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Opinion of the Court.

sioner or claimant, or the land warrant issued to any such claimant, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall for every such offence be fined not exceeding five hundred dollars, or imprisonment at hard labor not exceeding two years, or both, in the discretion of the court." The refusal of the court to give the charge asked, and the charge by it given, proceeded upon the theory that although pension money was actually paid over to the pensioner and by her deposited in bank, the obtaining thereafter of such money from the pensioner constituted a withholding under the statute just quoted. The word "withholding" has a definite signification, and we think contemplates, as used in the statute under consideration, not the fraudulent obtaining of money from a pensioner, but the withholding of the money before it reaches the hands of the pensioner and passes under his dominion and absolute control. The context of the statute supports this view, for its penalty is imposed for the wrongful withholding of the whole or any part of the pension claim allowed and due such pensioner, and not for a wrongful obtaining of the same. The fact that the offence of withholding is limited to any agent or attorney or other person instrumental in prosecuting any claim for pension demonstrates that Congress intended to legislate merely against the wrongful withholding by certain individuals, who, by reason of their relation to the pensioner and his claim, might lawfully obtain possession of the same from the government, and upon whom rested the duty of paying it over to the pensioner. If withholding had been considered as applicable to the retaining of pension money obtained from the pensioner by false pretences, the limitation as to particular persons would not have been enacted. Indeed, to construe the word "withholding" as relating to money received from a pensioner, not only reads the word "due " out of the statute, but also leads to the inevitable conclusion that Congress, whilst intending to make it an offence to obtain from a pensioner pension money by false pretences, has yet confined the offence to particular individuals, and permitted all others to commit with impunity the crime it was intended to punish. It also follows if the

Opinion of the Court.

statute be construed as embracing money obtained from a pensioner by false pretence, that the act forbids withholding money thus obtained, but does not forbid or punish the act of obtaining the money by a false or fraudulent pretence. These reasons make it clear that the purpose of the statute in punishing a withholding by certain persons standing in a fiduciary relation to the pensioner is consistent only with the theory that Congress was legislating to prevent an embezzlement of pension money, not a larceny thereof from the pensioner or the obtaining of the same from him by false pretences. This construction of the statute is further supported by reference to the act of March 3, 1873, c. 234, 17 Stat. 566, in § 31 (p. 575) of which is contained the original provision making it an offence to withhold pension money. In juxtaposition to that section, in section 32, was the following:

"Any person acting as attorney to receive and receipt for money for and in behalf of any person entitled to a pension shall, before receiving said money, take and subscribe an oath, to be filed with the pension agent, and by him to be transmitted, with the vouchers now required by law, to the proper accounting officer of the treasury that he has no interest in said money by any pledge, mortgage, sale, assignment, or transfer, and that he does not know or believe that the same has been so disposed of to any person."

The portion of section 32, above quoted, was subsequently embodied in section 4745 of the Revised Statutes.

The signification which we affix to the word "withholding" is also shown to be the one intended by Congress, by the previous portion of the paragraph of the act of 1884, which not only makes it an offence to directly or indirectly contract for, demand, or receive, or retain any greater compensation for services, or for instrumentality in prosecuting a pension claim than allowed by the act, but specifically inhibits the obtaining of payment thereof "at any other time or in any other manner" than as provided in the act, thus making it clear that where it was intended to punish the offence of receiving an illegal fee as well after the payment of the pension to the pensioner as before the receipt by him of the money, the in

Opinion of the Court.

tention was unequivocally conveyed: The clause "payment thereof at any other time or in any other manner than is herein provided" was not contained in the act of 1873, nor in section 5485 of the Revised Statutes, but was first embodied in the act of 1884, whereas the provision as to withholding of a pension has always been confined to the withholding of a pension "due" the pensioner. In the very next sentence of the act of 1873, following the designation of the offence of withholding, there is a provision affixing a penalty to the offence of embezzlement of pension money by a guardian from his ward. This latter offence is now embodied in Revised Statutes, section 4783, which reads as follows:

"Every guardian having the charge and custody of the pension of his ward who embezzles the same in violation of his trust, or fraudulently converts the same to his own use, shall be punished by fine not exceeding two thousand dollars or imprisonment at hard labor for a term not exceeding five years, or both."

It may be remarked, in passing, that it would be as reasonable to argue that one who had fully accounted as guardian and paid over to his ward the balance due, when the ward had attained his or her majority, could be prosecuted under section 4783, if, after such accounting and payment, he fraudulently obtained money from his former ward which might from the proof appear to be a portion of the balance so paid on the accounting, as to contend that when a pension, allowed and due from the government, had been paid to the pensioner, it continued to be "due," in any money transaction between the pensioner or his former agent or attorney.

The instruction given by the trial court that there was a withholding under the statute if the transaction in this case was a continuous scheme designed by the accused for the purpose of getting into his possession a portion of the pension money, made his guilt or innocence depend, not alone upon whether there was a withholding in the statutory sense of the word, but on whether there was a scheme to defraud. It was tantamount to instructing the jury that they should convict even though they were satisfied that the money had not

Opinion of the Court.

been withheld, if they believed that before payment over a scheme to defraud had arisen which was carried out after the pensioner had received the amount of the pension, and after it had been by her deposited in bank, and had created between her and the bank the legal relation of debtor and creditor. Scammon v. Kimball, 92 U. S. 362, 369-370; Florence Mining Co. v. Brown, 124 U. S. 385, 391. Of course, if the indictment had been so framed as to bring the facts, which it alleged constituted a withholding, within the reach of the first clause of the statute, which forbids the taking of illegal compensation, the instruction given by the court would have been sound. In that case, the taking of the money is made criminal, whether done before payment to the pensioner, at the time of such payment, or at any other time; withholding, on the contrary, is confined to money due, which, in no sense, cnbraces that which has been actually paid over to a pensioner and has passed under his complete control. However much pension money, even when taken into the possession of a pensioner, may retain its identity for certain purposes, we do not think, for the reasons just stated, that this instruction given was sound in law. The elementary rule is that penal statutes must be strictly construed, and it is essential that the crime punished must be plainly and unmistakably within the statute. United States v. Brewer, 139 U. S. 278. It follows, therefore, that the instruction asked was wrongfully refused and the instruction given was erroneous, and that there was error in the conviction as to the first count in the indictment. The verdict was a general verdict. That in a case such as this a general verdict is proper and imports of necessity a conviction as to both crimes, is settled. Claassen v. United States, 142 U. S. 140, 146. It follows, then, that though there was error as to the conviction of one of the offences charged, there was no error in the conviction upon the other. The question, therefore, arises whether error as to one only of the counts must lead to reversal of the conviction on that count alone or to like reversal as to the count where no error exists; in other words, whether, after reversing the judgment, which was on both counts, we can annul the verdict upon the first

Opinion of the Court.

count alone, and leave the verdict to stand as to the second count unaffected by the reversal.

It was held in England that at common law a reviewing court upon a writ of error in a criminal case had not the power, upon a reversal, to enter a proper judgment or to remand the cause for that purpose. In re Frederich, 149 U. S. 70, 74, citing Rex v. Bourne, 7 Ad. & El. 58. This conclusion rested upon the theory that a court of error was confined exclusively to the determination whether error existed, and if it found that it did, its duty was to reverse and discharge the prisoner. In Holloway v. Queen, 17 Q. B. 317, 328, it was held that since the passage of the act of 11 & 12 Vict. c. 78, § 5, the English courts possessed ample power upon the reversal of a judgment to remand the case for a proper judgment. The act referred to provided as follows:

"That whenever any writ of error shall be brought upon any judgment on any indictment, information, presentment, or inquisition in any criminal case, and the court of error shall reverse the judgment, it shall be competent for such court of error either to pronounce the proper judgment or to remit the record to the court below, in order that such court may pronounce the proper judgment upon such indictment, information, presentment, or inquisition."

In order to save all doubt on the subject, so also in the several States statutes have been adopted expressly conferring upon reviewing courts authority upon reversal to remand the cause to the lower court with such directions for further proceedings as would promote substantial justice.

The statutes in reference to the power of Federal appellate tribunals have from the beginning dealt with the subject.

By the judiciary act of September 24, 1789, c. 20, 1 Stat. 73, 85, it was provided in § 24 "that when a judgment or decree shall be reversed in a Circuit Court, such court shall proceed to render such judgment or pass such decree as the District Court should have rendered or passed, and the Supreme Court shall do the same on reversals therein, except where the reversal is in favor of the plaintiff or petitioner in the original suit, and the damages to be assessed, or matter to be decreed,

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