United States v. Adams , 2 Dakota 305 ( 1880 )

Moody, J.

The plaintiff in error was postmaster at Deadwood, Dakota Territory, from about April, 1877, until the 26th day of June, 1879. At the August 1880 term of the District Court for the First Judicial District of said Territory, he was indicted for embezzlement of postoffice funds, belonging to the United States, received by him as such postmaster, was tried and convicted, and now brings the cause to this court by writ of error.

The errors alleged are:

First. That the District Judge refused, upon defendant filing his affidavit of prejudice, to call another judge to preside at the trial.

Second. In receiving and rejecting certain evidence.

Third. In refusing to instruct the jury, as requested by defendant.

Fourth. In certain portions of the instructions, as given.

I. Before the trial, the defendant filed his affidavit, alleging prejudice in the judge, using the language employed in the Code of Criminal Procedure of the Territory, and thereupon, moved the court to call another judge to preside at the trial. This the court refused to do, upon the ground among others, that no power existed to make such an order.

The indictment was pending in the court held for the whole district. In this cause, the court was exercising the jurisdiction which appertains to the District and Circuit Courts of the United States, under the law's of Congress. The indictment was for an offense against the United States. No law of Congress authorized the judge to thus abdicate his duties, and by an order to that effect, impose the duty of presiding at the trial, upon another judge. The practice act of the Territory, does not in this particular, apply to the court, while exercising the character of jurisdiction indicated, but is by its clear meaning, confined to cases arising under the law's of the Territory, the proceedings in which are being conducted in the courts for the county or sub-division. The power to make such order, is not found in the general provision of the practice act, recognizing and continuing in force the practice in vogue in' the courts, sitting for the district as it is termed “ upon the United States or Federal side of the court.” No such practice has ever been recognized in this Territory. On the contrary, the judges of both of the other courts exercising similar jurisdiction, have, in their courts, refused to make such an order, and for the same reason. The order would have had no binding force upon either of the other judges. The effect of it would have been, simply, to postpone indefinitely the trial of the defendant, and such may have been his purpose. No other judge could have reached the place of trial without traveling, going and returning, a distance of from fifteen hundred to two thousand miles, a large portion of the way without railroad communication. However disinclined a judge may be to preside in the trial of a person, after he has made such an affidavit, natural as the disinclination is, though the judge is conscious of no prejudice, and believe it made merely to obtain delay, the wishes of a judge cannot be allowed to influence him in the discharge of his plain duty.

No power exists in the District Courts, in cases where indictments for offenses against the United States are pending, to make an order changing the judge, or calling another judge to preside at the trial, bepause of the filing of an affidavit of prejudice against the judge regularly assigned to the district. Nor does it by reason of such order, if made, become the duty of such called judge to so preside.

There is nothing however, which precludes a judge at his convenience, from presiding in such cases, in a district other than that to which he is by law assigned, in the absence, or in case of the disability of the judge of the district.

As a question of power, it was the plain duty of the court to refuse the order'applied for.

It is but just to counsel to say, that they courteously disclaimed entertaining any views similar to those expressed in the affidavit and only urge the point in this court for the commendable purpose of endeavoring to save their client from the effects of his conviction, and upon the ground, that the power to make the order was denied by the District Court, and not because the defendant was in any wise, in fact, prejudiced by the refusal to make it.

II. The evidence objected to, consisted of certain documents from the office of the Auditor of the Treasury for the Postoffice Department — the sixth auditor. Both the originals and certified copies, duly authenticated, were offered. The originals being produced and exhibited by an officer of that department, who was a witness, and who was properly in charge of the papers, and the copies being also offered, in order, if desired, they might go into the record, it being improper to take from the custody of the witness, the originals.

The documental y evidence in question, consisted of the defendant’s quarterly returns as postmaster, the accompanying vouchers, the settlement by the Auditor of the Treasury for the Post-office Department, the statement of the account of the defendant from the books and proceedings of the Treasury, and an order appointing a person to make demand for the balance due the United States, and his return thereon endorsed.

With the exception of the last named paper, to-wit: the order and return thereon, no particular stress is laid upon the objection to the introduction of this evidence, by counsel in this court, and it might suffice to say, that each of these documents thus received, were properly proven and authenticated, and are made by the laws of Congress, competent evidence.

The object and purpose of the evidence was to show the balance against the defendant upon the adjustment of his accounts, as postmaster, by the proper accounting officer of the Treasury Department. The defendant was indicted for the embezzlement of $7,275.08, the balance remaining in his hands after an adjustment and settlement of his accounts, for moneys collected and received by him, as such postmaster, between January 1st, 1879, and June 26th, 1879, at which last named date he went out of office. Among the documents thus received, against his objection, were the defendant’s own original reports, or accounts current, duly and legally signed and verified, in which he admits a balance in his hands, at the date of his going out of office, of nearly the amount charged as embezzled, which, wfith some small vouchers, charged in his account but disallowed, as unauthorized, constitutes the amount of $7,275.08.

In the face of that sworn account by the defendant himself, thus showing an admitted balance, and in the absence of any showing whatever of any subsequent payment or settlement, any error, if any was committed, in admitting the other documents, was error without prejudice. But none appears.

Section 889, Rev. Stat., U. S., provides: “ Copies of the quarterly returns of postmasters, and of any papers pertaining to the accounts in the office of the sixth auditor, when certified * * shall be admitted as evidence in the courts of the United States in civil and criminal prosecutions, and in any civil suit in case of delinquency of any postmaster * * * a statement of the account, certified as aforesaid, shall be admitted as evidence * * ”

Section 5494, same Statute, provides: “ Upon the trial of any indictment against any person for embezzling public money under the provisions of the six preceding sections, it shall be sufficient evidence for the purpose of showing a balance against such person, to produce a transcript from the books and proceedings of the treasury, as required in civil cases. * * ”

The defendant was indicted under more than one of the “ six preceding sections ” there spoken of. These Statutes are conclusive against the objections thus made by the defendant, to this documentary evidence.

The objection the most urgently pressed in the brief of counsel for plaintiff in error, is to the introduction of evidence of demand. The documentary evidence relating thereto, consists of the order of the department, designating and appointing Thos. F. Hall, postmaster of Omaha, as the agent of the government to make the demand, the return thereto of such agent, under the provisions of section 890, U. S., Rev. Stat., and the draft accompanying such ol der. In connection with such documentary evidence, the prosecution adduced evidence of the oral admissions of the defendant, that such demand had been made by such designated agent.

The order designating the Postmaster Hall, as the authorized person to make the demand, was clearly competent. The law authorizes such appointment, and to establish a legal demand, one of the essential requisites is to show that the party making it was thereunto duly authorized. This order directly tended to prove the authority of the Agent Hall. As the objection was to the order and the return, and was not to the return alone, it was próp-erh overruled, without regard to the question whether the return thereon was competent evidence, in a criminal prosecution, or is by the terms of the Statutes, confined, as to competency, to civil suits, a question which it is not necessary now to determine.

Again; the order and the draft were proper links in the chain of evidence, in connection with the testimony of the witness Furay, of the admissions by the defendant, that such demand had been made by the Agent Hall, to explain the testimony, and show, to what such admissions applied. Moreover, it further conclusively appears in the transcript, by competent proof, that long prior to the finding of the indictment, the defendant had made away with, without authority of law, all the moneys which he was charged with embezzling, had no portiou of it left, had paid over to the government no part of it, nor had he deposited it, as required by law. Therefore demand being ineffectual, was unnecessary, to fix his criminal liability. Demand and refusal is only prima fade evidence of embezzlement under the Statute, and is not necessary to conviction, to the extent of excluding other proof.

The evidence, excluded by the District Court in the ruling complained of, consisted of certain receipts for moneys, which defendant alleged he had paid for expenses of the Deadwood postoffice, while postmaster, and also of statements of the defendant as a witness, to the effect, that his accounts were still unsettled and unadjusted, because these receipts, to the accounting officer of the government, had been disallowed, as unauthorized expenditures, but were still insisted upon by him.

In order to a correct understanding of the question arising upon this alleged error, it is necessary to give some of the facts appearing in the transcript, and examine the laws of Congress relating to the duties, powers and responsibilities of United States postmasters, of the grade to which the defendant belonged. It appears that during the time when the moneys covered by this indictment were received, to-wit: from January 1st to June 26th, 1879, the postoffiee at Deadwood was, under the law, rated as a second-class office. The salary then attached to an office of that class, was less than $3,000 and not less than $2,000 per annum, to be fixed between those sums, by the Postmaster General in his discretion, in even hundred dollars. The sum fixed by the Postmaster General to be allowed the defendant, was the highest amount allowed by law, to-wit: $2,800 per year. By the provisions of section 3860, U. S. Rev. Stat., “ the Postmaster General may allow to * * * postmasters at offices of the * * second-class, out of the surplus revenues of their offices * * * over and above the salary assigned to the office, a reasonable sum, for the necessary cost of rent, fuel, lights, furniture, stationary, printing, clerks, and necessary incidentals, to be adjusted on a satisfactory exhibit of the facts, and no such allowance shall be made except upon the order of the Postmaster General.” Under this provision, the defendant had been allowed to expend, for those purposes, the sum of $3,300 per annum, or a proportionate amount for each quarter, and the order of the Postmaster General making the allowance, and fixing the sums for each purpose, had been communicated to the defendant long prior to the receipt of the funds, for the embezzlement of which he was convicted. It was under this allowance, thus made by the Postmaster General pursuant to the provisions'of the Statute, that the defendant was authorized to make -the expenditure of any of the public funds which came to his hands. In the adjustment of his accounts, the defendant had been credited with the full proportionate amount of this allowance, and of his salary, and the balance of $7,275.08 was found due the government. Such were the facts by the defendant’s own showing. The receipts or vouchers offered by him were in excess of this allowance, in part, and a portion were for moneys claimed to have been expended by him prior to the 1st of January, 1879, including a time before the rating of his office, when the law absolutely prohibited any expenditure, at the expense of the government, beyond what had been allowed him in the adjustment of his former accounts. They had all been presented to the Auditor of the Treasury for the Postoffice Department, had been properly and legally rejected, and disallowed, as not been authorized by law, and no appeal had been taken to the comptroller from such disallowance. The defendant had been allowed, and he had deducted from the receipts of his office, all that was authorized by law, and the orders of the Postmaster General, made, in pursuance of law. There was a balance due the government from the defendant, received by him as sucli postmaster, during a period prior and up to the 1st day of January, 1879, of nearly $3,800, for which another indictment was pending, making in all about $11,000. The admission of these rejected vouchers, could have served no useful purpose in his favor. They would have constituted no defense to the indictment. Neither the Court, nor the jury, had any authority to declare theáe addítióiial alleged expenditures, either reasonable, or necessary. A branch of the Executive Department of the government, was entrusted by law with the determination of the propriety, or necessity, of such expenditures. In the exercise of a discretion, in discharging the duties imposed upon him by law, the Postmaster General had acted in the matter, had legally exercised such discretion, and discharged those duties. His action was in no wise revisable by the Court, or by the jury. To have admitted these receipts in evidence, would have been to submit to the jury for determination the question, whether such alleged expenditures were reasonable or necessary, a question which by law is to be determined by the Postmaster General, and by him only. Section 3846, Rev. Stat., U. S., provides as follows: “ Postmasters shall keep safely, without loaning, rising, depositing in an unauthorized bank, or exchanging for other funds, all public moneys collected by them, or which may come into their possession, until it is ordered by the Postmaster General to be transferred or paid out.” Section 3861, same Statute, is as follows: “ The salary of a postmaster and such other expenses of the postal service, authorized by law, as may be incurred by him, and for which appropriations have been made, may be deducted out of the receipts of his office, under the direction of the Postmaster General.”

Under the direction of the Postmaster General, the salary at the rate of $2,800 per year, and the allowances at the rate of $3,300 per year for the expenses of his office, had been deducted out of the receipts of the defendant’s office. Further deduction was, by law, without the direction of the Postmaster General, (section 3862, U. S., Rev. Stat.,) wholly invalid and unauthorized, and could not have legally been made by any accounting officer of the government, certainly not by the Court or jury.

Such receipts, or vouchers, together with the statement of the defendant, that by reason of their rejection his accounts were still unsettled, were properly excluded. The only effect of the introduction of such receipts would have been to prove that the defendant was guilty as charged, by thus unlawfully using and expending the public moneys of the United States, and they might thus have been useful to the prosecution, but the prosecution is not complaining, and the defendant cannot complain at the exclusion of evidence, the only effect of which would be to establish his guilt, unless possibly to mislead the jury. The introduction of this evidence cannot rightfully be claimed upon the ground that it had or might have had some bearing upon the question of intent, for he was presumed to know the law. He was bound to know that by law such expenditures out of the public moneys in his hands, were unauthorized, and the act itself was criminal, and made him guilty of embezzlement under the Statute. The question of intent will be further considered in connection with another assignment of error.

III. The instructions asked by defendant, and refused by the court, are as follows:

1st. “ The jury are instructed that if the accounts between the government of the United States and Richard O. Adams are unsettled, and not adjusted, there is no criminal liability, and the verdict should be not guilty.”

2d. “ They must find from the evidence, a willful and felonious intent by Richard O. Adams to embezzle the public funds of the United States, and unless that is proven to the satisfaction of the jury, the verdict should be not guilty.”

To the first of the above requests, much that has been said relating to the rejection of the offered evidence, will pertinently apply. This instruction would, under the facts in this case, have been equivalent to telling the jury that because the defendant had presented vouchers which had been disallowed by the proper accounting officers of the Treasury, as being for expenditures not authorized by law, and he afterwards persisted, and still persists in his claim to have them allowed for these reasons, and these only, he could with perfect impunity, convert to his own use make away with, and unlawfully expend, all the public moneys in his hands, and is subject to no criminal liability therefor. The absurdity of the proposition is apparent in its mere statement. A public officer cannot escape responsibility for the unlawful use or expenditure of the public moneys entrusted to him, merely because he asserts, either in good or bad faith, that their expenditure was necessary or proper. To establish such a rule would tend to subvert the government by putting it out of its power to enforce the laws relating to the collection and protection of the public funds. When a public officer takes upon himself the duties of his office, he assumes the responsibilities attached thereto, and it is at his peril that he pays out or uses any of the public funds in his hands. The criminal laws of Congress so hedge about a postmaster of the United States in his disposition of the postoffice funds belonging to the United States, that he cannot escape conviction by pretending to have done, or even having done, what he regarded was for the convenience of the patrons of his office, or the best interests of the government, in making away with the public funds. A tribunal is delegated by law to determine, within the limits prescribed by law, questions of that character. It is not permitted to the thousands of postmasters throughout the country, to pay out, in their discretion, the public funds collected by them.

This request was properly refused. The second request would no doubt be proper in a case of embezzlement of private property, or where the law was such as to admit of any discretion in the disposal of public funds. But no such discretion existed in this case. It was insisted below, and is insisted here, in counsel’s brief, that this instruction should be applied to all the counts in the indictment, and it was so asked. The indictment contains six counts. The first count charges the defendant with embezzlement under the provisions of section 4053 oi the U. S. Revised Statutes. The second count charges the defendant with embezzlement under the provisions, of section 5488. The third count charges the defendant with embezzlement under the provisions of section 5490. These sections, make the commission of the act, in the one case, and the omission to perform the duty, in the other, the crime.

A criminal intent, is generally, an essential ingredient in the commission of a crime, and proof of such intent, to the satisfaction of the jury, is necessary to a conviction. But where, as under these sections, the act or omission, is of itself made to constitute the criminal offense, knowingly and willfully doing the act, or omitting to perform the duty imposed by the law, carries with it a conclusive inference of criminal intent, and no other evidence of such intent is necessary. “ Every man is presumed to intend the necessary and legitimate consequences of what he knowingly does.” Here the defendant knew that he had expended the money for his own purposes, or- in a way not authorized by the Postmaster General. He knew that thus using it was forbidden by law, and made him guilty of embezzlement. He knew that he had failed to deposit the public moneys in his hands in the proper depository. He also knew that he was required to do so by law. When, therefore, he used the money without authority in the one case, and omitted to make the deposit in the other, he is presumed to have intended to break the law. “ And the breaking of the law is the crime. Every act necessary to constitute the crime was knowingly done, and the crime was therefore knowingly committed. Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law.” (Reynolds v. the United States, 8 Otto, 167.)

One patent fact the defendant knew — if he had paid this money for the expenses oí his office, as is the theory of the defense — and that was: that he had paid at least a portion of such alleged expenses out of the moneys received from the sale of postage stamps, and stamped envelopes, etc., and if it was all thus paid out, that a large portion of such expenses were paid out of such receipts; and he also knew, that the law absolutely forbid the payment of such expenses out of funds received from such sources, and confined the expenditure to be taken from “ the surplus revenues of his office — that is to say, the excess of box rents and commissions over and above the salary assigned to the office.” (Section 3860, U. S. Rev. Stat.)

We are not called upon to pronounce upon the good faith of these oilers, but it is worthy of remark, if it is claimed that the whole of this balance of $7,275.08 was paid out for expenses, •besides the $1,640 allowed, that it seems quite an extraordinary amount to be expended for a second-class office, in a population of the number tributary to the office in question, in a little less than six months. If the whole sum was not expended then it was immaterial whether any was paid out, only so far as to fix a guide to the Judge upon conviction in determining the amount of ^fine to be imposed ; for the embezzlement of any amount would authorize, and require, a verdict of guilty, as well as if the whole sum named in the indictment had been embezzled.

Under the case as presented to the jury, it was not error to refuse the instruction requested by defendant. Rs only office would have been to mislead the jury, and induce them to suppose that it was essential to a conviction, for the prosecution to establish, by some extrinsic evidence, a criminal intent, beyond what was to be inferred from proof of the commission of the crime.

IV. That portion of the charge as given which is complained of, consists of the following language: “ If the Court commits an error in giving you the law, there is a higher tribunal to correct it; but if .the jury commits an error, if it is a verdict'of acquittal, it is remediless. If the jury commit an error, and it is a verdict of guilty, the defendant has a remedy by appealing to the court.” If this language stood alone upon the subject, or if the case was one admitting of any doubt by a jury, although what is there said is strictly true, this court, certainly, could not have commended the use of it, but rather would be inclined to condemn it, as at least useless, if not harmful. But we are not at liberty to select a single sentence of the charge, isolate it from all other portions of the instructions, disconnect it from the case before the jury, and give such isolated sentence a construction standing alone. We must consider it with the context, and guided by the light which the case upon trial throws upon it. The jury had before been told, and they were afterwards reminded with clearness and emphasis, that they were the exclusive judges of all the facts, and were alone responsible for their finding upon the facts. That the duty of the Judge was completely fulfilled by instructing them upon the law, and that they were not to find the defendant guilty, unless they were satisfied from the evidence, of his guilt, beyond any reasonable doubt, and what constituted reasonable doubt, was correctly explained to them. Again, the case before the jury was substantially this, not only by the undisputed evidence of the prosecution, but as well by the admissions of the defendant, under oath, before them, from the witness stand: The defendant had received as postmaster, public moneys to a large amount out of which he had been allowed to retain, and had deducted, all the salary, emolu-mente, and expenses, which were allowed him under the law; that there still remained in his hands, over all these, about $11,000, of which $7,275.08 were included in the indictment before them; that he had failed to safely keep this amount, or to pay it over, or to deposit it, as required by law, or any portion of it, but had paid it all out, had used it, without authority of law, and had converted it to his own use; the only defense pretended, being, that a portion of the amount had been paid for unauthorized expenses of his office, itself constituting embezzlement. Under these circumstances, and following the case decided in this court — Territory v. Gay, May term, 1879—the District Judge would have been justified in saying to the jury, that if they believed the undisputed evidence in the case, including that of the defendant himself, it was their duty to pronounce, at least upon three of the counts, a verdict of guilty. This being the case before the jury, and these being the conceded facts, the guilt of the defendant was beyond all doubt, and the defendant could not have been unjustly prejudiced by the language complained of in the instructions.

There being no error apparent in the record, the judgment of the District Court is

Affirmed.

All of the Justices concurring.