selves to the dry point of the law. It might | 4.
have been enough to say even less, and to
affirm the judgment on the ground that the
findings asked and refused, so far as they
were not refused because not proved, were
only grounds for further inferences, not a
special verdict establishing the defense as
matter of law. But the fuller the state-
ment should be made, the more fully it
would appear that the United States was
dealing with a matter upon which it had
all the knowledge that any one had, that it
was contracting for the use of a process
which, however much it now may be im-
pugned, the United States would not have
used when it did but for the communi-
cations of the claimant, and that it was
contracting for the process which it actually
used, a process which has revolutionized
the naval armor of the world.
Judgment affirmed.

(196 U. S. 283)

JOSEPH RALPH BURTON, Plff. in Err.,

v.

UNITED STATES.

Direct appeal from district court-criminal law-sufficiency of indictment-evidence -requested instructions.

The refusal to charge the jury in a crimi nal case, on their return into court for further instructions because of their inability to agree, that certain applicable requests to charge, given by the court at defendant's request, were material to the case then on trial, is reversible error where such requests, when originally made, were received as abstract propositions of law, which the court gave in connection with the charge, saying that he was willing to give them inasmuch as they were asked, and as they contained general propositions of law.

5. The trial court ought not to inquire of the jury in a criminal case, when brought into court because of their inability to agree, how the jury is divided, even though the scope of the question is confined to the proportions of the division, without reference to how the jury stands with respect to conviction or acquittal.

[No. 343.]

Argued November 30, December 1, 1904.
Decided January 16, 1905.

IN

N ERROR to the District Court of the United States for the Eastern District of Missouri, to review a conviction of the violation of U. S. Rev. Stat. § 1782 (U. S. Comp. Stat. 1901, p. 1212), making it a misdemeanor for a United States senator to receive compensation for services rendered before any department, in relation to any

1. A question respecting an alleged privilege of proceeding in which the United States is

freedom from arrest as a United States sena

interested. Reversed and remanded for a new trial.

See same case below, on demurrer to indictment, 131 Fed. 552.

Statement by Mr. Justice Peckham:
The plaintiff in error having been convict-

for the eastern district of Missouri of a vio

lation of the Revised Statutes of the United States, § 1782 (U. S. Comp. Stat. 1901, p. 1212), and set forth in the margin,† has

2. An indictment charges an offense under U.ed in the district court of the United States S. Rev. Stat. § 1782 (U. S. Comp. Stat. 1901, p. 1212), making it a misdemeanor for a United States senator to receive compensation for services rendered before any department, in relation to any proceedings in which the United States is interested, where it avers that the accused, being such a senator, received compensation for services rendered before the Postoffice Department for the purpose of inducing a decision favorable to his client in a fraud order inquiry pending before that Department.

8. An averment in an indictment, charging a United States senator with having received certain checks at St. Louis, Missouri, as compensation for services rendered before the Postoffice Department, in violation of U. S. Rev. Stat. § 1782 (U. S. Comp. Stat. 1901, p. 1212), and alleging the payment to him of the money thereon at that place, is not supported by evidence that the checks, drawn on a St. Louis trust company, were received by him in the city of Washington, and were by him there indorsed and deposited with a local bank, and were afterwards paid at St. Louis, and that the amount of each check was, immediately upon deposit, credited by the Washington bank to the account of defendant, who had the right to draw against the account without waiting for payment at St. Louis.

†U. S. Comp. Stat. 1901, p. 1212. Sec. 1782. No senator, representative, or del egate, 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 any compensation whatever, directly or indirectly, 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.

brought the case here directly from that | defendant on the 22d of November, 1902, court by writ of error.

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 view, and are of opinion that the statuto does not cover the case as alleged in tho indictment.

Second. Assuming that the statute applies to the facts stated in the indictment, a further question arises upon the general merits of the case, whether there was sufficient evidence of guilt to be submitted to the jury, and a majority of the court (the same justices concurring) are of opinion that there was, or are not prepared to say there was not, and the same minority dissent from that view, and are of opinion that there was no evidence whatever upon which to found a verdict of conviction.

There are, however, other questions remaining, which we now proceed to discuss on the theory that the statute covers the

that under article 3, § 2, of the Constitu- | the statute upon which this indictment was tion, 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, at 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), providing 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.

Third. The sixth, seventh, eighth, and ninth counts of the indictment aver the receipt by the defendant of the different checks described, at the city of St. Louis, in the state of Missouri, and the payment of the money thereon to the defendant at St. Louis, in that state, as compensation for services theretofore performed by the defendant for the Rialto Company. It may be assumed that, on the facts averred in these various counts in the indictment upon the checks, each of them was good. It turned out, however, on the trial that these aver ments of the place where the different checks were received and paid were not true; but, on the contrary, the evidence was wholly undisputed that each of them was received by the defendant in the city of Washington, D. C., and by him there indorsed and deposited with the Riggs National Bank, of Washington, D. C., and that they were afterwards duly paid by the Commonwealth Trust Company, at St. Louis, Missouri; that the amount of each was in each instance immediately credited by the Riggs National Bank to the account of the defendant with the bank, and the cashier testified that the defendant had the right, immediately after the credit was made, to draw out the whole, or any portion thereof, without waiting for the payment of the check at St. Louis.

There was no oral or special agreement First. The question of the construction of made between the defendant and the bank

"The Constitution of the United States confers upon the accused in every criminal case the right to be tried by an impartial jury of a state and district where the crime shall have been committed.

at the time when any one of the checks was | it on the Commonwealth Trust Company, deposited and credit given for the amount payable to the order of the accused, by mail; thereof. The defendant had an account that he received the check representing this with the bank, took each check when it ar- compensation at Washington, in the District rived, went to the bank, indorsed the check, of Columbia, and then and there indorsed which was payable to his order, and the the check, deposited it to his own credit in bank took the check, placed the amount the Riggs National Bank, at Washington; thereof to the credit of the defendant's ac- that the last-mentioned bank afterwards forcount, and nothing further was said in re- warded the check by and through its corregard to the matter. In other words, it spondents to St. Louis for payment by the was the ordinary case of the transfer or sale Commonwealth Trust Company, upon which of the check by the defendant, and the pur- it was drawn, and that the Riggs bank and chase of it by the bank, and upon its deliv- its correspondents in all this matter became ery to the bank, under the circumstances and were the agents of the accused for securstated, the title to the check passed to the ing this money, and when the money called bank, and it became the owner thereof. It for by the check was finally paid at St. was in no sense the agent of the defendant Louis, Missouri, by the trust company on for the purpose of collecting the amount of which it was drawn, it amounted to a paythe check from the trust company upon ment of that money to the accused at St. which it was drawn. From the time of the Louis, Missouri. This suggests an impordelivery of the check by the defendant to tant feature of the case, for the reason that, the bank, it became the owner of the check; unless it be true that the accused received it could have torn it up or thrown it in the the money represented by and paid on this fire or made any other use or disposition of check at St. Louis, this court would have it which it chose, and no right of defendant no jurisdiction to try the case. would have been infringed. The testimony of Mr. Brice, the cashier of the Riggs National Bank, as to the custom of the bank when a check was not paid, of charging it up against the depositor's account, did not in the least vary the legal effect of the transaction; it was simply a method pursued by the bank of exacting payment from the indorser of the check, and nothing more. There was nothing whatever in the evidence showing any agreement or understanding as to the effect of the transaction between the parties, the defendant and the bank,making it other than such as the law would imply from the facts already stated. The forwarding of the check "for collection," stated by Mr. Brice, was not a collection for defendant by the bank as his agent. It was sent forward to be paid, and the Riggs bank was its owner when sent. With reference to the jurisdiction of the court over the offense described in the sixth and following counts in the indictment, the court held that if the checks were actually received by the defendant in Washington, and the money paid to him by the bank in that city, and the title and ownership of the checks passed to the bank at that time, the court in Missouri had no jurisdiction to try the offenses set forth in those counts of the indictment already referred to. There was no question that such was the fact, and it was error to submit the matter to the jury to find some other fact not supported by any evidence. The court said:

"The government claims that the compensation referred to in this count was sent to the accused by the Rialto Grain & Securities Company, in the form of a check, drawn by

"The receipt of the money is the gist of the crime charged against the accused, and if he did not receive it in this district, in fact in St. Louis, where he is charged to have received it, he is not amenable to the law in this district, and cannot be convicted in this court on this sixth count. Accordingly, it becomes your duty to ascertain and find from the evidence what were the true relations between the accused and the Washington bank when he deposited the check in question with that bank, and what was the understanding between them as to their respective rights in relation to the check and the proceeds thereof. On this question the court charges you as follows:

"If it was the intent and understanding of the Washington bank and the accused, at the time the latter deposited the check in question with the former, that the bank should forward the same in the usual course, by and through its correspondents to St. Louis, for payment, and that in so doing it and its correspondents should act only as the agent of the accused for that purpose, then the final payment by the Commonwealth Trust Company, at St. Louis, of the check to the correspondents of the Washington bank, would amount in law to a payment in St. Louis, as charged in the sixth count, of the amount of the check to the accused. If, on the contrary, it was the understanding and intent of the Washington bank and the accused at the time the