12 F. 46 | W.D. Tenn. | 1882
('charging jury.) The indictment in this case charges a violation of section 5485 of the Revised Statutes, which is as follows: ■ :
' “Any agent or attorney, or other person instrumental in prosecuting any claim for pension or bounty land, who shall directly or indirecty contract for, demand, or receive, or retain any greater compensation for his services or instrumentality in prosecuting a claim for pension or bounty land than is provided in the title pertaining to pensions, or who shall wrongfully withhold from a pensioner or claimant the whole or any part of the pension or claim allowed and due such pensioner or claimant, or the land-warrant issued to any such claimant, shall be deemed guilty of a high misdemeanor, and upon conviction thereof shall, for every such offence, be fined not exceeding $500, or imprisoned at hard labor not exceeding two years, or both, atthe discretion of the court.”
The statute, you will perceive, prescribes the punishment for two offences in relation to the prosecution of a claim for pension, — one, t'he contracting for, demanding etc., of greater compensation for the agent’s services than allowed by law; the other, the withholding by the agent of the whole or any part of the pension or claim allowed; and the case under consideration relates only to this latter offence. The plain purpose of all those stringent provisions of the pension laws which the district attorney has read in your hearing is to secure absolutely to the pensioner the bounty of the government, It cannot, on any pretext, be lawfully diverted, directly or indirectly, while in transit to his hands. It is not assets for the payment of debts, and can be in no' way pledged or impounded for that purpose, and all dealings in that direction are null and void. There is a somewhat analogous policy which protects the salaries of officers of the state and federal governments, and it is generally recognized everywhere. But here congress has, by the most stringent special' legislation, sought to protect these pensioners, so munificently endowed, .against all ppssi-' bility of being defrauded by the agents they employ to collect their dues from the government.
Nothing less than the unconditional payment of the full amount, Less the small fee allowed, will discharge the agent from the penal-'
The words of the statute do not in terms confine the offence to a wrongful withholding of money collected on the claim, which would, of course, be a violation of it, but extend to “the whole or any part of the pension or claim allowed or due such pensioner or claimant.” If the statute is to be restricted to withholding the money actually paid by the treasury on the check or warrant of the government to the agent, it would be very much limited in its operation as a protection to the pensioner. The practice of the department under these pension laws is to send the warrant drawn on the treasury direct to the pensioner, to be paid by the treasurer on demand of the holder by proper indorsements, and every effort is made to prevent this warrant from falling info the hands of the agent, who is prohibited from receiving it, and to whom postmasters are forbidden to deliver it by the postal laws and regulations. The offence cannot be restricted to withholding money collected on valid indorsements, and the statute construed to turn loose all who, by forgery or other frauds, succeed in capturing the warrant, notwithstanding these prohibitions, collect the money or obtain its value, and neglect to pay it to the pensioner.
The argument of the defendant’s counsel, and the instructions asked for by him, would result in punishing all who withhold the money realized on a pensioner’s genuine signature, and in discharging all who obtain and withhold it on his forged signature, because the government, it may be, would remain liable to the pensioner for the amount due, the payment on a forged signature not being in law a payment. This would be a strange result, and I cannot give the instructions asked for.
It was the duty of the defendant to have delivered this check itself to the pensioner, and his failure to do so was a violation of this statute, unless he collected the money on it and paid it to her. Even if the power of attorney operated to authorize the defendant to collect and receive the money, the money itself, when so collected, was under the protection of the statute until paid unconditionally to the pensioner. U. S. v. Hall, 98 U. S. 343, 354. If you believe from the evidence that the defendant received the check, passed it to Irvine by
Verdict of guilty, and new trial refused.