Evening star. [volume] (Washington, D.C.) 1854-1972, 1872-02-10
The Kendig EmbexxIenent.
INTERESTING LAW POINTS INVOLVED II. 81,


This morning in the supreme .., a, no-
era, erm ,he case Oh - kendig, con.
uary OF embezzlement soa .ae ieh ol . aa-
yesf mIrisonmen' n the county iaii. was taken
to- :. ,hn ~. the court below on excep-
,sn.rDn- sing of the court in admitting a
dda Iv citing to be the appointment of Ken
xTt GENT for the Patent Office building, the
,asr 4ngton Aqueduct- Capitol extension,
all ON the nth of October, 1896, as also tram
scripts from the books of the Interior Depart
ment and Treasury Department, showing a
balance due the United States of SiI,Iso0s on
The defendant objected to the certified state
ment of the defendants account, on the grovsd,
let, that it was incompetent to be given in evil
dence, and I'd, il was insufficie with the other
evidence 70 convict the defendant. The court
refused to take il from the jury, and Sad that
ATS insufficiency as evidence must be left to
them. The defendant offered no evidence to
the jury, but asked the court to instruct the
jury that il was obligatory upon the part of the
United States TO prove that some one of the
offences set out in the Indictment had been COM
mitted within two years next preceding the find
ing ard returning said Indictment into court.
ard that If such evidence had not been given,
the jury must acquit the defendant, which i'm
strucuOn the court refused to give; but the court
dld instruct the jury that ii they believed the
evidence given TO them in the trial, they should
return a verdict against the defendant, and tn at
If they doubted il they should return a verdict
for the defendant. To this refusal to instruct
as requested the defendant excepted. motion
was also made in arrest 81 judgment and over
ruled and defendant appealed.
The appellant, Mr.. Kendig, was represented
hy Messrs. Riddle and Hnkle, who made the
following pOnts:-The defendant was indicted
under the I'd section of tie act of june II, 1866,
9th Stats, 81, ID sec I'd Brightly 16i sec. }
as a disbursng Office TO wit, disbursing agent
1t was admitted that at the time of his appoint
mont as discussing agent, the defendant was a
clerk in the Interior Department. Defendants
counsel supposes that he was appointed as sucb
agent under the third section Of the act OF
March 3, 1853, 40 Stats, 1856; LIST Br., 1857 It
is commended that disbursing agent cannot
be charged with the crime of embezzlement,
under the act of 1ss5 or any other act.
The statutes distinguish between disbursing
officers and discussing agents. The first are
created by law with specific duties, and called
disbprsing officers; while the latter are appoint
agents. l Brightly, 500, sec. 8, &c. The APP
pointment of the defendant was as a discussing
agent, and hence inadmissible as evidence 10
charge him as disbursing officer. The trans
cript OF the defendants account was disburs-
ing agent, and insufficient with the other evil
dence to convict the defendant. The court
ment, as the Indictment charged no crime. The
court erred in refusing to charge the jury as re-
quested, and in charging as the court did. a
Nessrs. Fisher and Harrington represent the
government, and they make the following
points The defendant was convicted at the
U
crime OF embe excitement. The indictment was
founded on the second section of the act of June
IA. 1sf6.-4 Stat, G.. IL is admitted bv the
appellant that. at the time OF disappointment
a. discussing agent, the defendant was a clerk
in the Department of Interior. The defendant
was appointed disbursing agent under the third
section OF the act of 1870 Stat, 211. The
words ''otficer" and 4" AGENT are convertible
and sy nOnymOus both terms being applied to
persons whose duty il is TO disDurse MONEY!
whether the person is charged with the dis
buTsement OF money by an act OF Congress or
the authority OF the head of a department
BY the act OF Congress making appropriations
for the extension of the Capitol, it il provided
that all appropriations made, or to be m ade for
that object. shall be dsbursed under such regu-
lations a. the President may describe. the ac-
counts to be audited the accounts of other
civil officers charged with disbursements, the
disbursing agent to report, Sc.-10 Stat, 1sl.
August 4, 1854, an act was passed providing that
all appropriations hereafter made for repairs or
improvements Of the public buildings. &c, in
this District, are TO be expended under the direc-
ton of the Secretary OF the Interior.-1O Stat,
5a3. By the act of July %, 1866, the Secretary
OF the Interior was authorized TO select a suit
able place for and construct a jal-14 Stat, 81.
The court charged substantially as requested.
Ii is not error in the court to refuse to charge as
requested. provided the charge embraces, sub
stantially, the prayer offered.