One whose intentional conduct violate the prohibitions of a
penal statute is not excused by his purpose to keep within the law
and his belief that he did so. P.
254 U. S.
137.
The offense of engaging without license in the business of
lending money on security at more than 6 percent interest, in the
District of Columbia (Act of February 4, 1913, c. 26, 37 Stat.
657), is committed by a pawnbroker who receives application,
examines pledges, and decides upon loans only at a place just
beyond the District line, but who maintains an establishment in the
District where the pledges are kept and returned, and where
intending borrowers may find a free automobile service to take them
to him in person, or a paid messenger service, not belonging to the
pawnbroker, by which their applications and pledge may be taken to
him and the money and pawn ticket brought back and delivered to
them.
Id.
In a criminal case, when undisputed facts, including the
testimony of the defendant, clearly establish the offense charged,
the judge may say so to the jury, tell them that there is no issue
of fact for their determination, and instruct them that, while they
cannot be constrained to return a verdict of guilty, it is their
duty to do so under their obligation as jurors.
Id.
Held that, if the defendant suffered any wrong from the
manner in which such instructions were given in the present case,
it was purely formal, since there could be no doubt of his guilt on
the facts admitted, and the error, if any, was cured by § 269,
Jud.Code, as amended February 26, 1919. P.
254 U. S.
138.
48 App.D.C. 380 affirmed.
The case is stated in the opinion.
Page 254 U. S. 136
MR. JUSTICE HOLMES delivered the opinion of the Court.
This case comes here upon a writ of certiorari granted to review
a judgment of the Court of Appeals that affirmed a conviction of
the petitioner of doing business as a pawnbroker and charging more
than six percent interest, without a license, which is forbidden by
the Act of Congress of February 4, 1913, c. 26, 37 Stat. 657. 48
App.D.C. 380.
The external facts are not disputed. The defendant had been in
business as a pawnbroker in Washington, but, anticipating the
enactment of the present law, removed his headquarters to a place
in Virginia at the other end of a bridge leading from the city. He
continued to use his former building as a storehouse for his
pledges, but posted notices on his office there that no
applications for loans would be received or examination of pledges
made there. He did, however, maintain a free automobile service
from there to Virginia, and offered to intending borrowers the
choice of calling upon him in person or sending their application
and security by a dime messenger service not belonging to him but
established in his Washington building. If the loan was made, in
the latter case, the money and pawn ticket were brought back and
handed to the borrower in Washington. When a loan was paid off, the
borrower received a redemption certificate, presented it in
Washington, and got back his pledge. The defendant estimated the
number of persons applying to the Washington office for loans or
redemption at fifty to seventy-five a day. His Washington clerk, a
witness in his behalf, put it at from seventy-five to one hundred.
We may take it that there was a fairly steady stream of callers, as
is implied by the automobile service being maintained. It is said
with reference to the charge of the judge, to which we shall
advert, that there was a question
Page 254 U. S. 137
for the jury as to the defendant's intent. But we perceive none.
There is no question that the defendant intentionally maintained
his storehouse and managed his business in the way described. It
may be assumed that he intended not to break the law, but only to
get as near to the line as he could, which he had a right to do,
but if the conduct described crossed the line, the fact that he
desired to keep within it will not help him. It means only that he
misconceived the law.
As to whether the conduct described did contravene the law, it
is urged that a pledgee has a right to keep the pledged property
where he likes and as he likes, provided he returns it in proper
condition when redeemed. But that hardly helps the defendant. To
keep for return, whatever latitude there may be as to place and
mode, is part of the duty of a pledgee, and, in the case of one who
makes a business of lending on pledges, is as much a part of his
business as making the loan. As we read the statute, its
prohibition is not confined to cases where the whole business is
done in Washington. If an essential part of it is done there and a
Washington office is used as a collecting center, it does not
matter that care is taken to complete every legal transaction on
the other side of the Potomac. We cannot suppose that it was
intended to allow benefits so similar to those coming from business
done wholly in the city to be derived from acts done there and yet
go free. We are of opinion that, upon the undisputed evidence, the
defendant was guilty of a breach of the law, and turn at once to
the question which seemed to warrant allowing the case to be
brought to this Court.
The question relates to the charge of the judge. The judge said
to the jury that the only question for them to determine was
whether they believed the concurrent testimony of the witnesses for
the government and the defendant describing the course of business
that we have stated and as to which there was no dispute. Those
facts,
Page 254 U. S. 138
he correctly instructed them, constituted an engaging in
business in the District of Columbia. This was excepted to, and the
jury retired. The next day, they were recalled to court and were
told that there really was no issue of fact for them to decide;
that they were not warranted in capriciously saying that the
witnesses for the government and the defendant were not telling the
truth; that the course of dealing constituted a breach of the law;
that it was their duty to accept this exposition of the law; that,
in a criminal case, the court could not peremptorily instruct them
to find the defendant guilty, but that, if the law permitted, he
would. The court added that a failure to bring in a verdict could
only arise from a flagrant disregard of the evidence, the law, and
their obligation as jurors. On an exception's being taken, the
judge repeated that he could not tell them in so many words to find
the defendant guilty, but that what he said amounted to that, that
the facts proved were in accord with the information, and that the
Court of Appeals had said that that showed a violation of law.
This was not a case of the judge's expressing an opinion upon
the evidence, as he would have had a right to do,
Graham v.
United States, 231 U. S. 474,
231 U. S. 480.
The facts were not in dispute, and what he did was to say so, and
to lay down the law applicable to them. In such a case, obviously
the function of the jury, if they do their duty, is little more
than formal. The judge cannot direct a verdict, it is true, and the
jury has the power to bring in a verdict in the teeth of both law
and facts. But the judge always has the right and duty to tell them
what the law is upon this or that state of facts that may be found,
and he can do the same nonetheless when the facts are agreed. If
the facts are agreed, the judge may state that fact also, and when
there is no dispute, he may say so although there has been no
formal agreement. Perhaps there was a regrettable peremptoriness of
tone,
Page 254 U. S. 139
but the jury were allowed the technical right, if it can be
called so, to decide against the law and the facts, and that is all
there was left for them after the defendant and his witnesses took
the stand. If the defendant suffered any wrong, it was purely
formal, since, as we have said, on the facts admitted, there was no
doubt of his guilt. Act of February 26, 1919, c. 48, 40 Stat. 1181,
amending § 269 of the Judicial Code; Act of March 3, 1911, c. 231,
36 Stat. 1087.
Judgment affirmed.
MR. JUSTICE BRANDEIS, dissenting.
It has long been the established practice of the federal courts
that, even in criminal cases, the presiding judge may comment
freely on the evidence and express his opinion whether facts
alleged have been proved. Since
Sparf v. United States,
156 U. S. 51, it is
settled that, even in criminal cases, it is the duty of the jury to
apply the law given them by the presiding judge to the facts which
they find. But it is still the rule of the federal courts that the
jury in criminal cases renders a general verdict on the law and the
facts, and that the judge is without power to direct a verdict of
guilty although no fact is in dispute.
United States v.
Taylor, 11 F. 470;
Atchison, Topeka & Santa Fe Ry. Co.
v. United States, 172 Fed.194. What the judge is forbidden to
do directly he may not do by indirection.
Peterson v. United
States, 213 F. 920. The judge may enlighten the understanding
of the jury, and thereby influence their judgment, but he may not
use undue influence. He may advise; he may persuade; but he may not
command or coerce. He does coerce when, without convincing the
judgment, he overcomes the will by the weight of his authority.
Compare Hall v. Hall, L.R. 1, P. & D. 481, 482.
Page 254 U. S. 140
The character of the charge in this case is illustrated by the
following paragraph:
"In conclusion, I will say that a failure to bring in a verdict
in this case can arise only from a willful and flagrant disregard
of the evidence and the law as I have given it to you and a
violation of your obligation as jurors. Of course, gentlemen, I
cannot tell you in so many words to find defendant guilty, but what
I say amounts to that."
In my opinion, such a charge is a moral command, and, being
yielded to, substitutes the will of the judge for the conviction of
the jury. The law, which in a criminal case forbids a verdict
directed "in so many words," forbids such a statement as the above.
*
It is said that, if the defendant suffered any wrong, it was
purely formal, and that the error is of such a character as not to
afford, since the Act of February 26, 1919, c. 48, 40 Stat. 1181, a
basis for reversing the judgment of the lower court. Whether a
defendant is found guilty by a jury or is declared to be so by a
judge is not, under the federal Constitution, a mere formality.
Blair v. United States, 241 F. 217, 230. The offense here
in question is punishable by imprisonment. Congress would have been
powerless to provide for imposing the punishment except upon the
verdict of the jury.
Callan v. Wilson, 127 U.
S. 540;
Thompson v. Utah, 170 U.
S. 343. I find nothing in the act to indicate that it
sought to do so.
Because the presiding judge usurped the province of the jury, I
am unable to concur in the judgment of the court.
THE CHIEF JUSTICE and MR. JUSTICE DAY concur in this
dissent.
*
Compare People v. Sheldon, 156 N.Y. 268;
State v.
Bybee, 17 Kan. 462;
Meadows v. State, 182 Ala. 51;
Randolph v. Lampkin, 90 Ky. 551;
McPeak v. Ry.,
128 Mo. 617;
State v. Tulip, 9 Kan.App. 454;
Lively v.
Sexton, 35 Ill.App. 417.
See Starr v. United States,
153 U. S. 614,
153 U. S.
626.