Joseph Ralph Burton v. United States

Decision Date16 January 1905
Docket NumberNo. 343,343
PartiesJOSEPH RALPH BURTON, Plff. in Err. , v. UNITED STATES
CourtU.S. Supreme Court

The plaintiff in error having been convicted in the district court of the United States for the eastern district of Missouri of a violation of the Revised Statutes of the United States, § 1782 (U. S. Comp. Stat. 1901, p. 1212), and set forth in the margin, has brought the case here directly from that court by writ of error.

U. S. Comp. Stat. 1901, p. 1212.

Sec. 1782. No senator, representative, or delegate, after his election, and during his continuance in office, and no head of a department, or other officer or clerk in the employ of the government, shall receive or agree to receive rectly, for any services rendered, or to be rendered, to any person, either by himself or another, in relation to any proceeding, contract, claim, controversy, charge, accusation, arrest, or other matter or thing in which the United States is a party, or directly or indirectly interested, before any department, court-martial, bureau, officer, or any civil, military, or naval commission whatever. Every person offending against this section shall be deemed guilty of a misdemeanor, and shall be imprisoned not more than two years, and fined not more than ten thousand dollars, and shall, moreover, by conviction therefor, be rendered forever thereafter incapable of holding any office of honor, trust, or profit under the government of the United States.

The defendant was a member of the Senate of the United States, representing the state of Kansas. The indictment under which he was tried contained nine counts. The first count, after averring that the defendant was a senator from the state of Kansas, averred that on the 26th day of March, 1903, he received, at St. Louis, Missouri, from the Rialto Grain & Securities Company, $500 in money, as compensation for his services theretofore on November 22, 1902, and on divers other days between that day and the 26th day of March, 1903, rendered for the company before the Postoffice Department of the United States, in a certain matter then and there pending before that Department, in which the United States was directly interested, that is to say: Whether the company had violated the provisions of § 5480 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 3696), in that the company had, through its officers, devised a scheme and artifice to defraud, which was to be effected through correspondence by means of the postoffice establishment of the United States, and whether the correspondence of the company at St. Louis, Missouri, should not be returned with the word "fraudulent" plainly written or stamped upon the outside, as authorized by law. It is also averred that the services rendered by defendant to the company consisted in part of visits to the Postmaster General, the chief inspector, and other officers of the Postoffice Department, and of statements made to the Postmaster General, the chief inspector, and other officers, which visits and statements made by the defendant were made with a view and for the purpose of inducing the Postmaster General, the chief inspector, and other officers to decide the question then pending before the Post-office Department in a way favorable to the Rialto Company. The second count of the indictment was the same as the first, except that it averred the United States was "indirectly," instead of "directly," interested in the question as to whether or not a "fraud" order should be issued. Upon the third count the jury rendered a verdict of not guilty. Upon the fourth and fifth counts the government entered a nolle prosequi. The third, fourth, and fifth counts concededly charged but one offense, which was the same as that charged in the first and second counts, and all of these counts were based upon the payment of $500 in cash to defendant, at St. Louis, on the 26th of March, 1903. The sixth count averred the receipt by defendant, at the city of St. Louis, in the state of Missouri, of a check for the payment of $500, which was received by the defendant on the 22d of November, 1902, the check being drawn upon the Commonwealth Trust Company, of St. Louis, payable to the order of the defendant, and by him duly indorsed, and such check was paid by the trust company to defendant at St. Louis, as compensation for his services to the company between the 22d of November, 1902, and the 26th of March, 1903, before the Postoffice Department, in a matter in which the United States was directly interested. The count then contained the same averments of the character of the question pending before the Postoffice Department as are set forth in the first count. The seventh count is the same as the sixth, except that it averred the making of a check and the payment thereof to the defendant on the 15th day of December, 1902, at the city of St. Louis, in the state of Missouri, for the sum of $500; all other averments being the same as the sixth count. The eighth count averred the giving of a check for the sum of $500 on the 22d day of January, 1903, at the city of St. Louis, in the state of Missouri, in payment of services of the same nature as stated in the sixth and seventh counts. The ninth count is the same as the sixth, seventh, and eighth, except that it averred the receipt of a check by the defendant, dated the 16th day of February, 1903, at the city of St. Louis, in the state of Missouri, for the same class of services and upon the same matter them pending before the Postoffice Department. The defendant demurred to the indictment on the ground that it stated no crime, and that it showed that the United States had no interest, direct or indirect, in the matter before the Postoffice Department, inasmuch as the interest of the United States, under the statute, must be either a pecuniary or property interest, which may be favorably or unfavorably affected by action sought or taken in the given matter pending before the Department. The demurrer was overruled, and the defendant then pleaded not guilty.

John F. Dillon, Fred. W. Lehmann, Harry Hubbard, John M. Dillon, and W. H. Rossington for plaintiff in error.

[Argument of Counsel from pages 287-291 intentionally omitted] Solicitor General Hoyt for defendant in error.

[Argument of Counsel from pages 291-294 intentionally omitted] 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, § 2, of the Constitution, and also under the 6th 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, as 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 § 731 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 585), pro- 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 § 6 of article 1 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, 143 U. S. 570, 36 L. ed. 266 12 Sup. Ct. Rep. 522. 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 dissent from that...

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