King v. United States

• Decision Date: 07 January 1902
• Docket Number: 1,092.
• Citation: 112 F. 988
• Parties: KING v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

112 F. 988

KING v. UNITED STATES.

No. 1,092.

United States Court of Appeals, Fifth Circuit.

January 7, 1902

T. M Stevens and Henry Hanaw, for plaintiff in error.

M. D Wickersham, for defendant in error.

Cyril W. King, captain and assistant quartermaster U.S.V., the plaintiff in error, was tried in the court below on an indictment charging him with accepting a bribe from one J. H Hobson, a government contractor, in violation of section 5501 of the Revised Statutes. The verdict of the jury was as follows:

'And now comes the jury, and upon their oaths do say: We, the jury, find the defendant guilty as charged in the second count of the indictment. This 30th day of May, A. D. 1901.

E. O. Fowlkes, Foreman.'

The second count of the indictment reads as follows:

'And the grand jurors aforesaid, upon their oaths aforesaid, do further find and present that on, to wit, the 6th day of May in the year of our Lord 1901, within said district, and within the jurisdiction of this court, and before the finding of this indictment, Cyril W. King, whose name, other than as herein states, is unknown to the grand jury, late of the district aforesaid, did receive from one J. H. Hobson, who was then and there under contract with the quartermaster's department of the United States to furnish material and construct certain buildings on the Fort Morgan military reservation, in the Southern district of Alabama, two thousand dollars ($2,000) in money, in three installments, to wit, five hundred dollars ($500) about the 1st day of November, A. D. 1900, five hundred dollars ($500) about the 15th day of November, A. D. 1900, and one thousand dollars ($1,000) about the 7th day of January, A. D. 1901, with intent then and there to influence the official action of him, the said Cyril W. King, in his official capacity, in accepting and rejecting material used and to be used in the construction of certain buildings on the Fort Morgan military reservation as aforesaid; and he, the said Cyril W. King, did also receive from the said J. H. Hobson the said two thousand dollars (2,000) in money with intent to influence his, the said Cyril W. King's, official action in the payment of money to said contractor, J. H. Hobson, as aforesaid, at the times and in the manner prescribed in the said contract, which the said J. H. Hobson had with the quartermaster's department of the United States for the construction of said certain buildings on the Fort Morgan military reservation as aforesaid, which said matters and things, to wit, the acceptance and rejection of material used and to be used in the construction of said certain public buildings on said Fort Morgan military reservation by said J. H. Hobson, and the payment therefor, were then and there pending before the said Cyril W. King, or might be brought before him in his official capacity, by virtue of the authority vested in him, the said Cyril W. King, by the war department of the United States,-- contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.

'M. D. Wickersham, U.S. Attorney.'

After conviction as aforesaid, the said King moved the court in arrest of judgment, and to set aside the verdict of the jury and quash the second count of the indictment, on the ground that the said second count fails to set forth that the said King was an officer of the United States, or was a person acting for or in behalf of the United States in any official capacity, or in behalf of the United States by virtue of the authority of any department or office of the government thereof, and because the said second count does not state facts constituting a crime, misdemeanor, or offense under the constitution, statutes, and laws of the United States. This motion was denied, and the ruling is assigned as error. Afterwards, and before sentence, the said King further moved in arrest of judgment, and for a discharge from any obligation to answer in the said cause, on the ground that the verdict of the jury in the said cause was incomplete and insufficient, in that it fails to find or assess the amount of the bribe received or accepted by the defendant. The refusal of the court to grant this motion is also assigned as error.

On the trial before the jury, J. H. Hobson, the contractor named in the indictment as giving a bribe to King, was introduced as a witness, and testified substantially as follows: He had a contract with the war department of the government represented by the defendant, for the construction of certain public buildings at Ft. Morgan. There were plans and specifications connected with the contract. He was executing the contract under the direction and supervision of the defendant from June, 1900, to the early part of January, 1901. The actual construction under the contract did not begin until in July. The defendant inspected and passed on the material and made the payments under the contract from time to time. That prior to November 1, 1900, a great deal of material was condemned and rejected. The material was, as a rule, inspected and condemned after it had been put in the buildings, and it had to be taken out. A very little was inspected before being put in the buildings, although it was there on the ground, subject to and available for inspection. A large portion of the material which had been condemned and rejected and taken out of the building was after October put back in the buildings. Some lumber had been cut in such lengths that it could not be used again. All that could be uses was used. This was after November 1st. After that time very little material was condemned, and no more than should have been condemned as being unfit. This was especially the case with some cement which was unfit for the work, and had been brought to it by mistake. Witness further testified that up to October 31st there was $7,000 or $8,000 worth of work done, and that on that day, for the first time, he requested a payment to be made to him; that he and defendant had several hours' talk about the material, and the condemnation and rejection of it, and on the subject of payments. No payment was then made; the defendant assigning various reasons why he did not care to make a payment at that time,-- among others, that he was not satisfied his accounts would be audited, inasmuch as the work did not actually begin until after June 30th,--and that he should wait until the work was completed, etc. This conversation was at defendant's headquarters at Ft. Morgan. Witness and defendant came out of the building together, and defendant suggested that witness come to defendant's residence after supper that evening, and perhaps they could reach some agreement in reference to these matters. Witness called at defendant's residence as suggested, and met defendant about 10:30 or 11 o'clock at night. Defendant said he had to go out to the end of the dock to see his engineer, Foster, on a matter of business, and asked witness to go with him. They went out and saw Foster, and, returning, stopped about half-way back and sat down. They were talking as they went along, and sat down and talked. Defendant asked witness if he was paying anybody in Washington for favors or for protection. Witness answered he was not, and said that, as a matter of policy, if he was going to pay anybody any money, it would be the constructing quartermaster on the post, whereupon defendant said that he had expected to make 10 per cent. on the amount of the contract, or about $5,000, out of the operation. Witness replied that the amount named was too large; that he could not afford to pay any such amount. Defendant, in the conversation, said he thought, if the matter was properly arranged, witness could make $6,000 or $8,000 out of the job, and that he knew he had cost witness a good deal of money there, and he would not expect any such sum as $5,000 under any arrangement he could make with him. After talking the matter over, it was finally agreed between them that witness should pay defendant $3,000. Defendant then said he wanted the money paid him in sums of $500 every time he made witness a payment, and that he wished the money brought to his house to him at night; and it was then and there agreed that defendant was to get $500 out of each payment made by him to witness until the total amount of $3,000 was paid him. Defendant then said he would make witness a payment under his contract on the next day, which payment was accordingly made at quite an early hour in the morning, and was by check drawn by defendant on the subtreasury at New York. On the same day witness came to Mobile and deposited the check to his account with the Leinkauf Banking Company. The check was for about $4,400. Witness drew $500 of the amount, returned to Ft. Morgan, went to defendant's house at night, and handed the money to him. There was no one present except defendant and witness. The next payment was made about the middle of November, by check, which was deposited with the same bank, and a few days thereafter $500 out of this payment was given to defendant in the same manner and place as the former payment. The next two payments to witness were made in December. By agreement, no money out of these payments was paid defendant until in January, 1901, when $1,000 was handed him. This payment was made in Mobile, and it was the last made. This prosecution was then started, and defendant was arrested under it. Witness further testified that after the agreement for the payment of the $3,000 the defendant's action in the acceptance of material was largely more liberal, and a large quantity of material which had been rejected was afterwards accepted and used in the buildings. The United States attorney asked the witness 'whether the...