorsement, "a true bill," as well as the signature of the foreman
of the grand jury. No objection was made on this ground in the
circuit court either before or after the trial. There is in the
federal statutes no mandatory provision requiring such endorsement
or authentication, and the matter must therefore be determined on
general principles. It may be conceded that in the mother country,
formerly at least, such endorsement and authentication were
essential. "The endorsement is parcel of the indictment, and the
perfection of it."
King v. Ford, Yelv. 99. But this grew
out of the practice which there obtained. The bills of indictment
or formal accusations of crime were prepared and presented to the
grand jury, who, after investigation, either approved or
disapproved of the accusation, and indicated their action by the
endorsement, "A true bill," or "ignoramus," or sometimes, in lieu
of the latter, "not found," and all the bills thus acted upon were
returned by the grand jury to the court. In this way the
endorsement became the evidence, if not the only evidence, to the
court of their action. But in this country, the common practice is
for the grand jury to investigate any alleged crime, no matter how
or by whom suggested to them, and after determining that the
evidence is sufficient to justify putting the party suspected on
trial, to direct the preparation of the formal charge or
indictment. Thus they return into court only those accusations
which they have approved, and the fact that they thus return them
into court is evidence of such approval, and the formal endorsement
loses its essential character. This matter is fully discussed by
Beasley, C.J., in
State v. Magrath, 44 N.J.Law 227, 228;
by Moncure, President of the Court of Appeals, in
Price v.
Commonwealth, 21 Gratt. 846, 856, and by Merrick, J., in
Commonwealth v. Smyth, 11 Cush. 473, 474, the latter
saying:
"This omission in an indictment is simply the omission of a
form, which, if oftentimes found convenient and useful, is in
reality immaterial and unimportant."
In each of these cases it was held by the court that the lack of
the endorsement was not necessarily and under all circumstances
fatal to the indictment. In
Page 157 U. S. 164
1 Bish.Crim.Proc. sec. 700, it is said:
"In the absence of a mandatory statute, it is the better view
that both the words 'a true bill' and the signature of the foreman
may be dispensed with if the fact of the jury's finding appears in
any other form in the record."
See also State v. Creighton, 1 Nott & McC. 256;
State v. Cox, 6 Ired. (Law) 440. In
Gardner v.
People, 3 Scammon 83, the court held that the signature of the
foreman, though a statutory requirement, would be presumed if the
indictment was recorded.
Nevertheless, as it is not an unvarying rule for the grand jury
to return into court only the indictments which they have found, it
is advisable at least that the indictment be endorsed according to
the ancient practice, for such endorsement is a short, convenient,
and certain method of informing the court of their action.
The defect, however, is waived if objection is not made in the
first instance and before trial, for it does not go to the
substance of the charge, but only to the form in which it is
presented. There is a general unanimity of the authorities to this
effect. In
State v. Agnew, 52 Ark. 275, it was held that a
statute requiring an endorsement of "a true bill," signed by the
foreman, was directory, and the defect of a lack of such
endorsement was waived unless made before pleading. In
McGuffie
v. State, 17 Ga. 497, while holding that the usual practice of
endorsement was advisable, the court said that the objection on
account thereof was "an exception which goes rather to the form
than to the merits of the proceeding," and too late after trial.
See also State v. Mertens, 14 Mo. 94;
State v.
Murphy, 47 Mo. 274;
State v. Shippey, 10 Minn. 223;
People v. Johnston, 48 Cal. 549, and
Wau-kon-chaw-neek-law v. United States, Morris (Iowa)
332.
In this connection reference may be made to section 1025,
Rev.Stat., which reads:
"No indictment found and presented by a grand jury in any
district or circuit or other court of the United States shall be
deemed insufficient, nor shall the trial, judgment, or other
proceeding thereon be affected by reason of any defect or
imperfection
Page 157 U. S. 165
in matter of form only which shall not tend to the prejudice of
the defendant."
The endorsement was no part of the charge against the defendant.
If no indictment had in fact been found by the grand jury -- in
other words, if there was no legal accusation against him -- the
defendant should have objected on this ground when the court called
upon him to plead to this, which it assumed to have been properly
presented to it. "The very fact of pleading to it admits its
genuineness as a record."
State v. Clarkson, 3 Ala. 378,
383. Instead of denying the existence of any legal accusation, the
defendant demurred to it on the ground of insufficiency, thus
abandoning all question of form and challenging only the substance.
When the demurrer was overruled, he entered a plea of not guilty,
and, that being determined against him by the verdict of the jury,
he interposed a motion for a new trial, and one in arrest of
judgment, without ever suggesting to the court that there was
before it no indictment returned by the grand jury of the district.
The objection, now for the first time made, comes too late.
Whatever action the circuit court might have been compelled to take
if the matter had been called to its attention in the first
instance, the defect is not one which goes to the substance of the
accusation, and will not now avail.
A second objection, insisted upon now as it was by demurrer to
the indictment, is that the act under which the indictment was
found is unconstitutional because interfering with the price of
labor and the freedom of contract. This objection also is
untenable. While it may be conceded that, generally speaking, among
the inalienable rights of the citizen is that of the liberty of
contract, yet such liberty is not absolute and universal. It is
within the undoubted power of government to restrain some
individuals from all contracts, as well as all individuals from
some contracts. It may deny to all the right to contract for the
purchase or sale of lottery tickets, to the minor the right to
assume any obligations, except for the necessaries of existence, to
the common carrier the power to make any contract releasing himself
from negligence, and indeed may restrain all engaged in any
employment from any
Page 157 U. S. 166
contract in the course of that employment which is against
public policy. The possession of this power by government in no
manner conflicts with the proposition that, generally speaking,
every citizen has a right freely to contract for the price of his
labor, services, or property.
The pension granted by the government is a matter of bounty.
"No pensioner has a vested legal right to his pension. Pensions
are the bounties of the government, which Congress has the right to
give, withhold, distribute, or recall at its discretion.
Walton
v. Cotton, 19 How. 355."
United States v. Teller, 107 U. S.
64,
107 U. S.
68.
Congress, being at liberty to give or withhold pensions, may
prescribe who shall receive, and determine all the circumstances
and conditions under which any application therefor shall be
prosecuted. No man has a legal right to a pension, and no man has a
legal right to interfere in the matter of obtaining pensions for
himself or others. The whole control of that matter is within the
domain of congressional power.
United States v. Hall,
98 U. S. 343.
Having power to legislate on this whole matter, to prescribe the
conditions under which parties may assist in procuring pensions, it
has the equal power to enforce by penal provisions compliance with
its requirements. There can be no reasonable question of the
constitutionality of this statute.
Again, it is claimed that the indictment is defective in that it
describes the defendant as a lawyer, and not as an agent or
attorney. Of course the use of the word "lawyer" is not
significant; it is a mere
descriptio personae. The
language of the statute is, "no agent, attorney, or other person
engaged in preparing," etc. The indictment charges that
"defendant, then and there being a person engaged in preparing,
presenting, and prosecuting a claim for pension upon the said
United States . . . by and on behalf of one Julia Johnson."
It is immaterial what was his regular profession or avocation.
It is sufficient that, if even temporarily, he engaged in the work
of preparing, presenting, and prosecuting a claim for a pension.
Doing that, he brings himself within the requirements of the
statute, and it is enough to charge that he was so engaged
Page 157 U. S. 167
and that while so engaged he did demand, receive, and retain
more than the sum which by the statute he was permitted to do.
It is further objected that there is no averment that Julia
Johnson, named in the indictment, was a pensioner of the United
States, or that any money of any kind or character was ever paid to
defendant for her, or that any money was ever paid to any person
for her. It is insisted that the purpose of the statute is to
protect pension money only, and that until pension money is
received, the agent or attorney is not within the reach of the
statute. We do not so understand it. The guilt or innocence of the
defendant does not turn on the question whether he is or is not
successful in obtaining the pension which he is applying for, nor
whether he takes the sum in excess of ten dollars out of the
particular pension money received by the applicant. The scope of
the statute and the evident purpose of Congress are to prevent an
applicant for pension from being mulcted any sum above ten dollars
by anyone assisting in the matter. Language expressing such
intention cannot be clearer than that used.
To the objection that the amount of the excess over ten dollars
demanded, received, and retained by the defendant is not stated,
and that any sum, even one cent, would satisfy the averment, it is
sufficient to reply that if the amount of the excess was unknown,
it was proper to allege that fact in the indictment, and, in the
absence of any testimony to the contrary, it will be presumed that
the amount of the excess was in fact unknown to the grand jury.
Coffin v. United States, 156 U. S. 432. The
question of the guilt of the defendant does not depend on the
amount of the excess. The rule
de minimis non curat lex
has no such application in criminal cases. The stealing of one cent
is larceny as truly as the stealing of a thousand dollars. The
amount may vary the degree, but it does not change the character of
the crime.
It is further urged that the indictment nowhere alleges that any
demand was made upon the defendant for the return of the money
wrongfully received and retained by him. No such demand need be
averred. The case of
United States
v.
Page 157 U. S. 168
Irvine, 98 U. S. 450, is
not in point. There the charge was of wrongfully withholding
pension money, and it was in reference to such charge that the
Court said:
"In short, there must be such unreasonable delay, some refusal
to pay on demand, or some such intent to keep the money wrongfully
from the pensioner as would constitute an unlawful withholding in
the meaning of the law. "
The charge of wrongfully withholding implies the possibility, at
least, of a rightful receipt, and the offense consists in failing
to turn over to the proper party that which has been thus received.
But the charge here is of demanding, receiving, and retaining. It
implies that there was wrong in the original exaction, and it is
unnecessary to aver a demand upon the defendant to undo such wrong.
If he wrongfully demanded and received, and still retains the sum
so demanded and received, the offense is complete.
So far as respects the objection that the count does not
conclude that the offense charged was "contrary to the form of the
statutes in such case made and provided, and against the peace and
dignity of the United States," it is sufficient to say that such
allegation, which is one of a mere conclusion of law, is not of the
substance of the charge, and the omission is of a matter of form,
which does not tend to the prejudice of the defendant, and is
therefore within the rule of section 1025, Rev.Stat., to be
disregarded.
These are the only matters of objection to this indictment. No
one of them is tenable, and therefore the judgment is
Affirmed.
