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the spirit, and certainly not with the letter, of the pension laws, it has much to do with the defendant's actual criminality.

The law required the defendant to give the check to the pensioner, and say to him, substantially: "I have received my pay of $25, and this money is yours, except so far as I have made myself liable to the grocer for your bill. Go to the bank with me, if you please, and get your money, and then we will come back here, and you will pay what you have honestly agreed should be expended in advance for your support." That is what the law required this agent to say to Barnes. He did not take this course, but kept the money in his own hands. He says that in consequence of Barnes' habits and living, and at Barnes' request, the money, by agreement, was left in his hands. this, and says he thought he was getting the money as fast as it came from Washington. He was a very ignorant man; but Hewitt kept the money in his own hands, and made these payments in accordance, as he asserts, with the agreement and consent of the prisoner.

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Barnes denies

Now, I want the verdict of the jury upon this defence. I wish, therefore, when you go out, in the first place, you ask yourselves this question: Is it true, as alleged by the defendant and denied by the pensioner, that there was an agreement, to which Barnes assented, that one-half of this money · more than one-half- should go to Starns? Take all the testimony you have heard of the transaction and then inquire: Did Barnes ever agree, or did the defendant himself, at any time, have reason to believe that Barnes had agreed, that Starns should take the major part of this money for some bill which it is alleged he had against him? There is one difficulty about this view which is adverse to the defendant, but I must state it here, because we want all the facts. If that was the understanding at the time, how comes it that the defendant should be instrumental in drawing up a paper and getting Barnes to make his mark? Nay, more than that, why did he draw up an affidavit, and get Barnes to swear to it, that all this money which Starns got was given by the pensioner to Starns without any fear, force, or favor, collusion, or compulsion? Of course, gentlemen, if there is any collusion in this case between Starns and Hewett, with regard to this poor man's money, then all this defence is a pretense. The question for the jury to decide is, why did Hewitt protect himself or protect Starns from a proper and honest transaction, as he supposed, by getting him to swear to something that was not true?

Now, the only reply to that is this: it might be that Hewett did not believe that this money was bona fide due to Starns; he might have had some doubts about that, and he thought before he paid to Starns he would see whether the pensioner himself was willing to swear that this was a fair, free, and bona fide transaction, and not compulsion.

Then, the next point for you to consider is, was the retention of the $200 for professional fee in other matters in pursuance of an agreement with the pensioner? If this defendant performed professional services which he was entitled to be paid for, and if this pensioner agreed to let him have it upon the coming of this money; if he agreed, knowing that the money was there, that Hewett should retain $200 for these professional services,-then, in my judgment, there was no unlawful withholding. It was a debt that he owed an honest debt. But if that was an after-thought on the part of the defendant to cover up the retention of $200 which he originally intended to have received for his services as a pension agent or attorney, that is for you to say. Now, what is the truth of that matter? Had this defendant, Hewett, at the time of that settlement, performed such professional labor in other matters for this poor man that $200 was a fair and honest compensation for his labor, because there is no pretense that there was any contract as to the amount. Hewett says that Barnes agreed he should retain it, and Barnes denies it. You have heard the testimony of all the witnesses. Is that an after consideration, or was it an agreement made at the time in good faith?

Now, I wish, gentlemen, you to consider this case in the light of the testimony, and tell the court what your views are on those two points. If the evidence and law justify it, we all desire that the defendant should be acquitted.

Give the defendant the benefit of all reasonable doubts, and if, after careful consideration, you come to the conclusion that in point of fact this defence is made out, then bring in a verdict of not guilty. If, on the other hand, you think they have failed in that defence, it is your duty to convict him without regard to the consequences.

The defendant was acquitted.

WITHHOLDING PENSION MONEY-CONSTRUCTION.

UNITED STATES v. BENECKE.

[8 Otto, 447.]

In the Supreme Court of the United States, 1878.

1. Withholding Money collected as " pay and bounty" and "arrears of bounty" are not offenses under section 13 of the act of July 4, 1864.

2. Section 31 of the Act of March 3, 1873 does not apply to a case where the money was "withheld" before its passage.

Certificate of division in opinion between the judges of the Circuit Court of the United States for the Western District of Missouri.

The facts are stated in the opinion of the court.

Mr. Assistant Attorney-General Smith for the United States.
Mr. Louis Benecke, in propria persona, contra.

Mr Justice MILLER delivered the opinion of the court.

The defendant, Louis Benecke, was indicted in the District Court for the Western District of Missouri, and the sixth and tenth counts of the indictment charged him with unlawfully withholding arreages of pay and bounty from persons for whom, as agent and attorney, he had collected the same from the United States.

In the one case, the date was alleged to be the sixteenth day of March, 1868, and in the other the 17th of the same month and in both continuing thereafter.

On these counts the defendant was found guilty in the Circuit Court; and on motion for a new trial and arrest of judgment the judges of that court certified six questions of law to this court on which they differed, as applicable to the case.

The first of these is thus stated:

Is wrongfully withholding back pay or bounty by an agent or attorney from a claimant an offense under section 13 of the act of July 4, 1864,1 or under section 31 of the act of March 3, 1873?2

The act of 1864 is entitled "An Act supplementary to an act entitled An Act granting pensions, approved July 14, 1862.'" It consists of fifteen sections, the twelfth of which is devoted to prescribing specifically the compensation of agents and attorneys for procuring the allowance of pensions and bounty, or other claims, under the act; and the thirteenth section, to prescribing a punishment for violation of the twelfth. It is as follows:

"SEC. 13. And be it further enacted, that any agent or attorney who shall, directly or in directly, demand or receive any greater compensation for his services under this act than is prescribed in the preceding section of this act, or who shall contract or agree to prosecute any claim for a pension, bounty, or other allowance under this act, on the condition that he shall receive a per centum upon [, or] any portion of the amount of such claim, or who shall wrongfully withhold from a pensioner or other claimant the whole or any part of the pension or claim allowed and due to such pensioner or claimant, shall be deemed guilty of a high misdemeanor, and upon conviction thereof shall, for every such offense, be fined not exceeding $300, or imprisoned at hard labor not exceeding two years, or both, according to the circumstances and aggravations of the offense."

1 13 Stat. 389.

2 DEFENCES.

2 17 Id. 575, sec. 5485, Rev. Stat.

13

There is here no provision in regard to services for procuring pay, nor any provision in the act regarding it. The pensions to soldiers, their widows and orphans, is not pay, and the provisions for paying them are not under that act. Arrearages of pay were not collected under any pension law, or through the pension office. What is meant by bounty here is said in the briefs to be also passed upon and paid in another bureau. The indictment is perhaps on this point a little obscure. In the sixth count the defendant is charged as guilty of withholding arrearages of pay and bounty, and in the tenth with withholding pay and bounty.

Since the act in which the offense is described makes no provision for pay or for bounty, and the fees regulated and the acts forbidden are those done in regard to that act, it seems a reasonable construction of the penal part of the statute that withholding pay and bounty, which are not mentioned there, are not intended to be punished by the act.

It is not in reference to pay that Congress was legislating. The persons described who may be guilty are those prosecuting claims for pensions or bounty before the pension office. The offense described is "withholding from a pensioner or other claimant the whole or any part of the claim allowed and due said pensioner or claimant," and it is but a just limitation of the word “claimant " that he should be a claimant under that act, a claimant before the pension bureau. This part of the section is to be taken in connection with the taking of illegal fees, which manifestly refers to cases before the pension office, and which are described and punished in the same sentence and by the same penalty. The word "bounty" is not used in this sentence, nor the word “ pay," but the argument is that the word "claim" includes them. We think this would be an unjustifiable extension of a penal statute beyond its terms and against its purpose.

The first question is, therefore, to be answered in the negative, and we need not inquire if the statute was repealed, since the offense described in the indictment is not within it.

The offenses in this indictment are said to have been committed in 1868. The law then in existence did not make the act charged a crime. It is argued by counsel that withholding the money due is a continuous offense, and if the same money was withheld after the act of 1873 did make such withholding punishable, the indictment is good under that act. But without deciding here how far the withholding the money under a law which made that an offense when the wrongful withholding began, can be held to be a continuous offense, we are of opinion that it would be a forced construction of the act to hold that it was intended to apply to a case where the money had already been withheld five years when the statute was passed. The party might very well be criminally

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wrong in failing to pay when he received it; but Congress could hardly be supposed to intend to punish as a crime his failure to pay afterwards what was in law but a debt created five years before.

This answers the fifth question, namely, "Can the defendant be punished under section 31 of the act of March 3, 1873?" These answers also render unnecessary a reply to the others.

It is, therefore, ordered to be certified to the Circuit Court that the first and fifth questions are answered in the negative, and that answers to the others are thereby rendered unnecessary.

So ordered.

EMBEZZLEMENT BY OFFICERS - INTENT TO DEFRAUD.
UNITED STATES v. VOORHEES.

[9 Fed. Rep. 143.]

In the United States Circuit Court, New Jersey, 1881.

Under Section 5209, of the Revised Statutes of the United States, an intent to defraud the association, or other company or person, is an essential element of the crime in every case. The words, " with intent in either case to injure or defraud,” etc., apply as well to embezzlement, etc., of the funds, as to the making false entries in the books.

This was a motion to quash the indictment found against the defendant, as president of the First National Bank of Hackensack, under section 5209 of the Revised Statutes. The first count charges that the defendant did embezzle, abstract, and willfully misapply certain funds and credits of the bank of the value of $5,000.

The second is in the same form, except that it specifies the particular

stocks abstracted. Neither count alleges any intent.

It was moved to quash the first count because it was too general in its terms, and both counts because no intent is alleged. The section js as follows:

"SEC. 5209. Every president, director, cashier, teller, clerk, or agent of any association, who embezzles, abstracts, or willfully misapplies any of the moneys, funds or credits of the association; or who, without authority from the directors, issues or puts in circulation any of the notes of the association; or who, without such authority, issues or puts forth any certificate of deposit, who draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment, or decree; or who makes any false entry in any book, report, or statement to the association, with intent, in either case, to injure or defraud the

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