Frisbie v. United States

• Decision Date: 18 March 1895
• Docket Number: No. 811,811
• Citation: 39 L.Ed. 657,15 S.Ct. 586,157 U.S. 160
• Parties: FRISBIE v. UNITED STATES
• Court: U.S. Supreme Court

157 U.S. 160

15 S.Ct. 586

39 L.Ed. 657

FRISBIE

v UNITED STATES.

No. 811.

March 18, 1895.

On June 27, 1890, congress passed an act (26 Stat. 182), the fourth section of which is as follows:

'That no agent, attorney, or other person engaged in preparing, presenting, or prosecuting any claim under the provisions of this act shall, directly or indirectly, contract for, demand, receive, or retain for such services in preparing, presenting, or prosecuting such claim a sum greater than ten dollars, which sum shall be payable only upon the order of the commissioner of pensions, by the pension agent making payment of the pension allowed, and any person who shall violate any of the provisions of this section, or who shall wrongfully withhold from a pensioner or claimant the whole or any part of a pension or claim allowed or due such pensioner or claimant under this act, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall, for each and every such offense, be fined not exceeding five hundred dollars, or be imprisoned at hard labor not exceeding two years, or both, in the discretion of the court.'

Under this statute an indictment was returned to the circuit court of the United States for the Eastern district of Louisiana, the first count of which is as follows:

'The grand jurors of the United States of America, duly impaneled and sworn, in and for the Eastern district of Louisiana, in the said circuit court, on their oath present that Henry N. Frisbie, late of the Eastern district of Louisiana, lawyer, on the third day of January, A. D. eighteen hundred and ninety-four, at the city of New Orleans, in the Eastern district of Louisiana, and within the jurisdiction of this court, then and there being a person engaged in preparing, presenting, and prosecuting a claim for pension upon the said United States _____ entitled 'An act granting pensions to soldiers and sailos who are incapacitated for the performance of manual labor, and providing for pensions to widows, minor children, and dependent parents,' approved June 27, 1890, to wit, a claim made by and on behalf of one Julia Johnson, under the said act of congress, as the widow of Lewis Johnson, deceased, late a soldier in the military service of the United States during the war of the Rebellion, to wit, a private in Co. C, 87 Reg., Co. B, 84 U. S. C. Vol. Inf., feloniously and wrongfully did violate the provisions of the fourth section of the said act of congress, in that he did then and there feloniously and wrongfully demand, receive, and retain of and from the said claimant, Julia Johnson, for his said services in preparing, presenting, and prosecuting her said claim for pension aforesaid, a sum of money greater than ten dollars, the exact amount thereof being to the jurors aforesaid unknown.'

To this indictment the defendant demurred 'on the ground that the law under which said indictment was found is unconstitutional and void, for the reason that congress has no power to regulate the price of labor, nor impair the obligation of contracts. (2) that only the pensioner can make complaint. No case can be maintained unless affidavit is made by pensioner. (3) Charge is not sustained by the claim set out.' The demurrer having been overruled, he entered a plea of not guilty. A trial was had, which resulted in a verdict of guilty. A motion for a new trial having been overruled, the defendant was sentenced to imprisonment for three months. To reverse such judgment he sued out this writ of error.

O. B. Sansum, for plaintiff in error.

Asst. Atty. Gen. Whitney, for the United States.

Mr. Justice BREWER, after stating the facts as above, delivered the opinion of the court.

Neither the testimony nor the instructions are preserved in the record, and the only questions presented for our consideration arise on the indictment.

It is objected, in the first place, that the indictment lacks the indorsement 'A true bill,' as well as the signature of the foreman of the grand jury. No objection was made on this ground in the circuit court, either before or after the trial. There is in the federal statutes no mandatory provision requiring such indorsement or authentication, and the matter must therefore be determined on general principles. It may be conceded that in the mother country, formerly at least, such indorsement and authentication were essential. 'The indorsement is parcel of the indictment, and the perfection of it.' King v. Ford, Yel. 99. But this grew out of the practice which there obtained. The bills of indictment or formal accusations of crime were prep red and presented to the grand jury, who, after investigation, either approved or disapproved of the accusation, and indicated their action by the indorsement, 'A true bill,' or 'Ignoramus,' or sometimes, in lieu of the latter, 'Not found,' and all the bills thus acted upon were returned by the grand jury to the court. In this way the indorsement became the evidence, if not the only evidence, to the court of their action. But in this country the common practice is for the grand jury to investigate any alleged crime, no matter how or by whom suggested to them, and, after determining that the evidence is sufficient to justify putting the party suspected on trial, to direct the preparation of the formal charge or indictment. Thus they return into court only those accusations which they have approved, and the fact that they thus return them into court is evidence of such approval, and the formal indorsement loses its essential character. This matter is fully discussed by Beasley, C. J., in State v. Magrath, 44 N. J. Law, 227, 228; by Moncure, president of the court of appeals, in Price v. Com., 21 Grat. 846, 856; and by Merrick, J., in Com. v. Smyth, 11 Cush. 473, 474, the latter saying: 'This omission in an indictment is simply the omission of a form, which, if oftentimes found convenient and useful, is in reality immaterial and unimportant.' In each of these cases it was held by the court that the lack of the indorsement was not necessarily and under all circumstances fatal to the indictment. In 1 Bish. Cr. Proc. § 700, it is said: 'In the absence of a mandatory statute, it is the better view that both the words 'A true bill' and the signature of the foreman may be dispensed with, if the fact of the jury's finding appears in any other form in the record.' See, also, State v. Creighton, 1 Nott & McC. 256; State v. Cox, 6 Ired. 440. In Gardner v. People, 3 Scam. 83, the court held that the signature of the foreman, though a statutory requirement, would be presumed if the indictment was recorded.

Nevertheless, as it is not an unvarying rule for the grand jury to return into court only the indictments which they have found, it is advisable, at least, that the indictment be indorsed according to the ancient practice, for such indorsement is a short, convenient, and certain method of informing the court of their action.

The defect, however, is waived if objection is not made in the first instance and before trial, for it does not go to the substance of the charge, but only to the form in which it is presented. There is a general unanimity of the authorities to this effect. In State v. Agnew, 52 Ark. 275, 12 S. W. 563, it was held that a statute requiring an indorsement of 'A true bill,' signed by the foreman, was directory, and the defect of a lack of such indorsement was waived unless made before pleading. In McGuffie v. State, 17 Ga. 497, while holding that the usual practice of indorsement was advisable, the court said that the objection on account thereof was 'an exception...