Burton v. United States
196 U.S. 283 (1905)

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U.S. Supreme Court

Burton v. United States, 196 U.S. 283 (1905)

Burton v. United States

No. 343

Argued November 30, December 1, 1904

Decided January 16, 1905

196 U.S. 283

Syllabus

A Senator of the United States was indicted and tried in the Eastern District of Missouri for a violation of § 1782, Rev.Stat., the indictment averring that he had rendered services for a certain corporation before the Post Office Department in matters in which the United States was interested -- that is, whether a "fraud order" should issue against such corporation -- and that he had received payment at St. Louis therefor. The defendant denied that the United States was interested in the matters referred to in the indictment within the meaning of § 1782, Rev.Stat., or that he had rendered any service in violation thereof, and alleged that the services which he had rendered to, and had been paid for by, the corporation, were those of general counsel, and not connected with the "fraud order." It was proved without contradiction that the compensation he received under certain counts was sent to him from St. Louis and received by him in Washington in the form of checks on a St. Louis bank which he deposited in his bank in Washington, receiving credit therefor at once, and which checks were subsequently paid in due course. On the trial, the jurisdiction of the court was denied, the offense, if any there was, having been committed at Washington, and not at St. Louis, and the defendant also asserted his privilege from arrest under § 6, Art. I of the Constitution. The court held that the privilege from arrest was waived, and submitted to the jury whether there was any agreement by which the place of payment of the checks was St. Louis, and not Washington. Held that,

The facts alleged in the indictment showed a case that is covered by the provisions of § 1782, Rev.Stat.

Whether a Senator of the United States has waived his privilege from arrest and whether such privilege is personal only or given for the purpose of always securing a representation of his state in the Senate are not frivolous questions, and, if properly raised in the court below and denied, this Court has jurisdiction to issue the writ of error directly to the district court, and then to decide the case without being restricted to the constitutional question.

It is not the habit of this Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.

The deposit of checks in a bank and drawing against them by a customer constitutes the relation of debtor and creditor, and the bank becomes the

Page 196 U. S. 284

absolute owner of the checks so deposited, and not the agent of the customer to collect them; this relation is not, in the absence of any special agreement, affected by the right of the bank against the customer, and his liability therefor in case the checks are not paid.

The payment of the checks to defendant in this manner was a payment at Washington, and if any crime was committed, it was not at St. Louis, and, in view of the evidence, it was error to submit to the jury any question as to where the payment was made, and those counts in the indictment which were based on allegations of payments in St. Louis should have been dismissed, as the court had no jurisdiction thereover.

This is not the case of the commencement of a crime in one district and its completion in another so that the court in either district would have jurisdiction under § 731, Rev.Stat.

Certain of defendant's requests to charge which were allowed were referred to as mere abstract propositions of law and not otherwise specifically charged; after having been out thirty-eight hours, the jurors returned and were instructed by the court in relation to their duty as jurors, and the foreman having stated in answer to questions of the court that they stood eleven to one, the court charged that it was their duty to agree if possible. Counsel then asked the court to instruct that defendant's requests to charge which had been allowed were as much a part of the charge as that which emanated from the court. This was refused. Held error, and, under the circumstances of this case, it was a matter of right, and not of discretion, that the jury should be charged as to the character of the requests.

When a jury is brought before the court because unable to agree, it is not material for the court, in order to instruct it as to its duty and the propriety of agreeing to understand the proportion of division of opinion, and the proper administration of the law does not require or permit such a question on the part of the presiding judge.

The plaintiff in error having been convicted in the District Court of the United States for the Eastern District of Missouri of a violation of the Revised Statutes of the United States, sec. 1782, and set forth in the margin, * has brought the case here directly from that court by writ of error.

Page 196 U. S. 285

The defendant was a member of the Senate of the United States, representing the State of Kansas. The indictment under which he was tried contained nine counts. The first count, after averring that the defendant was a senator from the State of Kansas, averred that, on the twenty-sixth day of March, 1903, he received at St. Louis, Missouri, from the Rialto Grain & Securities Company, $500 in money as compensation for his services theretofore on November 22, 1902, and on divers other days between that day and the twenty-sixth day of March, 1903, rendered for the company before the Post Office Department of the United States, in a certain matter then and there pending before that Department, in which the United States was directly interested, that is to say whether the company had violated the provisions of section 5480 of the Revised Statutes of the United States in that the company had, through its officers, devised a scheme and artifice to defraud, which was to be effected through correspondence by means of the post office establishment of the United States, and whether the correspondence of the company at St. Louis, Missouri, should not be returned with the word "fraudulent" plainly written or stamped upon the outside, as authorized by law. It is also averred that the services rendered by defendant to the company consisted in part of visits to the Postmaster General, the chief inspector, and other officers of the Post Office Department, and of statements made to the Postmaster General, the chief inspector, and other officers, which visits and statements made by the defendant were made with a view and for the purpose of inducing the Postmaster General, the chief inspector, and other officers to decide the question then pending before

Page 196 U. S. 286

the Post-office Department in a way favorable to the Rialto Company. The second count of the indictment was the same as the first, except that it averred the United States was "indirectly," instead of "directly," interested in the question as to whether or not a "fraud" order should be issued. Upon the third count, the jury rendered a verdict of not guilty. Upon the fourth and fifth counts, the government entered a nolle prosequi. The third, fourth, and fifth counts concededly charged but one offense, which was the same as that charged in the first and second counts, and all of these counts were based upon the payment of $500 in cash to defendant at St. Louis, on the twenty-sixth of March, 1903. The sixth count averred the receipt by defendant at the City of St. Louis, in the State of Missouri, of a check for the payment of $500, which was received by the defendant on the twenty-second of November, 1902, the check being drawn upon the Commonwealth Trust Company, of St. Louis, payable to the order of the defendant, and by him duly indorsed, and such check was paid by the trust company to defendant at St. Louis, as compensation for his services to the company between the twenty-second of November, 1902, and the twenty-sixth of March, 1903, before the Post Office Department, in a matter in which the United States was directly interested. The count then contained the same averments of the character of the question pending before the Post Office Department as are set forth in the first count. The seventh count is the same as the sixth, except that it averred the making of a check and the payment thereof to the defendant on the fifteenth day of December, 1902 at the City of St. Louis, in the State of Missouri, for the sum of $500; all other averments being the same as the sixth count. The eighth count averred the giving of a check for the sum of $500 on the twenty-second day of January, 1903 at the City of St. Louis, in the State of Missouri, in payment of services of the same nature as stated in the sixth and seventh counts. The ninth count is the same as the sixth, seventh, and eighth, except that it averred the receipt of a check by the defendant, dated the sixteenth day of February, 1903 at the City of St. Louis, in the State of Missouri, for the same

Page 196 U. S. 287

class of services and upon the same matter them pending before the Post Office Department. The defendant demurred to the indictment on the ground that it stated no crime, and that it showed that the United States had no interest, direct or indirect, in the matter before the Post Office Department, inasmuch as the interest of the United States, under the statute, must be either a pecuniary or property interest, which may be favorably or unfavorably affected by action sought or taken in the given matter pending before the Department. The demurrer was overruled, and the defendant then pleaded not guilty.

Page 196 U. S. 294

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