United States v. Frank Mason No 510 United States v. Frank Mason No 511 United States v. Frank Mason No 512
| Decision Date | 28 November 1910 |
| Docket Number | Nos. 510,511,512,s. 510 |
| Citation | 31 S.Ct. 28,54 L.Ed. 1133,218 U.S. 517 |
| Parties | UNITED STATES, Plff. in Err., v. FRANK H. MASON. NO 510. UNITED STATES, Plff. in Err., v. FRANK H. MASON. NO 511. UNITED STATES, Plff. in Err., v. FRANK H. MASON. NO 512 |
| Court | U.S. Supreme Court |
Assistant Attorney General Fowler for plaintiff in error.
Messrs. Boyd B. Jones and George L. Wilson for defendant in error.
The defendant, the clerk of the district court of the United States for the district of Massachusetts, was indicted for the embezzlement of certain moneys of the United States. Separate indictments were found as to moneys received by the clerk in the years 1906, 1907, and 1908, respectively. They are precisely alike, save for the difference in the years and the amounts specified. In each case the circuit court sustained a demurrer as to three counts of the indictment, the second, third and fourth, and the judgments on the demurrers are brought here for review.
Each of these three counts—which are set forth in the margin —states that the moneys were a 'portion of a
Second count. And the jurors aforesaid, on their oath aforesaid, do further present, that said Frank H. Mason during all of the year 1908 was, and ever since has been, an officer of the United States, to wit, clerk of the district court of the United States for the district of Massachusetts, and on said 1st day of February, in the year 1909, had in his possession and under his control, to wit, at Boston, aforesaid, certain public moneys of the United States, a particular description whereof is to said grand jurors unknown, to wit, moneys to the amount and of the value of $387, which, during said year 1908, had come into his possession and under his control in the execution of his office as such officer, and under authority and claim of authority as such officer, and were a portion of a surplus of fees and emoluments of his said office over and above the compensation and allowances authorized by law to be retained by him for said year 1908, which said public moneys said Frank H. Mason, on said 1st day of February, in the year 1909, as such officer, was charged, by certain acts of Congress, to wit, §§ 823, 828, and 844 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, pp. 632, 635 and 647), and the act approved June 28, 1902, 32 Stat. at L. 419, chap. 1301, and by divers other acts of Congress, safely to keep; that said Frank H. Mason, on said 1st day of February, in the year 1909, at Boston, aforesaid, the same public moneys unlawfully did fail safely to keep, as required by said acts of Congress, and, on the contrary, the same then and there unlawfully did convert to his own use; and that thereby said Frank H. Mason then and there was guilty of embezzlement of said public moneys so converted.
Third count. And the jurors aforesaid, on their oath aforesaid, do further present, that said Frank H. Mason, during all of the year 1908, was, and ever since has been, an officer of the United States, to wit, clerk of the district court of the United States for the district of Massachusetts, and on said 1st day of February, in the year 1909, had in his possession and under his control, to wit, at Boston, aforesaid, certain public moneys of the United States, a particular description whereof is to said grand jurors unknown; to wit, moneys to the amount and of the value of $387, which, during said year 1908, had come into his possession and under his control in the execution of his office as such officer, and under authority and claim of authority as such officer, and were a portion of a surplus of fees and emoluments of his said office over and above the compensation and allowances authorized by law to be retained by him for said year 1908, which said public moneys said Frank H. Mason, on said 1st day of February, in the year 1909, as such officer, was charged, by certain acts of Congress, to wit, §§ 823, 828, and 844 of the Revised Statutes of the United States, and the act approved June 28, 1902, 32 Stat. at L. 419, chap. 1301, and by divers other acts of Congress, safely to keep; that said Frank H. Mason, on said 1st day of February, in the year 1909, at Boston, aforesaid, the lastmentioned public moneys unlawfully did fail safely to keep, as required by said acts of Congress, and, on the contrary, the same then and there unlawfully and fraudulently did convert to his own surplus of fees and emoluments of his said office over and above the compensation and allowances authorized by law to be retained by him.' The charge of the second count is that the defendant 'the same public moneys unlawfully did fail safely to keep' as required by acts of Congress, 'and, on the contrary, the same then and there unlawfully did convert to his own use,' and thereby 'was guilty of embezzlement of said public moneys so converted.' The third count is the same as the second, except that it charges that the defendant converted the moneys 'fraudulently' as well as 'unlawfully.' The fourth count charges that he should have paid the money, that is, the alleged surplus, to the United States, 'in the manner provided by law,' and that he 'the same money unlawfully, wrongfully, and fraudulently did convert to his own personal use and embezzle.'
To sustain the counts, the assignment of errors refers to §§ 5490 and 5497 of the Revised Statutes (U. S. Comp. Stat. 1901, pp. 3704, 3707), and to the act of March 3, 1875, chapter 144 ().
Section 5490 is as follows:
'Every officer or other person charged by any act of Congress with the safe-keeping of the public moneys, who fails to safely keep the same, without loaning, using, converting to his own use, depositing in banks, or exchanging for other funds than as specially allowed by law, shall be guilty of embezzlement of the money so loaned, used, converted, deposited, or exchanged; and shall be impris- oned not less than six months nor more than ten years, and fined in a sum equal to the amount of money so embezzled.'
Section 5497, with the addition made by the amendment of February 3, 1879, chapter 42 (20 Stat. at L. 280, U. S. Comp. Stat. 1901, p. 3707), provides:
'Every banker, broker, or other person not an authorized depositary of public moneys, . . . who uses, transfers, converts, appropriates, or applies any portion of the public money for any purpose not prescribed by law, . . . is guilty of an act of embezzlement of the public money so deposited, loaned, transferred, used, converted, appropriated, or applied, and shall be punished as prescribed in section fifty-four hundred and eighty-eight.
'And any officer connected with, or employed in, the internal revenue service of the United States, and any assistant of such officer, who shall embezzle or wrongfully convert to his own use any money or other property of the United States, and any officer of the United States, or any assistant of such officer, who shall embezzle or wrongfully convert to his own use any money or property which may have come into his possession or under his control in the execution of such office or employment, or under color or claim of authority as such officer or assistant, whether the same shall be the money or property of the United States or of some other person or party, shall, where the defense is not otherwise punishable by some statute of the United States, be punished by a fine equal to the value of the money and property thus embezzled or converted, or by imprisonment not less than three months nor more than ten years, or by both such fine and imprisonment.'
By the act of March 3, 1875, chapter 144, § 1 (), 'any person who shall embezzle, steal, or purloin any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, shall be deemed guilty of felony.'
It is also contended in argument, that the facts alleged in the indictment bring it within the scope of § 5489 of the Revised Statutes, which provides that if 'any public depositary fails safely to keep all moneys deposited' he shall be deemed guilty of embezzlement; and this, under § 5493, is to be construed 'to apply to all persons charged with the safe-keeping, transfer, or disbursement of the public money, whether such persons be indicted as receivers or depositaries of the same.'
What, if any, application these provisions may have to the clerk of the district court, with respect to the fees and emoluments of his office, can be determined only after a consideration of the history of his relation to these moneys and of the stautes which specifically define his rights and duties. Prior to 1841 the clerks were not required to render any account of their fees to the government. United States v. Hill, 120 U. S. 169, at page 176, 30 L. ed. 627, 630, 7 Sup. Ct. Rep. 510. The act of March 3, 1791, chapter 22, § 1 (1 Stat. at L. 217), fixed their compensation for attending court and made an allowance for traveling. That of May 8, 1792, chapter 36, § 3 (1 Stat. at L. 277), added such fees as were allowed by the supreme court of the state, and authorized the court to grant a reasonable compensation for the discharge of duties not performed by the clerks of the state court, and for which the laws of the state made no allowance. But, under these statutes, the fees and emoluments received by the clerks were their own property. And they were to be recovered 'in like manner as the fees of the officers of the states respectively for like services.' 1 Stat. at L. 278, § 6, chap. 36, U. S. Comp. Stat. 1901, p. 658.
In 1841, for the first time, the clerks were limited as to the amount which they were entitled to retain out of their fees. The act of March 3, 1841, chapter 35, § 1 (5 Stat. at L. 427), provided that the fees and emoluments...
To continue reading
Request your trial
-
U.S. v. Bailey, 82-2280
...could not constitute embezzlement. This was simply an application of the principle previously recognized in United States v. Mason, 218 U.S. 517, 31 S.Ct. 28, 54 L.Ed. 1133 (1910) that where a debtor-creditor relationship exists the unlawful retention of funds by the debtor is not embezzlem......
-
Terry v. Kolski
...894, 30 L.Ed. 946 (1887); Logan v. United States, 144 U.S. 263, 302, 12 S.Ct. 617, 36 L.Ed. 429 (1892); United States v. Mason, 218 U.S. 517, 525, 31 S.Ct. 28, 54 L.Ed. 1133 (1910).20 United States v. Sischo, 262 U.S. 165, 168, 169, 43 S.Ct. 511, 512, 67 L.Ed. 925 (1923), the United States ......
-
State v. Bickford
... ... 288; ... United States v. Smith, 124 U.S. 525, 31 L.Ed. 534, ... United States ... v. Mason, 218 U.S. 517, 54 L.Ed. 1133, 31 S.Ct. 28; ... State, 12 Wis. 519; People v ... Frank, 28 Cal. 507; State v. Burns, 44 Conn ... 482; State v. Albertson, 20 N.D. 512, 516, 128 N.W ... 1122; F. A. Patrick & Co. v ... ...
-
U.S. v. Milton, s. 91-3238
...at 17. 2 The Miltons, citing several federal appellate decisions and two ancient Supreme Court opinions (United States v. Mason, 218 U.S. 517, 31 S.Ct. 28, 54 L.Ed. 1133 (1910); United States v. Johnston, 268 U.S. 220, 45 S.Ct. 496, 69 L.Ed. 925 (1925)), counter that supervision and control......