Ballew v. United States

At the October term, 1893, of the circuit court of the United States for the Northern district of Georgia, an indictment was found against the plaintiff in error, embracing two counts; the first charging him with wrongfully withholding from a pensioner of the United States, one Lucy Burrell, part of a pension allowed and due her; and the second accusing him of demanding and receiving, as agent, a greater compensation for services in prosecuting the claim for pension than is provided by the title of the Revised Statutes pertaining to pensions.

The offenses charged in the indictment are made punishable by the final paragraph of Rev. St. § 4786, as amended by the pension appropriation act of July 4, 1884, c. 181, § 4 (23 Stat. 99).

On the trial of the case there was conflict in the testimony in many particulars as to the offense charged in the first count. The evidence tended to show that the check issued for the payment of the pensioner was received by the accused, a pension agent; that he went with the pensioner to a bank; that there, in the presence of an officer of the bank, the check was indorsed, and was presented to the paying teller, by whom the amount was paid over to or 'put in the hat' of the pensioner, who was shown to be an illiterate negro woman; that, either by the suggestion of the bank officer or of the accused, the money was deposited in the bank for account of the pensioner, a deposit slip being issued therefor. The proof, moreover, was that, immediately after this deposit, the pensioner went to an office in the vicinity, where a check for $1,887.34, one-half of the amount of the pension check, was drawn by her, she making her mark, this check being payable to the order of Hurley Ballew, a son of the accused, by whom it was immediately collected. There was conflict as to whether the accused participated in the fraud by which the drawing of the check was brought about, or whether the amount inured to his benefit. The pensioner testified that she supposed the check was drawn for $25 in favor of her son, while the drawee of the check, Hurley Ballew, testified that it was given him in payment for an insignificant service rendered in connection with the procuring of testimony during the prosecution of the claim for the pension. There was testimony on the second count tending to support the same, although as to this count there was also a conflict in the evidence.

During the course of the trial, a page from the records of the pension office, showing the issue of the pension to the pensioner named in the indictment, was offered and admitted in evidence, over the objection of the accused, to which action of the court exception was duly reserved.

One J. B. Chamblee was examined as a witness for the defendant, and exception was reserved to the exclusion of testimony given on his redirect examination. At the close of the evidence, the following instruction was requested by counsel for the accused, which was refused, and exception noted.

'When a pension check is delivered to a pensioner, and she takes the same to a bank, and has it cashed, and then deposits the said fund in a bank, and takes a deposit slip therefor, the fund loses its nature and character as pension money, and the ordinary relation of debtor and creditor exists between the pensioner and the bank; and if thereafter, by any device or in any way whatever, the pension attorney obtains a draft from her, and draws it out of her general account, he cannot be convicted of withholding under section 5485 of the Revised Statutes, and it would be your duty to acquit him on that count, if these be the facts as to that branch of the case.'

The giving of the following as part of the charge of the court was also excepted to by defendant:

'Now, the defense here is that the amount of the check received from Mr. Rule, the pension agent, really went into the possession of the pensioner in this case, and the contention for the government is that, under the facts of the case, the money really did not go into her possession in contemplation of law, and they also contend that the attorney, the defendant in this case, could not withhold the money, or any part of it, by getting the check, which is in evidence here, for eighteen hundred and odd dollars.

'Upon that branch of the case I instruct you thus: If you believe that the receipt of the pension check, under all the circumstances connected with it, and the possession of the pension check by the defendant in this case, and the taking of the check to the bank, and his accompanying the pensioner to the bank, the turning of the check into cash, and the payment of money to her, the physical possession placed in her by putting the money in her hat, the deposit of the money in the bank, and the taking of the pensioner to the office of the defendant, and the drawing of the check for eighteen hundred dollars; if you believe that this was all one transaction arranged and designed by the defendant in this case for the purpose of getting into his possession eighteen hundred dollars of the money which the pensioner received; that it was a scheme designed by him, one continuous transaction, for that purpose; and that he was a party to it, and was the beneficiary of the money received,-then that would be in law a withholding of the money under this statute, and the defendant would be guilty, and it would be your duty to convict him; but it would be necessary for you to believe that. The other rule which I gave you is true and exists in law; that is, that the money can be paid by their attorney to the pensioner, and thereafter there might be a transaction between them, which, of course, would be entirely legal and honest, by which the cash could pass from the pensioner to the attorney, but that would depend on the character of the transaction. The jury will see the facts, and I state it to you again that if all these facts or series of facts are one continuous transaction designed by the defendant, and arranged by him, as contended by the government, for the purpose of getting into his possession eighteen hundred and odd dollars of the money of the pensioner, and that he did receive it, or was the beneficiary of the receipt of it, then that would be withholding in the meaning of the statute. Now, the facts in this case are for the jury to determine. The check, signed by the pensioner, which seems to be made to Hurley Ballew, and indorsed by him, is in evidence, and you will have that out with you.'

The court instructed the jury that if they considered the defendant guilty on one count, and innocent on the other, they should so find; and, if they found him guilty on both counts, that they should return a general verdict of guilty. This last was the verdict returned. After an ineffectual effort for a new trial, the case was brought here on error.

W. C. Glenn, for plaintiff in error.

Asst. Atty. Gen. Whitney, for the United States.

Mr. Justice WHITE, after stating the case, delivered the opinion of the court.