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
MR. JUSTICE PECKHAM, after making the foregoing statement of
facts, delivered the opinion of the Court.
Counsel for defendant base their right to obtain a direct review
by this Court of the judgment of conviction in the district court
of Missouri upon the contention that the case involves the
construction and application of the Constitution of the United
States in several particulars. They insist that, under Article III,
section 2, of the Constitution, and also under the Sixth Amendment
of the same, the defendant was entitled to be tried by a jury of
the state or district in which the crime alleged against him in the
indictment was committed. This question arises by reason of those
counts of the indictment which charge the receipt by defendant of
various checks therein set forth, as St. Louis, in the State of
Missouri, while the evidence in the case shows, without
contradiction, that the checks were received in the City of
Washington, D.C., and payment thereof made to defendant by one of
the banks of that city. Counsel contended that, if any crime were
committed by the receipt of these checks and the payment thereof to
the defendant (which is denied), that crime was committed in
Washington, and not in Missouri, and that it did not come within
section 731 of the Revised Statutes of the United States,
providing
Page 196 U. S. 295
that, when an offense against the United States is begun in one
judicial circuit and completed in another, it shall be deemed to
have been committed in either, and may be dealt with, etc., in
either district, in the same manner as if it had been actually and
wholly committed therein. Counsel for defendant also contend that
the case involves the construction and application of section 6 of
Article I of the Constitution of the United States, providing that
senators and representatives shall, in all cases except treason,
felony, and breach of the peace, be privileged from arrest during
their attendance at the sessions of their respective houses, and in
going to and returning from the same. These questions were raised
in the court below. Whether the defendant waived his alleged
privilege of freedom from arrest as senator would probably depend
upon the question whether the offense charged was in substance a
felony, and if so, was that privilege a personal one only, and not
given for the purpose of always securing the representation of a
state in the Senate of the United States. However that may be, the
question is not frivolous, and in such case the statute grants to
this Court 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.
Horner v. United
States, 143 U. S. 570. It
is not the habit of the Court to decide questions of a
constitutional nature unless absolutely necessary to a decision of
the case. Having jurisdiction to decide all questions in the case
on this writ of error, we deny the motion for a certiorari, and
proceed to an examination of the record.
First. The question of the construction of the statute upon
which this indictment was framed is the first to arise. Upon that
question, a majority of the court (MR. JUSTICE HARLAN, MR. JUSTICE
BROWN, MR. JUSTICE McKENNA, MR. JUSTICE HOLMES, and MR. JUSTICE
DAY, concurring) are of opinion that the facts alleged in the
indictment show a case that is covered by the provisions of the
statute, while THE CHIEF JUSTICE, MR. JUSTICE BREWER, MR. JUSTICE
WHITE, and the writer of this opinion
Page 196 U. S. 296
dissent from that view, and are of opinion that the statute does
not cover the case as alleged in the indictment.
Second. Assuming that the statute applies to the facts stated in
the indictment, a further question arises upon the general merits
of the case, whether there was sufficient evidence of guilt to be
submitted to the jury, and a majority of the Court (the same
Justices concurring) are of opinion that there was, or are not
prepared to say there was not, and the same minority dissent from
that view, and are of opinion that there was no evidence whatever
upon which to found a verdict of conviction.
There are, however, other questions remaining, which we now
proceed to discuss on the theory that the statute covers the
case.
Third. The sixth, seventh, eighth, and ninth counts of the
indictment aver the receipt by the defendant of the different
checks described at the City of St. Louis, in the State of
Missouri, and the payment of the money thereon to the defendant at
St. Louis, in that state, as compensation for services theretofore
performed by the defendant for the Rialto Company. It may be
assumed that, on the facts averred in these various counts in the
indictment upon the checks, each of them was good. It turned out,
however, on the trial that these averments of the place where the
different checks were received and paid were not true, but, on the
contrary, the evidence was wholly undisputed that each of them was
received by the defendant in the City of Washington, D.C., and by
him there indorsed and deposited with the Riggs National Bank, of
Washington, D.C., and that they were afterwards duly paid by the
Commonwealth Trust Company at St. Louis, Missouri; that the amount
of each was in each instance immediately credited by the Riggs
National Bank to the account of the defendant with the bank, and
the cashier testified that the defendant had the right, immediately
after the credit was made, to draw out the whole, or any portion
thereof, without waiting for the payment of the check at St.
Louis.
Page 196 U. S. 297
There was no oral or special agreement made between the
defendant and the bank at the time when any one of the checks was
deposited and credit given for the amount thereof. The defendant
had an account with the bank, took each check when it arrived, went
to the bank, indorsed the check, which was payable to his order,
and the bank took the check, placed the amount thereof to the
credit of the defendant's account, and nothing further was said in
regard to the matter. In other words, it was the ordinary case of
the transfer or sale of the check by the defendant, and the
purchase of it by the bank, and upon its delivery to the bank,
under the circumstances stated, the title to the check passed to
the bank, and it became the owner thereof. It was in no sense the
agent of the defendant for the purpose of collecting the amount of
the check from the trust company upon which it was drawn. From the
time of the delivery of the check by the defendant to the bank, it
became the owner of the check; it could have torn it up or thrown
it in the fire or made any other use or disposition of it which it
chose, and no right of defendant would have been infringed. The
testimony of Mr. Brice, the cashier of the Riggs National Bank, as
to the custom of the bank when a check was not paid, of charging it
up against the depositor's account, did not in the least vary the
legal effect of the transaction; it was simply a method pursued by
the bank of exacting payment from the indorser of the check, and
nothing more. There was nothing whatever in the evidence showing
any agreement or understanding as to the effect of the transaction
between the parties -- the defendant and the bank -- making it
other than such as the law would imply from the facts already
stated. The forwarding of the check "for collection," as stated by
Mr. Brice, was not a collection for defendant by the bank as his
agent. It was sent forward to be paid, and the Riggs Bank was its
owner when sent. With reference to the jurisdiction of the court
over the offense described in the sixth and following counts in the
indictment, the court held that, if the checks were actually
received by the defendant in Washington, and
Page 196 U. S. 298
the money paid to him by the bank in that city, and the title
and ownership of the checks passed to the bank at that time, the
court in Missouri had no jurisdiction to try the offenses set forth
in those counts of the indictment already referred to. There was no
question that such was the fact, and it was error to submit the
matter to the jury to find some other fact not supported by any
evidence. The court said:
"The government claims that the compensation referred to in this
count was sent to the accused by the Rialto Grain & Securities
Company, in the form of a check drawn by it on the Commonwealth
Trust Company, payable to the order of the accused, by mail; that
he received the check representing this compensation at Washington,
in the District of Columbia, and then and there indorsed the check,
deposited it to his own credit in the Riggs National Bank at
Washington; that the last-mentioned bank afterwards forwarded the
check by and through its correspondents to St. Louis for payment by
the Commonwealth Trust Company, upon which it was drawn, and that
the Riggs Bank and its correspondents in all this matter became and
were the agents of the accused for securing this money, and when
the money called for by the check was finally paid at St. Louis,
Missouri, by the trust company on which it was drawn, it amounted
to a payment of that money to the accused at St. Louis, Missouri.
This suggests an important feature of the case for the reason that,
unless it be true that the accused received the money represented
by and paid on this check at St. Louis, this Court would have no
jurisdiction to try the case."
"The Constitution of the United States confers upon the accused
in every criminal case the right to be tried by an impartial jury
of a state and district where the crime shall have been
committed."
"The receipt of the money is the gist of the crime charged
against the accused, and if he did not receive it in this district,
in fact in St. Louis, where he is charged to have received it, he
is not amenable to the law in this district, and cannot be
convicted
Page 196 U. S. 299
in this Court on this sixth count. Accordingly, it becomes your
duty to ascertain and find from the evidence what were the true
relations between the accused and the Washington bank when he
deposited the check in question with that bank, and what was the
understanding between them as to their respective rights in
relation to the check and the proceeds thereof. On this question,
the court charges you as follows:"
"If it was the intent and understanding of the Washington bank
and the accused at the time the latter deposited the check in
question with the former, that the bank should forward the same in
the usual course, by and through its correspondents to St. Louis,
for payment, and that in so doing it and its correspondents should
act only as the agent of the accused for that purpose, then the
final payment by the Commonwealth Trust Company at St. Louis, of
the check to the correspondents of the Washington bank, would
amounts in law to a payment in St. Louis, as charged in the sixth
count, of the amount of the check to the accused. If, on the
contrary, it was the understanding and intent of the Washington
bank and the accused at the time the latter deposited the check in
question with the former that the bank should become the purchaser
of the check, and should thereafter be the absolute owner thereof,
and not act as just indicated, as the agent of the accused in the
collection of the check, then the payment at St. Louis by the
Commonwealth Trust Company would amount in law to a payment to the
Washington bank, and not to the accused. In the latter event, no
crime would have been committed by the accused in this district by
reason of the check referred to in the sixth count of the
indictment."
"In order to find the accused guilty on the sixth county, you
must find from the evidence, by the same measure of proof as is
required in all criminal cases, that the check referred to in the
sixth count was deposited by the accused in the Washington bank for
collection, and that the bank was to act in collecting the same, as
the agent of the accused, and not as the owner of the check in
question. "
Page 196 U. S. 300
"In determining this issue, you are at liberty to and should
consider all the evidence adduced; the actual transaction as it
occurred at the Riggs Bank, where the check was deposited, the
check itself, and all its indorsements, the rights and privileges
which were immediately accorded the accused upon making the
deposit, the actual conduct and purpose of the Riggs Bank in
forwarding the check to St. Louis for payment, the customary
conduct and usage of that bank and all banks in Washington at the
time, so far as shown by the proof. And if, from all these facts
and all other facts disclosed by the proof, you find that the check
in question was in fact deposited by the accused, with the intent
and knowledge on his part, as well as on the part of the bank
itself, that it should be forwarded to St. Louis for collection for
account of the accused, the bank and its correspondents acting as
agents for the accused to make such collection, you should find
that, when the same was actually paid to the last indorser on the
check at St. Louis by the trust company upon which it was drawn, it
was, in contemplation of law, paid to the accused himself."
"If, on the contrary, you find from the evidence that the
accused and the Riggs Bank at the time of the deposit of the check
in question, understood and intended that the bank should become
the purchaser of the check, and be its absolute owner, then the
subsequent forwarding of it to St. Louis for payment was the act of
the bank itself, and the final payment of the check by the trust
company at St. Louis was a payment, not to the accused, but to the
bank, and it such is the fact your verdict on the sixth count must
be not guilty."
A careful scrutiny of the evidence with relation to this charge
to the jury shows that there was no foundation for submitting to
the jury the question of what was the understanding (other than
such as arose from the transaction itself, as shown by
uncontradicted evidence) between the defendant and the bank at the
time when these various checks were deposited with the bank, and
their proceeds placed to the credit of the defendant. There was no
agreement or understanding of any kind other
Page 196 U. S. 301
than such as the law makes from the transaction detailed, which
was itself proved by uncontradicted evidence offered by the
government itself. In the absence of any special agreement that the
effect of the transaction shall be otherwise (and none can be
asserted here), there is no doubt that its legal effect is a change
of ownership of the paper, and that the subsequent action of the
bank in taking steps to obtain payment for itself of the paper
which it had purchased can in no sense be said to be the action of
an agent for its principal, but the act of an owner in regard to
its own property. The learned judge, in his charge to the jury, did
not, indeed, deny the general truth of this proposition, but he
left it to the jury to determine whether there was not an agreement
or understanding made or arrived at by the parties at the time the
checks were taken by the defendant to the bank, which altered the
legal effect of the transaction actually proved. This, as we have
said, there was not the slightest evidence of, and it was error to
submit that question to the jury.
The general transaction between the bank and a customer in the
way of deposits to a customer's credit, and drawing against the
account by the customer, constitute the relation of creditor and
debtor. As is said by Mr. Justice Davis, in delivering the opinion
of the Court in
Bank of the Republic v.
Millard, 10 Wall. 152, in speaking of this
relationship, page
77 U. S.
155:
"It is an important part of the business of banking to receive
deposits; but when they are received, unless there are stipulations
to the contrary, they belong to the bank, become part of its
general funds, and can be loaned by it as other moneys. The banker
is accountable for the deposits which he receives as a debtor, and
he agrees to discharge these debts by honoring the checks which the
depositor shall, from time to time, draw on him. The contract
between the parties is purely a legal one, and has nothing of the
nature of a trust in it. This subject was fully discussed by Lords
Cottenham, Brougham, Lyndhurst, and Campbell in the House of Lords
in the case of
Page 196 U. S. 302
Foley v. Hill, 2 Clark & Finnelly 28, and they all
concurred in the opinion that the relation between a banker and
customer, who pays money into the bank or to whose credit money is
placed there, is the ordinary relation of debtor and creditor, and
does not partake of a fiduciary character, and the great weight of
American authorities is to the same effect."
When a check is taken to a bank, and the bank receives it and
places the amount to the credit of a customer, the relation of
creditor and debtor between them subsists, and it is not that of
principal and agent. This principle is held in
Thompson
v. Riggs, 5 Wall. 663, and also in
Marine
Bank v. Fulton Bank, 2 Wall. 252.
See also
Scammon v. Kimball, 92 U. S. 362,
92 U. S. 369;
Davis v. Elmira Savings Bank, 161 U.
S. 275,
161 U. S.
288.
The case of
Cragie v. Hedley, 99 N.Y. 131, contains a
statement of the rule as follows, per Andrews, Chief Judge:
"The general doctrine that, upon a deposit made by a customer,
in a bank, in the ordinary course of business, of money, or of
drafts or checks received and credited as money, the title to the
money, or to the drafts or checks, is immediately vested in, and
becomes the property of, the bank, is not open to question.
Commercial Bank v. Hughes, 17 Wend. 94;
Metropolitan
Nat. Bank v. Loyd, 90 N.Y. 530. The transaction, in legal
effect, is a transfer of the money, or drafts, or checks, as the
case may be, by the customer to the bank, upon an implied contract
on the part of the latter to repay the amount of the deposit upon
the checks of the depositor. The bank acquired title to the money,
drafts, or checks on an implied agreement to pay an equivalent
consideration when called upon by the depositor in the usual course
of business."
In
Metropolitan Nat. Bank v. Loyd, 90 N.Y. 530, one of
the cases referred to by Judge Andrews, Judge Danforth, in speaking
of the effect of placing a check to the credit of a depositor in
his account with the bank, said that:
"The title passed to the bank, and they [the checks] were not
again subject to his control. [
see Scott v. Ocean Bank
in
Page 196 U. S. 303
City of New York, 23 N.Y. 289 and other cases cited in
the opinion]."
"
* * * *"
"It is true no express agreement was made transferring the check
for so much money, but it was delivered to the bank, and accepted
by it, and the bank gave Murray credit for the amount, and he
accepted it. That was enough. The property in the check passed from
Murray, and vested in the bank. He was entitled to draw the money
so credited to him, for, as to it, the relation of debtor and
creditor was formed, and the right of Murray to command payment at
once was of the very nature and essence of the transaction. On the
other hand, the bank, as owner of the check, could confer a perfect
title upon its transferee, and therefore when, by its directions,
the plaintiff received and gave credit for it upon account, it
became its owner, and entitled to the money which it represented. .
. . If, as the appellant insists, the check had been deposited for
a specific purpose -- for collection -- the property would have
remained in the depositor; but there is no evidence upon which such
fact could be established, nor is it consistent with the dealings
between the parties, or with any of the admitted
circumstances."
"These show that it was the intention of both parties to make
the transfer of the check absolute, and not merely to enable the
bank to receive the money upon it as Murray's agent."
The same principle is set forth in
Taft v. Bank, 172
Mass. 363. In that case, the court said:
"So when, without more, a bank receives upon deposit a check
indorsed without restriction, and gives credit for it to the
depositor as cash in a drawing account, the form of the transaction
is consistent with and indicates a sale, in which, as with money so
deposited, the check becomes the absolute property of the
banker."
In the case at bar, the proof was not disputed. The checks were
passed to the credit of defendant unconditionally, and without any
special understanding. The custom of the bank
Page 196 U. S. 304
to forward such checks for collection is a plain custom to
forward for collection for itself. The only liability of defendant
was on his indorsement. All this made a payment at Washington, and
as a result there was a total lack of evidence to sustain the
sixth, seventh, eighth, and ninth counts of the indictment. The
court should have therefore directed a verdict of not guilty on
those counts.
This is not a case of the commencement of a crime in one
district and its completion in another, so that, under the statute,
the court in either district has jurisdiction. Rev.Stat. section
731. There was no beginning of the offense in Missouri. The payment
of the money was in Washington, and there was no commencement of
that offense when the officer of the Rialto Company sent the checks
from St. Louis to defendant. The latter did not thereby begin an
offense in Missouri.
Fourth. The judgment must also be reversed because of the error
in the refusal of the court to charge as requested when the jury
came into court and announced an inability to agree. Previous to
the retirement of the jury, the defendant's counsel submitted to
the court certain requests to charge the jury -- twelve in all.
Those numbered seven, ten, and eleven were refused. Numbers ten and
eleven referred to the checks and the effect of the transaction of
depositing them with the Riggs Bank. The other instructions
referred to many of the questions arising in the case, and material
upon the subject of the trial then before the court. After the
court had concluded his main charge to the jury, he added that he
had been
"asked by counsel for the defendant to give certain declarations
here, and while I think they have, in the main, been covered by the
charge, yet I will give them to you."
(They were the instructions requested by defendant, and above
described.)
"These are abstract propositions of law, which I give in
connection with the charge, as perhaps more fully amplifying it. I
am willing to give them, inasmuch as they are asked, and they
contain general propositions of law."
The jury then retired,
Page 196 U. S. 305
and after being out from Saturday evening at 8 o'clock until the
following Monday morning at 10 o'clock, without agreeing, returned
into court and were charged by the court in relation to their duty
as jurors. In the course of that charge, the court said to the jury
as follows:
"I gather from this letter, Mr. Foreman, what I may be incorrect
about. I would like to ask the foreman of the jury how you are
divided. I do not want to know how many stand for conviction, or
how many for acquittal, but to know the number who stand the one
way and the number who stand another way. I would like the
statement from the foreman."
"The Foreman: Eleven to one."
"The Court: The jury stand eleven to one. I gather that from the
communication. In the light of that fact, I feel constrained to
make a statement to you, and in making it to use the language of
the Supreme Court of the United States as found in
Allen v.
United States."
(
164 U. S. 164 U.S.
492.)
The court then charged the jury in relation to its duty to agree
if possible, and directed that the jury should, in the light of the
comments of the court then made, retire and make a serious attempt
to arrive at a verdict in the case. Counsel for the defendant then
asked the court to indicate to the jury that the requests to charge
theretofore asked by the defendant, and which were given by the
court, constitute as much a part --
"The Court: If you will wait a moment, the jury may retire."
"Mr. Krum: I beg your Honor to state to the jury --"
"The Court: Stop a moment, and then I will hear your argument. I
will, after the jury retire, hear counsel if they have anything to
say, or any exceptions they may wish to take to the charge."
he court here handed the foreman of the jury the charge and
instructions heretofore referred to, and directed the jury to
retire for further consideration of their verdict.
"Mr. Lehman: I do not believe that the requests to charge, in
the manner made by defendant, and given by the court to the jury,
were given as they should have been, the suggestions being made by
the court at the time, that they were mere abstract
Page 196 U. S. 306
statements, which had the effect to deprive them of something of
their force, when they were not intended as mere abstractions, and
were believed by counsel to have specific reference to the case,
and those instructions as well as others ought to be called to the
attention of the jury. We must except here as earnestly as it is in
our power to do, against the charge of the court made now."
"The Court: If you except, I will allow the exception."
"Mr. Krum: What I desire to do in the presence of the jury was
to ask your Honor to indicate to the jury, as it was evident the
jury did not understand, that it was a fact that the requests to
charge which were recognized by the court, acquiesced in by the
court, and given by the court, were just as much a part of your
Honor's charge as that which the court read as emanating from the
court itself."
"The Court: I did tell the jury so on Saturday."
"Mr. Krum: I submit it is apparent that they do not understand
that they are just as much to be controlled by that part of the
instructions as any other part. That is evident from the inquiry
made."
"The Court: The court has endeavored to answer the only request
made by the jury, and that is all I think should be done."
We think the court should have instructed the jury as requested
by counsel for the defendant, and that its refusal to do so was
error. Here was a case of very great doubt in the minds of some of
the jury. It had deliberated for more than thirty-six hours, and
been unable to agree upon a verdict. The requests to charge
originally made by counsel for defendant had at that time been
received as abstract propositions of law, which the court gave in
connection with the charge, saying that he was willing to give them
inasmuch as they were asked, and as they contained general
propositions of law. It does not appear from the bill of exceptions
that defendant's counsel then excepted to those remarks by the
court, but when the jury subsequently returned into court and
announced their
Page 196 U. S. 307
inability to agree, counsel for defendant immediately saw the
extreme importance of having the requests to charge made to the
court regarded by the jury, not as abstract or general propositions
of law, but as requests which affected the case then on trial with
reference to the facts proved in the case, and so, before the jury
again retired, they commenced to propound their requests upon the
subject to the court, but the court, before listening to them,
instructed the jury to retire, and then followed the colloquy above
set forth between court and counsel.
Balanced as the case was in the minds of some of the jurors,
doubts existing as to the defendant's guilt in the mind of at least
one, it was a case where the most extreme care and caution were
necessary in order that the legal rights of the defendant should be
preserved. Considering the attitude of the case as it existed when
the jury returned into court for further instructions, we think the
defendant was entitled, as matter of legal right, to the charge
asked for in regard to the previous requests to charge, which had
been granted by the court under the circumstances stated, and it
was not a matter of discretion whether the jury should or should
not be charged as to the character of those requests. A slight
thing may have turned the balance against the accused under the
circumstances shown by the record, and he ought not to have longer
remained burdened with the characterization of his requests to
charge, made by the court, and when he asked for the assertion by
the court of the materiality and validity of those requests which
had already been made, the court ought to have granted the
request.
We must say in addition that a practice ought not to grow up of
inquiring of a jury, when brought into court because unable to
agree, how the jury is divided -- not meaning by such question how
many stand for conviction or how many stand for acquittal, but
meaning the proportion of the division, not which way the division
may be. Such a practice is not to be commended, because we cannot
see how it may be material
Page 196 U. S. 308
for the court to understand the proportion of division of
opinion among the jury. All that the judge said in regard to the
propriety and duty of the jury to fairly and honestly endeavor to
agree could have been said without asking for the fact as to the
proportion of their division, and we do not think that the proper
administration of the law requires such knowledge or permits such a
question on the part of the presiding judge. Cases may easily be
imagined where a practice of this kind might lead to improper
influences, and for this reason it ought not to obtain.
Our conclusion is that the judgment must be reversed and the
cause remanded to the district court of Missouri, with directions
to grant a new trial.
So ordered.
* 1 U.S.Comp.Stat. 1212.
"SEC. 1782. No senator, representative, or delegate, after his
election, and during his continuance in office, and no head of a
department, or other officer or clerk in the employ of the
government, shall receive or agree to receive, directly or
indirectly, for any services rendered, or to be rendered, to any
person, either by himself or another, in relation to any
proceeding, contract, claim, controversy, charge, accusation,
arrest, or other matter or thing in which the United States is a
party, or directly or indirectly interested, before any department,
court-martial, bureau, officer, or any civil, military, or naval
commission whatever. Every person offending against this section
shall be deemed guilty of a misdemeanor, and shall be imprisoned
not more than two years, and fined not more than ten thousand
dollars, and shall, moreover, by conviction therefor, be rendered
forever thereafter incapable of holding any office of honor, trust,
or profit under the government of the United States."
MR. JUSTICE HARLAN, dissenting:
I dissent from so much of the opinion and judgment as holds that
the offenses charged against the defendant, based on the checks
made at St. Louis, and mentioned in the sixth, seventh, eighth, and
ninth counts, were committed in this district, where the checks
were received by him, and not at St. Louis, where they were paid by
the bank on which they were drawn for his benefit. I am of opinion
that the Riggs National Bank, upon receiving the checks from the
accused, became, in every substantial sense, his agent and
representative to present the checks and receive the proceeds
thereof, in which case the offense of receiving, by means of those
checks, compensation for services rendered in violation of the
statute was committed at St. Louis, not at Washington. In a strict
sense, no title or ownership of the checks passed to the Riggs
National Bank, as in the case of an unconditional sale, consummated
by actual delivery, of tangible, personal property, for the
recovery of the possession of which the owner could, of right,
maintain an action in his own name, for, if the St. Louis bank on
which the checks were drawn had refused to accept or honor them,
no
Page 196 U. S. 309
action on the checks, or at all, could have been maintained
against it by the Riggs National Bank.
Bank of
Republic v. Millard, 10 Wall. 152,
77 U. S. 156;
First National Bank v. Whitman, 94 U. S.
343,
94 U. S. 344;
St. Louis &c. Railway Co. v. Johnston, 133 U.
S. 566,
133 U. S. 574;
Fourth Street Bank v. Yardley, 165 U.
S. 634,
165 U. S. 643.
The checks were made at St. Louis, and sent by mail from that city
to the accused, in discharge of an obligation assumed by his client
at that city, and, as between him and his client, in the absence of
any special agreement on the subject, compensation for services
rendered by him before the Department could only be deemed to have
been really made when the checks were paid by the bank on which
they were directly drawn. It is true that, when the Riggs National
Bank received the checks, and credited the account of the accused
on its books with the amount thereof, there arose, as between that
bank and him, only the relation of debtor and creditor. But when
his account at that bank was so credited, he became liable, by
implied contract -- if the St. Louis bank failed to accept or pay
the check when presented -- to pay back to the bank an amount equal
to the credit he received on the books of the Riggs National Bank.
If the St. Louis bank had refused to accept or pay the checks when
presented, and it the accused had then sued his client on its
original contract with him, the latter could not have resisted
recovery upon the ground that he received compensation by having
his account at the Washington bank credited with the amount of the
checks. Suppose the accused had been indicted in Washington on the
day after the checks were indorsed to the Riggs National Bank, and
the checks were not honored or paid when presented at the St. Louis
bank -- could he, in that case, have been convicted under the
statute by proof that he received such credit at the former bank
for the amount of the checks? Clearly not. Yet he could have been,
if it be true that he was compensated, within the meaning of the
statute, when his account with the Riggs National Bank was credited
with the amount of the checks. As between the accused and his
client, he was not, in any true
Page 196 U. S. 310
sense, compensated for the services alleged to have been
rendered in violation of the statute until, by payment of the
checks by the St. Louis bank, he was relieved of all liability to
the Riggs National Bank, arising from his indorsing the checks to
it. The accused is to be regarded as having received at St. Louis
compensation for his services because the check made in his behalf
was paid there to his representative. The offense was therefore
consummated at that city, and the federal court at St. Louis had
jurisdiction.
Nor, in my opinion, does the record show any error in respect of
instructions that was to the substantial prejudice of the accused,
no error for which the judgment should be reversed.
It seems to me that, in reversing the judgment upon the grounds
stated in the opinion, the Court has sacrificed substance to mere
form. The result, I submit, we illustrates the familiar maxim
qui haeret in litera haeret in courtice.