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196 U. S.

Argument for the United States.

Hopt v. Utah, 110 U. S. 574, 579; Thompson v. Utah, 170 U. S. 343, 353; Schick v. United States, Harlan, J.'s, dissent, 195 U. S. 65.

Evidence was improperly admitted and the trial court did not by its charge and instructions to the jury cure the error which it made in the admission of improper evidence; but, on the contrary, confirmed such error. It also erred in its additional charge to the jury after they had come back for further instructions as well as in its original charge and instructions. First, in its instructions on propositions of law, and also in depriving the defendant of his constitutional right to have the question of his guilt of the charge laid in the indictment tried and decided by the jury. United States v. Burr, Appendix 4 Cranch. 470; and Second, in coercing the jury into rendering a verdict of guilty.

It is error to instruct so that the instruction implies that the court requires a conviction. Hodges v. The State, 15 Georgia, 117, 121.

Mr. Solicitor General Hoyt for the United States:

No constitutional question is presented or was saved so as to justify direct review in this court unless the court think fit to issue certiorari.

There are four important questions in the case: (1) Was there any proceeding pending before the Post Office Department in which the United States was interested? (2) Did the accused render services with the intent to influence the Department in such proceeding, and did he receive compensation therefor? (3) Did the trial court have jurisdiction? (4) Did the accused waive his privilege as Member of Congress, and was it competent for him to do so?

I. The power of Congress to legislate, and the authority of the Postmaster General under legislation are very broad, and the Postmaster General acts well within his established powers when he institutes a fraud order inquiry. Art. I, sec. 8, cl. 8, Constitution; §§ 396, 3929, 5480, Rev. Stat.; § 44, Postal Laws

Argument for the United States.

196 U.S.

and Reg.; Public Clearing House v. Coyne, 194 U. S. 497; Bates & Guild Co. v. Payne, 194 U. S. 106; In re Rapier, 143 U. S. 110.

No branch of any executive department more closely affects the people than the postal service and the United States is interested in a fraud order inquiry both because its revenue and property rights are affected, and because its intangible. functions and responsibilities constitute an interest within the meaning of the law. The United States is vitally interested to protect the people against a fraudulent use of the mails, and to prevent the dissemination of the "literature" of a fraudulent scheme. As to the broad scope of the Government's "interest" as parens patria, see United States v. Bunting, 82 Fed. Rep. 883, 884; Palmer v. Colladay, 18 D. C. App. 426; Tyner v. United States, 32 Wash. Law Rep. 258; Curley v. United States, 130 Fed. Rep. 1, 3-9.

II. Under the proved facts as to services to the Rialto Company, especially when they are regarded together and consecutively, there can be no doubt that services were rendered and compensation received in violation of the statute.

III. The last payment was made in cash to the accused at St. Louis, and that is sufficient to sustain the judgment. Claassen v. United States, 142 U. S. 140; Evans v. United States, 153 U. S. 584, 595; Goode v. United States, 159 U. S. 669; Putnam v. United States, 162 U. S. 687; Rice v. Ames, 180 U. S. 371. But the counts on the checks are good. The Government proved a custom and usage prevailing in Washington of regarding such checks as collection items, although because of a customer's good standing immediate credit might be given, such items being subject to immediate charge back if returned unpaid. The checks were not purchased by the bank; they were collected for Burton and paid to him at St. Louis. This question of purchase or collection was submitted to the jury under proper instructions. Ward v. Smith, 7 Wall. 447; Dodge v. Savings & Trust Co., 93 U. S. 379; Evansville Bank v. German American Bank, 155 U. S. 556, and cases cited;

196 U. S.

Argument for the United States.

Scott v. Ocean Bank, 23 N. Y. 289; St. Louis & S. F. Ry. Co. v. Johnston, 133 U. S. 566. Authorities cited by plaintiff in error distinguished.

Section 731, Rev. Stat., supports the jurisdiction below, because at all events the offense as well as the process of payment was completed at St. Louis. That statute is constitutional. In re Palliser, 136 U. S. 257; Horner v. United States, 143 U. S. 207; Putnam v. United States, 162 U. S. 687. Where an offense is begun in one district and completed in another it can be tried in the latter district.

IV. The accused was not arrested. That is the only privilege, exemption from arrest. It applies only to arrests in civil proceedings and not to indictable offenses. It was promptly waived. It is purely personal and may be waived. Arts. of Confed., Art. V; Bill of Rights of 1689, Stubbs, Select Charters of Const. History, 2d ed., Oxford, Clarendon Press, pp. 523-525; Art. I, sec. 6, cl. 1, of the Constitution; Coxe v. McClenachan, 3 Dall. 478; 1 Bl. Com. 164, 165; Bowyer's Com. on Const. Law of England, 82-84; Hallam's Const. Hist., vol. III, pp. 379 et seq.; Salk. 505; Stockdale v. Hansard, 9 Ad. and El. 225; 1 Wm. & M. § 2, c. 2; 12 & 13 Wm. III, c. 3; 11 Geo. II, c. 24; 10 Geo. III, c. 50; 1 Jac. I, c. 13; Viner's Abridgment, vol. II, p. 36; Bartlett v. Hebbes, 5 Term Rep. 686; Geyer's Lessee v. Irwin, 4 Dall. 107; I Story on the Const. $865.

This privilege is not like the right of trial by jury, which is a universal mandate to guard a system of jurisprudence and protect all the people, and therefore because of the public interest in the principle can only be waived and modified under certain peculiar conditions and situations. Hopt v. Utah, 110 U. S. 574. When there is no constitutional mandate and no public policy prohibiting, an accused may waive any privilege. which he is given the right to enjoy. Schick v. United States; Broadwell v. United States, 195 U. S. 65. Constituents are interested in being represented in the legislature at all times during a session, but they are also interested in being properly

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represented, and a man under indictment is not fit to represent them. The public is thus interested in having the privilege waived and the charge determined as promptly as possible. Waiver is requisite for another reason; it is an unwritten law of the Senate that it refrains from action within its own power to discipline or expel, provided only that a member under indictment does not appear in the Senate while such charge in the courts is undetermined in his favor.

In that case two courses only are open, either to waive the privilege and proceed to trial on the member's initiative, or else resign and give the electors the opportunity to select a fit representative.

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 3, 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, at 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, pro

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viding 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, No. 2, 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

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