United States v. Schindler

• Decision Date: 11 June 1880
• Citation: 10 F. 547
• Parties: UNITED STATES v. SCHINDLER.
• Court: U.S. District Court — Southern District of New York

10 F. 547

UNITED STATES v. SCHINDLER.

United States Circuit Court, S.D. New York.

June 11, 1880

Wm. P Fiero, Asst. Dist. Atty., for the United States.

Stephen W. Fullerton, for defendant.

Before BLATCHFORD, BENEDICT, and Choate, JJ.

BENEDICT D. J.

The defendant was indicted under section 5485 of the Revised Statutes of the United States, by which statute it is made an offence for any agent or attorney, or any other person instrumental in prosecuting any claim for a pension, to wrongfully withhold from a pensioner. Having been found guilty, he now moves for a new trial and an arrest of judgment, upon various grounds, which will be considered in the order of their presentation by the defendant.

It is first contended that the court erred at the trial in charging the jury that, upon the evidence, they would be justified in finding that the defendant was instrumental in the prosecution of the claim of Mrs. Rachel Helfrich to a pension, and also in declining to charge the jury that, if they believed the testimony of the defendant, they must find that the defendant was not instrumental in the prosecution of Mrs. Helfrich's claim. In this, we think, there was no error. The statute, plainly, is not intended to be confined to the regular attorney for the pension claimant, recognized as such at the pension office; for the language is, 'any agent or attorney, or any other person. ' The testimony of the defendant, in regard to his connection with the claim of Mrs. Helfrich, sufficiently showed that he was instrumental in the prosecution of the claim, within the meaning of the statute.

The next point taken is that error was committed at the trial in refusing to permit the defendant to show that Mrs. Helfrich who had claimed the pension as the widowed mother of John Helfrich, was married to one Henry Peters some 16 years ago. Here, the argument is that the statute under which the defendant was indicted applies only to the withholding of a pension 'allowed and due,' and that no pension was due to Mrs. Helfrich if the fact be that she had married Henry Peters. But the evidence showed that the commissioner of pensions had passed upon Mrs. Helfrich's claim, had found her to be entitled to the pension, and had directed it to be paid to her by the name of Rachel Helfrich. This was conclusive of her right to the pension. The claim had been duly passed on by the officer authorized by law to determine the question of her right, and his finding was conclusive, as against the defendant, that the pension had been allowed and was due, within the meaning of the statute under which the defendant was indicted. To hold otherwise would permit an agent to obtain the allowance of a pension upon the ground that it was due, and, when indicted for withholding the money from the pensioner, escape punishment upon the ground that it was not due.

The next question is raised by the objection of the defendant to the testimony of Mary Bryan, that John Wyman, a witness called by the defendant, had said in the presence of Mrs. Helfrich, and after asking if she intended to proceed in this case: 'I do wish you would persuade her not to, because it will jug her just as well as it will us. ' This objection is pressed upon the ground that Wyman, upon inquiry by the prosecution, had denied making such a statement to Mary Bryan, and therefore it was error to permit his statement of a collateral fact to be contradicted. But the fact that Wyman, one of the defendant's witnesses, had requested Mrs. Bryan to persuade her mother not to proceed with her charge against the defendant, and the fact that such request was made in the presence of Mrs. Helfrich, accompanied by the statement that 'it will jug her just as well as the rest of us,' were not collateral facts. If true, they tended to show bias on the part of the witness, and a desire on his part to save the defendant from prosecution. They would have been admissible if no inquiry had first been made of Wyman in regard to them, and inquiry of and denial by him did not make them any less admissible. These facts, therefore, whether denied by Wyman or not, were properly admitted in evidence, for they went to the credibility of Wyman, the defendant's witness. The jury were charged that these facts were material in that aspect alone.

The only remaining point made relates to the charge of the court in respect to the defendant's failure to produce one Wendalin Smith as a witness. In order to a correct understanding of the question now to be considered, the circumstances under which it arose must be stated.

At the trial the decisive question was, whether at a certain time and place the pensioner, Mrs. Helfrich, received the whole of her pension money, or only the sum of $500.

The defendant, Schindler, testified that the pension check for $1,375, sent by the pension agent in a letter addressed to Mrs. Helfrich, was by him taken from the letter in the presence of one Wendalin Smith; that subsequently Mrs Helfrich, at her house, indorsed the check in the presence of himself and Wendalin Smith; that he and Wendalin Smith then went together to Monticello to get the check cashed; that part of the money obtained on the check was carried by himself and part by Wendalin Smith; that on the next day, at the house of Mrs. Helfrich, the whole was paid to her,-- Wendalin Smith, as well as himself, being...