The Supreme Court of the United States, in Williams vs. United States, 168 U. S., 382, 42 Law Ed., 512, held that a Chinese Inspector could be guilty of extortion under the old Section. Other cases of more or less interest are United States vs. Germane, 99 U. S., 508; U. S. vs. Waitz, 3 Sawy., 28 Federal Cases No. 16,631.

In United States vs. Harned, 43 Federal, 376, a District Judge, in passing upon a motion to dismiss the prosecution, held that the word "extortion" implies that the money paid was extorted on the part of the one who received it, and was paid unwillingly by the party paying the same, and that, therefore, where there was a voluntary payment by the witness, knowing at the time that it was in excess of the amount that was required to be paid, and that the same was willingly paid, and not demanded, would not support a prosecution, and therefore the motion to dismiss was granted.

Bearing in mind the definitions above quoted, and that there must be an allegation of corruptness, as above defined, it is not believed that the Harned case states the rule correctly. The purpose of the statute is to prevent the receipt by an officer of money in excess of that to which he is legally entitled, and if he asks for more, with knowledge and corrupt purpose, the asking, it is thought, would be the demand comprehended in the definitions, and the payment thereof would be sufficiently unwilling under the law to constitute the offense of extortion. It is not here argued that an innocent overcharge or an overpayment or an overdemand, or a taking of property or money without the corrupt thought and intent, would constitute the offense; but when an officer, knowing he is entitled to a certain sum, deliberately and corruptly makes his bill or demand for a larger sum, public policy would demand that he suffer prosecution under this statute.

The case of United States vs. Moore, in the 18 Federal, page 686, is a prosecution under old Section 5485, for demanding or receiving a greater sum than ten dollars in a pension case, and its reasoning may be of interest in studying the instant statute. Under the Revenue Acts, considered elsewhere, will be found a statute relating to extortion by revenue officers or agents. Under the old law, this inhibition was contained in Section 3169. The case of United States vs. Deaver, 14 Federal, 595, in passing upon this

particular statute, defines extortion to be the taking or obtaining of anything from another by a public officer, by means of illegal compulsion or oppressive exaction, and holds that an officer who collects a sum of money as special taxes from a person as wholesale and retail dealer in spirits, when no such taxes have been regularly assessed against him, is guilty of oppression, although such party has been guilty of selling spirits at wholesale and retail, without a license, as required by law, and the fact that he reported such taxes to the Collector of the District as received, and the Collector of the District, in his settlement with the Revenue Department was required to pay the sum collected after the manner of its collection was fully known to the Department, will not render legal the acts of the defendant, knowingly and wilfully done without authority of law.

That same case, in considering further the offense, decided in substance, that the principle and policy of the Common Law that a ministerial officer who had arrested a person, and who takes from such person money, or other reward, under a pretense or promise of getting the offender discharged, is guilty of a criminal offense, and under the Section 3169 is extended to officers of the Revenue, and any such officer who accepts or attempts to collect, directly or indirectly, as payment or gift or otherwise, any sum of money or other thing of value, for a compromise of a violation of the Revenue laws, is guilty of a misdemeanor.

§ 128. Receipting for Larger Sums than are Paid.Section 5483 of the old Statutes, is changed by Section 86 of the new Code, which reads as follows:

"Sec. 86. Whoever, being an officer, clerk, agent, employee, or other person charged with the payment of any appropriation made by Congress, shall pay to any clerk or other employee of the United States a sum less than that provided by law, and require such employee to receipt or give a voucher for an amount greater than that actually paid to and received by him, is guilty of embezzlement, and shall be fined in double the amount so withheld from any employee of the Government, and imprisoned not more than two years.

The old statute was limited by the word "officer," just as was old Section 5481. New Section 86, however, includes not only "officer," but clerk, agent, or employee, or other

person, and in such broadness includes, it is thought, every paying officer of the Federal Government. In United States vs. Mayers, 81 Federal, page 159, which was a decision under the old statute, a postmaster was held to be an "officer" within the meaning of that statute, and subject to indictment for having received a receipt for a larger amount than that which he actually paid a letter carrier employed in his office. That decision also contains a copy of the indictment in that case, which was held to be sufficient.

§ 129.

Species of Embezzlement.-Sections 5488, 5489, 5490, 5491, 5492, 5493, 5494, 5495, 5496, and 5497 of the 1878 Revised Statutes, denominate certain acts with reference to handlers of the public money, such as disbursing officers and depositories, to be statutory embezzlements, the specific elements of which are respectively therein included. These statutes are practically re-enacted under the following sections of the new Code.

§ 130. Disbursing Officer Unlawfully Converting, Etc., Public Money.-Section 87 of the new Code reads as follows:

"Sec. 87. Whoever, being a disbursing officer of the United States, or a person acting as such, shall in any manner convert to his own use, or loan with or without interest, or deposit in any place or in any manner, except as authorized by law, any public money intrusted to him; or shall, for any purpose not prescribed by law, withdraw from the Treasurer, or any assistant treasurer, or any authorized depository, or transfer, or apply, any portion of the public money intrusted to him, shall be deemed guilty of an embezzlement of the money so converted, loaned, deposited, withdrawn, transferred, or applied, and shall be fined not more than the amount embezzled, or imprisoned not more than ten years, or both."

§ 131. Failure of Treasurer to Safely Keep Public Moneys. Section 88 of the new Code is in the following words:

"Sec. 88. If the Treasurer of the United States, or any assistant treasurer, or any public depository, fails safely to keep all moneys deposited by any disbursing officer or disbursing agent, as well as all moneys deposited by any receiver, collector, or other person having money of the United States, he shall be deemed guilty of embezzlement of

I

the moneys not so safely kept, and shall be fined in a sum equal to the amount of money so embezzled and imprisoned not more than ten years."

§ 132.

Custodians of Public Money Failing to Safely Keep, Etc.-New Section 89 reads as follows:

"Sec. 89. Every officer or other person charged by any Act of Congress with the safe-keeping of the public moneys, who shall loan, use, or convert to his own use, or shall deposit in any bank or exchange for other funds, except as specially allowed by law, any portion of the public moneys intrusted to him for safekeeping, shall be guilty of embezzlement of the money so loaned, used, converted, deposited, or exchanged, and shall be fined in a sum equal to the amount of money so embezzled and imprisoned not more than ten years.

§ 133. Failure of Officer to Render Accounts, Etc.New Section 90 reads as follows:

"Sec. 90. Every officer or agent of the United States who, having received public money which he is not authorized to retain as salary, pay, or emolument, fails to render his accounts for the same as provided by law shall be deemed guilty of embezzlement, and shall be fined in a sum equal to the amount of money embezzled and imprisoned not more than ten years."

§ 134. Failure to Deposit, as Required.-Section 91 of the new Code reads as follows:

"Sec. 91. Whoever, having money of the United States in his possession or under his control, shall fail to deposit it with the Treasurer, or some assistant treasurer, or some public depository of the United States, when required so to do by the Secretary of the Treasury, or the head of any other proper department, or by the accounting officers of the Treasury, shall be deemed guilty of embezzlement thereof, and shall be fined in a sum equal to the amount of money embezzled and imprisoned not more than ten years.'

It has been determined, in the case of United States vs. Dimmick, reported in 112 Federal, 350, and affirmed in Dimmick vs. United States, 121 Federal, 638, that to constitute the offense of failing to deposit, as required, in these sections, it is not necessary that a person having such moneys in his possession should have been "required" to deposit the same by a specific order directed to him which. he failed to obey, but such requirement may be made by a

general rule or regulation of the Treasury Department, requiring such moneys to be deposited at stated times, and a wilful failure to comply with such rule is within the statute. So also, it seems that a similar general rule made by the Postmaster General, or any other executive officer, concerning the deposit of moneys by subordinates in that particular branch of the Government, would likewise be all that was necessary to meet the requirement of the statute under the word "required."

§ 135. Provisions of the Five Preceding Sections--How Applied.-New Section 92 reads as follows:

"Sec. 92. The provisions of the five preceding sections shall be construed to apply to all persons charged with the safe-keeping, transfer, or disbursement of the public money, whether such persons be indicted as receivers or depositaries of the same."

§ 136. Record Evidence of Embezzlement.-New Section 93 is in the following words:

"Sec. 93. Upon the trial of any indictment against any person for embezzling public money under any provision of the six preceding sections, it shall be sufficient evidence, prima facie, for the purpose of showing a balance against. such person, to produce a transcript from the books and proceedings of the Treasury, as required in civil cases, under the provisions for the settlement of accounts between the United States and receivers of public money."

§ 137. Prima Facie Evidence.-New Section 94 is in the following words:

"Sec. 94. The refusal of any person, whether in or out of office, charged with the safe-keeping, transfer, or disbursement of the public money to pay any draft, order, or warrant drawn upon him by the proper accounting officer of the Treasury, for any public money in his hands belonging to the United States, no matter in what capacity the same may have been received, or may be held, or to transfer or disburse any such money, promptly, upon the legal requirement of any authorized officer, shall be deemed, upon the trial of any indictment against such person for embezzlement, prima facie evidence of such embezzlement."

$138. Evidence of Conversion.-Section 95 of the new Code is in the following words: