The opinion
Simonton, J.,
(charging jury.') I will not adopt either of the requests to charge submitted to me. The section in question forbids any agent or attornej7 or other person instrumenta] in prosecuting any claim for a a pension directly or indirectly to contract for, demand, receive, or retain any greater compensation for his services or instrumentality in prosecuting a claim for pension than such as is provided in the title pertaining to pensions, — in this caso, §25. If you find that the dofendant made a contract with the pensioner under which he agreed to render his services in obtaining or securing the pension for more than $25, he has violated the section. If there were no contract, and the defendant, having rendered the service, demanded from the pensioner when she received her check, or at any time after it, more than $25 for his services or instrumentality in obtaining the pension, he has violated the section. If when she received her check the defondant went with her, and drew7 or assisted in drawing the money, and withheld or retained more than $25 of it for his services or instrumentality in obtaining the pension, he has violated the section. If the pensioner, having come into the possession of her money, gave this defendant more than $25 in consequence of some promise made by her to him, or pursuant to any contract made between her and him, or induced by any understanding or agreement, direct or indirect, express or implied, or by any legal or moral obligation whatsoever between them, either admitted by her or set up by him, and he so received the money, he has violated the section. If she gave him the money of her own free will, without any demand on his part, it not being withheld or retained by him against her wish, wholly as a gratuity, out of gratitude to him for a friendly service, not induced by the fact that a promise or understanding existed by which he should be compensated for his services; or by his setting up and insisting upon such a promise or understanding; or, in the absence of it, by his claiming some merit or desert on his part for such service; in other words, if the money was paid to him without any demand, request, urgency, or action on his part by her, of her own motion, — he has not violated the section.
It has been assumed that the defendant received from the pensioner more than $25. Both sides admit this. The district attorney has requested the court to charge you that any scheme or contrivance by which, under the guise of a loan, a mortgage, or a gift, or other dealing, the claim agent retains more than the legal fee, is a violation of this section. 1 charge you in those words, concurring fully with Judge Hammond in the case of U. S. v. Moyers, 15 Fed. Rep. 411, which has been quoted.
One more point must be noticed. The indictment alleges that the pensioner, Nellie Deas, is the lawful widow of David Deas, a soldier, etc. It appears that Nellie Deas and David Deas were both slaves in 1857. That in that year they went through the ceremony of marriage before a clergyman, and lived as husband and wile until the death of David Deas, *460 in 1869. The defendant insists that this proves that no marriage existed, as slaves could not many. Were it necessary, I would charge you that this testimony would establish a marriage. It is not necessary. On 19th December, 1865, the legislature of South Carolina declared that all colored persons who at that date were living together as husband and wife were husband and wife. 13 St. at Large, S. C. 269. If the pensioner and David Deas in 1865 were living as husband and wife, she is. his lawful widow.
The jury found the defendant guilty.