Argument for Plaintiff in Error.

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1012; Alabama v. Montague, 117 U. S. 602, 610. Such interest must be visible, demonstratable and capable of proof. Northampton v. Smith, 11 Metcalf, 390, 395; McGrath v. People, 100 Illinois, 464; Evans v. Eaton, 7 Wheat. 356; State v. Sutton, 74 Vermont, 12; Foreman v. Marianna, 43 Arkansas, 324; Taylor v. Commissioners, 88 Illinois, 526; C., B. & Q. R. R. Co. v. Kellogg, 54 Nebraska, 138; Sauls v. Freeman, 24 Florida, 209; Bowman's Case, 67 Missouri, 146.

Section 1782 is a criminal statute and is to be interpreted as such. The court should not seek to include therein anything not included unquestionably in the statute. United States v. Wiltberger, 5 Wheat. 76; United States v. Sheldon, 2 Wheat. 119; United States v. Morris, 14 Peters, 464; United States v. Clayton, 2 Dillon, 218.

There was no evidence establishing defendant's guilt as to any of the offenses charged in the indictment or of any offense whatever, and the court erred in refusing to direct a verdict of not guilty as to each count.

There was no testimony that the Senator had done anything violative of the statute in his Department or in the inconsequential supplemental talk. The testimony shows affirmatively that the charge that he tried to prevent the fraud order is not true. The letters and telegrams show that they had no reference to any fraud order.

The employment and actual services rendered by Senator Burton as general counsel had no relation to any matter charged in the indictment, and were not prohibited by § 1782, and were paid for by his monthly salary as general counsel.

The payments made by the four checks to Senator Burton were made in Washington and not in St. Louis, and the court in St. Louis had, under the Constitution, no jurisdiction of the alleged offenses based on the checks, as set forth in the sixth, seventh, eighth and ninth counts.

The four checks, when they were paid in St. Louis, belonged neither to Burton nor to the Riggs National Bank of Washington, but in the instance of each check to a subsequent in

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Argument for Plaintiff in Error.

dorsee, which was the owner of the check, and payment to such subsequent indorsee was not payment either to Burton or to the Riggs Bank. Neither the Riggs Bank nor any other bank was agent of Burton. Craigie v. Hadley, 99 N. Y. 131; Metropolitan National Bank v. Loyd, 90 N. Y. 530; Bank of Republic v. Millard, 10 Wall. 152; Thompson v. Riggs, 5 Wall. 663; Marine Bank v. Fulton Bank, 2 Wall. 252; Phænix Bank v. Risley, 111 U. S. 125; Scammon v. Kimball, 93 U. S. 362. St. Louis &c. Ry. Co. v. Johnston, 133 U. S. 566, distinguished.

The title to the check passed under commercial usage absolutely to the Riggs Bank and absolutely to each indorsee. The resolution of the New York Clearing House, June 4, 1896, had for its object to prevent indorsements "for collection" and to transfer absolute ownership. Evansville Bank v. German American Bank, 155 U. S. 556; Commercial Bank v. Armstrong, 148 U. S. 50.

If the Riggs National Bank of Washington was the agent of Burton to collect the checks, then the subsequent indorsees of said checks, if they were agents at all, were the agents of the Riggs National Bank and not of Burton. Hoover v. Wise, 91 U. S. 308, 313; Exchange Bank v. Third Nat. Bank, 112 U. S. 276, citing Van Wart v. Woolley, 3 B. & C. 439; Tradesman's Bank v. Third National Bank, 112 U. S. 293.

The court should have directed an acquittal as there was no proof of venue. Stone v. State, 105 Alabama, 60; Randolph v. State, 100 Alabama, 139; Justice v. State, 99 Alabama, 180; Childs v. State, 55 Alabama, 28; Clark v. State, 46 Alabama, 307. An indictment can be found only in that county in which the crime has been committed. Stephen, Dig. Law Crim. Proc. 47; Rex v. Jones, 6 C. & P. 137; 4 Black. Com. 303; 1 Chitty Crim. Law, 189; 2 Hale P. C. 163; 2 Hawk. P. C., Ch. 25, §§ 24, 35, 51; Const. U. S., Art. III, § 2, cl. 3, and 6th Amendment; Story on Const. § 1775; 2 Tucker, Const. 678; Callan v. Wilson, 127 U. S. 540; 12 Cyc. Law & Pro. 229, 239; Rev. Stat. § 731.

VOL. CXCVI-19

Argument for Plaintiff in Error.

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There can be no implied or constructive presence under the Constitution. United States v. Burr, 4 Cranch. Appx. 470.

The common law principle as to the local jurisdiction in respect of criminal offenses was adopted by the Constitution of the United States, substituting "State" and "State and district" for county.

The court erred in trying the defendant, a Senator of the United States, when the Senate was in session, and also, in pronouncing judgment and sentence of fine and imprisonment against him, to be executed at a time when the Senate was in session. Const. U. S., Art. I, §6; Story, Const. §§ 856-862, and authorities there cited.

This immunity from arrest is not personal, but belongs to the office of Senator for the benefit of the Government, the State of Kansas and of his constituents, and the defendant could not waive it, even if he had consented or attempted to do so. The record shows no such waiver in fact or in law, and the court had no power to try the cause while the Senate was in session.

The defendant's supposed waiver, whatever its legal effect, could, in any event, extend no further than the period during which the defendant failed to set up his constitutional immunity, and after March 29, 1904, the court had no power to pronounce the judgment and sentence of April 6, 1904, the Senate being then in session.

The proceedings involve the Constitution, or application of the Constitution, within the meaning of §5 of the act of March 3, 1891, and a writ will lie direct to this court. The trial and judgment are in conflict with the immunity of a Senator from imprisonment during the session. 2 Paterson Liberty of the Subject, 140, 188 et seq.; Rev. Stat. § 727; May's Const. Hist. II, ch. VII, 4th ed. 3, and ch. XI; 3 Stubb's Const. Hist. 538; Cooley's Const. Lim., 6th ed., 160; Jefferson's Parl. Man. §3, on Privilege; Yonge's Const. Hist. 370; Lord Campbell's Speeches, 179; 2 Hardcastle's Life, 1 Campbell, 188. As to what a defendant in a criminal prosecution may waive, see

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Argument for the United States.

Hopt v. Utah, 110 U. S. 574, 579; Thompson v. Utah, 170 U. S. 343, 353; Schick v. United States, Harlan, J.'s, dissent, 195 U. S. 65.

Evidence was improperly admitted and the trial court did not by its charge and instructions to the jury cure the error which it made in the admission of improper evidence; but, on the contrary, confirmed such error. It also erred in its additional charge to the jury after they had come back for further instructions as well as in its original charge and instructions. First, in its instructions on propositions of law, and also in depriving the defendant of his constitutional right to have the question of his guilt of the charge laid in the indictment tried and decided by the jury. United States v. Burr, Appendix 4 Cranch. 470; and Second, in coercing the jury into rendering a verdict of guilty.

It is error to instruct so that the instruction implies that the court requires a conviction. Hodges v. The State, 15 Georgia, 117, 121.

Mr. Solicitor General Hoyt for the United States:

No constitutional question is presented or was saved so as to justify direct review in this court unless the court think fit to issue certiorari.

There are four important questions in the case: (1) Was there any proceeding pending before the Post Office Department in which the United States was interested? (2) Did the accused render services with the intent to influence the Department in such proceeding, and did he receive compensation therefor? (3) Did the trial court have jurisdiction? (4) Did the accused waive his privilege as Member of Congress, and was it competent for him to do so?

I. The power of Congress to legislate, and the authority of the Postmaster General under legislation are very broad, and the Postmaster General acts well within his established powers when he institutes a fraud order inquiry. Art. I, sec. 8, cl. 8, Constitution; §§ 396, 3929, 5480, Rev. Stat.; § 44, Postal Laws

Argument for the United States.

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and Reg.; Public Clearing House v. Coyne, 194 U. S. 497; Bates & Guild Co. v. Payne, 194 U. S. 106; In re Rapier, 143 U. S. 110.

No branch of any executive department more closely affects the people than the postal service and the United States is interested in a fraud order inquiry both because its revenue and property rights are affected, and because its intangible functions and responsibilities constitute an interest within the meaning of the law. The United States is vitally interested to protect the people against a fraudulent use of the mails, and to prevent the dissemination of the "literature" of a fraudulent scheme. As to the broad scope of the Government's "interest" as parens patriæ, see United States v. Bunting, 82 Fed. Rep. 883, 884; Palmer v. Colladay, 18 D. C. App. 426; Tyner v. United States, 32 Wash. Law Rep. 258; Curley v. United States, 130 Fed. Rep. 1, 3-9.

II. Under the proved facts as to services to the Rialto Company, especially when they are regarded together and consecutively, there can be no doubt that services were rendered and compensation received in violation of the statute.

III. The last payment was made in cash to the accused at St. Louis, and that is sufficient to sustain the judgment. Claassen v. United States, 142 U. S. 140; Evans v. United States, 153 U. S. 584, 595; Goode v. United States, 159 U. S. 669; Putnam v. United States, 162 U. S. 687; Rice v. Ames, 180 U. S. 371. But the counts on the checks are good. The Government proved a custom and usage prevailing in Washington of regarding such checks as collection items, although because of a customer's good standing immediate credit might be given, such items being subject to immediate charge back if returned unpaid. The checks were not purchased by the bank; they were collected for Burton and paid to him at St. Louis. This question of purchase or collection was submitted to the jury under proper instructions. Ward v. Smith, 7 Wall. 447; Dodge v. Savings & Trust Co., 93 U. S. 379; Evansville Bank v. German American Bank, 155 U. S. 556, and cases cited;