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Failure

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Solicitor

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of disbursing officer account-Duty thereupon of Auditor

Treasury. SEC. 3633, as amended by section 4, act of July 31, 1894·(28 Stat., 162). Whenever any officer employed in the civil, military, or naval service of the Gov. ernment, to disburse the public money appropriated for those branches of the public service, respectively, fails to render his accounts, or to pay over, in the manner and in the times required by law, or by the regu. lations of the Department to which he is accountable, any sum of money remaining in his hands, it shall be the duty of the proper Auditor, as the case may be, who shall be charged with the revision of the accounts of such officer, to cause to be stated and certified the account of such delinquent officer to the Solicitor of the Treasury, who is hereby authorized and required immediately to proceed against such delinquent officer, in the manner directed in the six preceding sections.

The six preceding sections referred to, viz, sections 3627, 3628, 3629, 3630, 3631, 3632, relate to proceedings by warrant of distress, not usually resorted to.

Rights of United States reserved.

SEC. 3638. Nothing contained in the provisions of this Title relating to distress-warrants shall be construed to take away or impair any right or remedy which the United States might have, by law, for the recovery of taxes, debts, or demands.

Duties of officers as custodians of public moneys to safely keep, etc.

SEC. 3639. The Treasurer of the United States, all assistant treasurers, and those performing the duties of assistant treasurer, all collectors of the customs, all surveyors of the customs, acting also as collectors, all receivers of public moneys at the several land offices, all postmasters, and all public officers of whatsoever character, are required to keep safely, without loaning, using, depositing in banks, or exchanging for other funds than as specially allowed by law, all the public money collected by them, or otherwise at any time placed in their possession and custody, till the same is ordered, by the proper Department or officer of the Government, to be transferred or paid out; and when such orders for transfer or payment are received, faithfully and promptly to make the same as directed, and to do and perform all other duties as fiscal agents of the Government which may be imposed by any law, or by any regulation of the Treasury Department made in conformity to law.

The President is authorized, if in his opinion the interest of the United States requires the same, to regulate and increase the sum for which bonds are, or may be required by law, of all district attorneys, collectors of customs, naval officers, and surveyors of customs, navy agents, receivers and registers of public lands, paymasters in the Army, commissary-general, and by all other officers employed in the disbursement of the public moneys, under the direction of the War or Navy Departments.

See section 5497, p. 383.

Entry to be kept of sums received and of transfer and payment. SEC. 3643. All persons charged by law with the safe-keeping, transfer, and disbursement of the public moneys, other than those connected with the Post-Office Department, are required to keep an accurate entry of each sum received and of each payment or transfer.

Embezzlemont: Penalty for requiring receipt for larger sum than that actually paid. SEC. 5483. Every officer charged with the payment of any of the appropriations made by any act of Congress, who pays to any clerk, or other employé of the United States, a sum less than that provided by law, and requires such employé to receipt or give a voucher for an amount greater than that actually paid to and received by him, is guilty of embezzlement, and sball be fined in double the amount so withheld from any employé of the Government, and shall be imprisoned at hard labor for the term of two years. Embezzlement: Penalty for disbursing officer unlawfully depositing, converting, loaning, or

transferring public money. SEC. 5488. Every disbursing officer of the United States who deposits any public money intrusted to him in any place or in any manner, except as authorized by law, or converts to his own use in any way whatever, or loans with or without interest, or for any purpose not prescribed by law withdraws from the Treasurer or any assistant treasurer, or any authorized depository, or for any purpose not prescribed by law transfers or applies any portion of the public money intrusted to him, is, in every such act, deened guilty of an embezzlement of the money so deposited, converted, loaned, withdrawn, transferred, or applied; and shall be punished by imprisonment with hard labor for a term not less than one year nor more than ten years, or by a fine of not more than the amonnt embezzled or less than one thousand dollars, or by both such fine and imprisonment.

See sections 3620, p. 377, and 5497, p. 383.

Section 5489, p. 382, provides penalty for failure of Treasurer of United States, assistant treasurer, or any public depositary to safely keep moneys deposited.

Embezzlement: Penalty for custodians of public money failing to safely keep, ete. SEC. 5490. Every officer or other person charged by any act of Congress with the safe-keeping of the public moneys, who fails to safely keep the same, without loaning, using, converting to his own use, depositing in banks, or exchanging for other funds than as specially allowed by law, shall be guilty of embezzlement of the money so loaned, used, converted, deposited, or exchanged; and shall be imprisoned not less than six months nor more than ten years, and fined in a sum equal to the amount of money so embezzled.

Collector or receiver of public money excused from paying if prevented by act of God or the public enemy. (United States v. Thomas, 15 Wall., 337.)

Felonious taking or carrying away of public moneys in the custody of a receiver without fault or negligence on his part, not any defense on the bond. (United States v. Prescott, 3 How., 578; also United States v. Dashiell, 4 Wall., 182; Boyden v. United States, 13 Wall., 17.)

Embezzlement: Penalty for failure of officer or agent to render accounts, etc. SEC, 5491. Every officer or agent of the United States who, having received public money which he is not authorized to retain as salary, pay, or emolument, fails to render his accounts for the same as provided by law, shall be deemed guilty of embezzlement, and shall be fined in a sum equal to the amount of the money embezzled, and shall be imprisoned not less than six months nor more than ten years. Failure to make reports. See section 1780, p. 384.

Embezzlement: Penalty for failure to deposit as required. SEC. 5492. Every person who, having moneys of the United States in his hands or possession, fails to make deposit of the same with the Treasurer, or some assistant treasurer, or some public depositary of the United States, when required so to do by the Secretary of the Treasury, or the head of any other proper Department, or by the accounting officers of the Treasury, shall be deemed guilty of embezzlement thereof, and shall be imprisoned not less than six months uor more than ten years, and fined in a sum equal to the amount of money embezzled.

Record evidence of embezzlement.

SEC. 5494. 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, under the provisions for the settlement of accounts between the United States and receivers of public money.

Refusal to pay any draft, etc., prima facie evidence of embezzlement.

SEC. 5495. The refusal of any person, whether in or out of office, charged with the safe-keeping, transfer, or disbursement of the public money, to pay any draft, order, or warrant, drawn upon him by the proper accounting officer of the Treasury, for any public money in his hands belonging

to the United States, no matter in what capacity the same may have been received, or may be held, or to transfer or disburse any such money promptly, upon the legal requirement of any authorized officer, shall be deemed, upon the trial of any indictment against such person for embezzlement, as prima-facie evidence of such embezzlement.

Evidence of conversion.

SEC, 5496. If any officer charged with the disbursement of the pub. lic moneys, accepts, receives, or transmits to the Treasury Department to be allowed in his favor, any receipt or voucher from a creditor of the United States, without having paid to such creditor in such funds as the officer received for disbursement, or in such funds as he may be authorized by law to take in exchange, the full amount specified in such receipt or voucher, every such act is an act of conversion, by such officer, to his own use, of the amount specified in such receipt or voucher. Unlawfully receiving, etc., to be embezzlement-Embezzlement by internal-revenue officer or

employé and others. SEC. 5497, as amended by act of February 3, 1879 (20 Stat., 280). Every banker, broker, or other person not an authorized depositary of public moneys, who knowingly receives from any disbursing officer, or collector of in. ternal revenue, or other agent of the United States, any public money on deposit, or by way of loan or accommodation, with or without interest, or otherwise than in payment of a debt against the United States, or who uses, transfers, converts, appropriates, or applies any portion of the public money for any purpose not prescribed by law, and every president, cashier, teller, director, or other officer of any bank or banking association, who violates any of the provisions of this section, is guilty of an act of embezzlement of the public money so deposited, loaned, transferred, used, converted, appropriated, or applied, and shall be punished as prescribed in section fifty-four hundred and eighty-eight. And any officer connected with, or employed in, the internal-revenue service of the United States, and any assistant of such officer, who shall embezzle or wrongfully convert to his own use any money or other property of the United States, and any officer of the United States, or any assistant of such officer, who shall embezzle or wrongfully convert to his own use any money or property which may have come into his possession or under his control in the execution of such office or employment, or under color or claim of authority as such officer or assistant, whether the same shall be the money or property of the United States or of some other person or party, shall, where the offense is not otherwise punishable by some statute of the United States, be punished by a fine equal to the value of the money and property thus embezzled or converted, or by imprisonment not less than three months nor more than ten years, or by both such fine and imprisonment.

See section 3639, p. 381.

Application of laws imposing punishment on internal-revenue officers to certain other classes of persons. (3 3169a, p. 77.).

Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted, or into whose hands it has lawfully come; and it differs from larceny in the fact that the original taking of the property was lawful, or with the consent of the owner, while in larceny the felonious intent'must have existed at the time of the taking. (Moore v. United States, 160 U. S., 268.)

Penalty for clerks and other officers of United States courts failing to deposit moneys. SEC. 5504. Every clerk or other officer of a court of the United States, who fails forth with to deposit any money belonging in the registry of the court, or hereafter paid into court or received by the officers thereof, with the Treasurer, assistant Treasurer, or a designated depositary of the United States, in the name and to the credit of such court, or who retains or converts to his own use or to the use of another any such money, is guilty of embezzlement, and shall be punished by fine not less than five hundred dollars, and not more than the amount embezzled, or by imprisonment not less than one year por more than ten years, or by both such fine and imprisonment; but nothing herein shall be held to prevent the delivery of any such money upon security, according to agreement, of parties under the direction of the court.

Sections 3616, 3617, p. 377.

Penalty for receiving money belonging in the registry of the court, SEC. 5505. Every person who knowingly receives, from a clerk or other officer of a court of the United States, any money belonging in the registry of such court as a deposit, loan, or otherwise, is guilty of embezzlement, and shall be punished as prescribed in the preceding section.

Penalty for failure to make reports. SEC. 1780. Every officer who neglects or refuses to make any return or report which he is required to make at stated times by any act of Congress or regulation of the Department of the Treasury, other than his accounts, within the time prescribed by such act or regulation, shall be fined not more than one thousand dollars and not less than one hun. dred.

Disbursing officers forbidden to trade in public funds or property. SEC. 1788. Every officer of the United States concerned in the disbursement of the revenues thereof who carries on any trade or business in the funds or debts of the United States, or of any State, or in any public property of either, shall be deemed guilty of a misdemeanor, and punished by a fine of three thousand dollars, and shall, upon conviction, be removed from office, and forever thereafter be incapable of holding any office under the United States.

Collecting oficers forbidden to trade in public property.

SEC. 1789. Every officer concerned in the collection of the revenues of the United States who carries on any trade or business in any public property of the United States, or of any State, shall be deemed guilty of a misdemeanor, and punished by a fine of three thousand dollars, and shall, upon conviction, be removed from office, and forever thereafter be incapable of holding any office under the United States.

Certain business forbidden to clerks in Treasury Department. (Q 244, p. 405.)

Transcripts from books, etc., of the Treasury, to be evidence in suits against delinquents.

SEC. 886. When suit is brought in any case of delinquency of a revenue officer, or other person accountable for public money, a transcript from the books and proceedings of the Treasury Department, certified by the Register and authenticated under the seal of the Department, or, when the suit involves the accounts of the War or Navy Departments, certified by the auditors respectively charged with the examination of those accounts, and authenticated under the seal of the Treasury Department, shall be admitted as evidence, and the court try. ing the cause shall be authorized to grant judgment and award execution accordingly. And all copies of bonds, contracts, or other papers relating to, or connected with, the settlement of any account between the United States and an individual, when certified by the Register, or by such Auditor, as the case may be, to be true copies of the originals on file, and authenticated under the seal of the Department, may be annexed to such transcripts, and shall have equal validity, and be entitled to the same degree of credit which would be due to the original papers if produced and authenticated in court: Provided, That where suit is brought upon a bond or other sealed instrument, and the defendant pleads “non est factum,” or makes his motion to the court, verifying such plea or motion by his oath, the court may tike the same into consideration, and, if it appears to be necessary for the attainment of justice, may require the production of the original bond, contract, or other paper specified in such affidavit.

Soule v. United States (100 U. S. (10 Otto), 8; 26 Int. Rev. R4c., 4); United
States v. Hunt (105 U. S. (15 Otto), 183; 28 Int. Rev. Rec., 134)

The form of certificate proper to be used under section 886 is discussed by
Mr. Justice Harlan in United States v. Pinson (102 U. S., 548; 27 Int. Rev.
Rec., 62).

The transcripts from the books and proceedings of the Department of the Treasury and the copies of bonds, contracts, and other papers provided for in section eight hundred and eighty-six of the Revised Statutes shall hereafter be certified by the Secretary or an Assistant Secretary of the Treasury under the seal of the Department ($ 10, act of March 2, 1895, (28 Stat., 809.)]

Section 886 applies only to certifying transcripts from the books and proceedings of the Treasury Department and copies of bonds, contracts, or other papers relating to or connected with the settlement of an account when suit is brought in any case of delinquency of a revenue officer or other person accountable for public money,

All other copies of books, records, papers, or documents should be certified under section 882, R. S., p. 364. (Department Circular No. 100, issued July 21, 1897.)

Transcripts from books, etc., of the Treasury in indictments for embezzlement of public moneys.

SEC. 887. Upon the trial of any indictment against any person for embezzling public moneys, it shall be sufficient evidence, for the purpose of showing a balance against such person, to produce a transcript

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