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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 November 22, 1902, and March 26, 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 December 15, 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 January 22, 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 Ferbuary 16, 1903, at the city of St. Louis, in the State of Missouri, for the same
Argument for Plaintiff in Error.
class of services and upon the same matter then 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.
Mr. John F. Dillon and Mr. Frederick W. Lehmann, with whom Mr. Harry Hubbard, Mr. John M. Dillon and Mr. W. H. Rossington were on the brief, for plaintiff in error:
The United States was not“ directly or indirectly interested" in the question whether a fraud order should issue against the Rialto Grain and Securities Company; and, therefore, the court should have sustained the demurrer to the indictment, or should have granted the motion in arrest of judgment, or should have directed a verdict for defendant, and should not have instructed that the United States was "interested” as alleged in the indictment. For legislative history of Rev. Stat. $ 1782, see Cong. Globe, Part I, 1st Sess., Debates on Sen. Bill 28, 38th Cong., 1863, 1864, pages 93, 460, 555, 559, 561, 714, 2773, and act as passed Ch. 119, Appx. Cong. Globe, 177.
Section 1782 does not say or mean things in which the people of the United States are interested, but things in which the United States, meaning the United States, as a Government, is interested.
The kind of interest of the United States which is meant in $ 1782 is shown by the things which the statute specifically mentions, and the “other matters or things” referred to are matters or things in which the United States has a similar interest, under the principle of ejusdem generis and noscitur a sociis. Lord Tenterden's Rule, 21 Am. & Eng. Ency. of Law,
Argument for Plaintiff in Error.
1012; Alabama v. Montague, 117 U. S. 602, 610. Such interest must be visible, demonstratable and capable of proof. Northampton v. Smith, 11 Metcalf, 390, 395; McGrath v. People, 100 Illinois, 464; Evans v. Eaton, 7 Wheat. 356; State v. Sutton, 74 Vermont, 12; Foreman v. Marianna, 43 Arkansas, 324; Taylor v. Commissioners, 88 Illinois, 526; C., B. & Q. R. R. Co. v. Kellogg, 54 Nebraska, 138; Sauls v. Freeman, 24 Florida, 209; Bowman's Case, 67 Missouri, 146.
Section 1782 is a criminal statute and is to be interpreted as such. The court should not seek to include therein anything not included unquestionably in the statute. United States v. Wiltberger, 5 Wheat. 76; United States v. Sheldon, 2 Wheat. 119; United States v. Morris, 14 Peters, 464; United States v. Clayton, 2 Dillon, 218.
There was no evidence establishing defendant's guilt as to any of the offenses charged in the indictment or of any offense whatever, and the court erred in refusing to direct a verdict of not guilty as to each count.
There was no testimony that the Senator had done anything violative of the statute in his Department or in the inconsequential supplemental talk. The testimony shows affirmatively that the charge that he tried to prevent the fraud order is not true. The letters and telegrams show that they had no reference to any fraud order.
The employment and actual services rendered by Senator Burton as general counsel had no relation to any matter charged in the indictment, and were not prohibited by $ 1782, and were paid for by his monthly salary as general counsel.
The payments made by the four checks to Senator Burton were made in Washington and not in St. Louis, and the court in St. Louis had, under the Constitution, no jurisdiction of the alleged offenses based on the checks, as set forth in the sixth, seventh, eighth and ninth counts.
The four checks, when they were paid in St. Louis, belonged neither to Burton nor to the Riggs National Bank of Washington, but in the instance of each check to a subsequent in
Argument for Plaintiff in Error.
dorsee, which was the owner of the check, and payment to such subsequent indorsee was not payment either to Burton or to the Riggs Bank. Neither the Riggs Bank nor any other bank was agent of Burton. Craigie v. Hadley, 99 N. Y. 131; Metropolitan National Bank v. Loyd, 90 N. Y. 530; Bank of Republic v. Millard, 10 Wall. 152; Thompson v. Riggs, 5 Wall. 663; Marine Bank v. Fulton Bank, 2 Wall. 252; Phanix Bank v. Risley, 111 U. S. 125; Scammon v. Kimball, 93 U. S. 362. St. Louis &c. Ry. Co. v. Johnston, 133 U. S. 566, distinguished.
The title to the check passed under commercial usage absolutely to the Riggs Bank and absolutely to each indorsee. The resolution of the New York Clearing House, June 4, 1896, had for its object to prevent indorsements “for collection” and to transfer absolute ownership. Evansville Bank v. German American Bank, 155 U. S. 556; Commercial Bank v. Armstrong, 148 U. S. 50.
If the Riggs National Bank of Washington was the agent of Burton to collect the checks, then the subsequent indorsees of said checks, if they were agents at all, were the agents of the Riggs National Bank and not of Burton. Hoover v. Wise, 91
v U. S. 308, 313; Exchange Bank v. Third Nat. Bank, 112 U. S. 276, citing Van Wart v. Woolley, 3 B. & C. 439; Tradesman's Bank v. Third National Bank, 112 U. S. 293.
The court should have directed an acquittal as there was no proof of venue. Stone v. State, 105 Alabama, 60; Randolph v. State, 100 Alabama, 139; Justice v. State, 99 Alabama, 180; Childs v. State, 55 Alabama, 28; Clark v. State, 46 Alabama, 307. An indictment can be found only in that county in which the crime has been committed. Stephen, Dig. Law Crim. Proc. 47; Rex v. Jones, 6 C. & P. 137; 4 Black. Com. 303; 1 Chitty Crim. Law, 189; 2 Hale P. C. 163; 2 Hawk. P. C., Ch. 25, $$ 24, 35, 51; Const. U. S., Art. III, $ 2, cl. 3, and 6th Amendment; Story on Const. § 1775; 2 Tucker, Const. 678; Callan v. Wilson, 127 U. S. 540; 12 Cyc. Law & Pro, 229, 239; Rev. Stat.
Argument for Plaintiff in Error.
196 U. S.
There can be no implied or constructive presence under the Constitution. United States v. Burr, 4 Cranch. Appx. 470.
The common law principle as to the local jurisdiction in respect of criminal offenses was adopted by the Constitution of the United States, substituting “State” and “State and district” for county.
The court erred in trying the defendant, a Senator of the United States, when the Senate was in session, and also in pronouncing judgment and sentence of fine and imprisonment against him, to be executed at a time when the Senate was in session. Const. U. S., Art. I, $ 6; Story, Const. $8 856-862, and authorities there cited.
This immunity from arrest is not personal, but belongs to the office of Senator for the benefit of the Government, the State of Kansas and of his constituents, and the defendant could not waive it, even if he had consented or attempted to do so. The record shows no such waiver in fact or in law, and the court had no power to try the cause while the Senate was in session.
The defendant's supposed waiver, whatever its legal effect, could, in any event, extend no further than the period during which the defendant failed to set up his constitutional immunity, and after March 29, 1904, the court had no power to pronounce the judgment and sentence of April 6, 1904, the Senate being then in session.
The proceedings involve the Constitution, or application of the Constitution, within the meaning of $5 of the act of March 3, 1891, and a writ will lie direct to this court. The trial and judgment are in conflict with the immunity of a Senator from imprisonment during the session. 2 Paterson Liberty of the Subject, 140, 188 et seq.; Rev. Stat. $ 727; May's Const. Hist. II, ch. VII, 4th ed. 3, and ch. XI; 3 Stubb's Const. Hist. 538;
Cooley's Const. Lim., 6th ed., 160; Jefferson's Parl. Man. $ 3, on Privilege; Yonge's Const. Hist. 370; Lord Campbell's Speeches, 179; 2 Hardcastle's Life, 1 Campbell, 188. As to what a defendant in a criminal prosecution may waive, see