UNITED STATES V. MISKELL.
869
unsound and so clearly against all authority that we must suppose that, if the expression referred to is susceptible of such So construction, it is the result of inadvertence or clerical misprision, and does not express the deliberate judgment of the court. The demurrer to the cross-bill and the exceptions to the answer, except so much thereof as pleads the statute of limitations in bar of a personal judgment on one note, are llustained.
UNITED STATES V. MISKELL.-
(Circuit Oourt, D. Kentucky. March, 1883.) MAKING OR USING FALSE AFFIDAVIT TO OBTAIN PAYMENT 01' CL!.W..,..8EOTIOlf
5438, REV. ST. To support a conviction under section 5438, Rev. St·· for making 01' using a false affidavit for the purpose of obtaining the payment or approval of certain claims against the government, it must be shown, not onlrthat the .affidavit was false. but also that the claim, the payment of which was sought to be obtained by thetlse of the affidavit, was false, fictitiousj or fraudulent.
Indictment.
Motion for new trial.
Geo. M. Thomg,s, Dist. Atty., for the Government. Samuel McKee; for defendant. BAXTER,
The act under which the indictmeut in this case was framed (section 5438, Rev. St.) provides that "every person who makes or causes to be made, or presents or causes to be presented, for payment or approval, to or by any officer in the civil, military, or naval service of the United States, any claim upon or against the government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent, or who, for the purpose of obtaining, or aiding to obtain, the payment or approval of such claim, makes, uses, or causes to be made or used, any false affidavit, etc., knowing the same to contain any fraudulent or fictitious statement," etc., shall be punished, etc. The indictment follows the statute. It contains one count for making and presenting, or causing to be made and presented, for payment a false, fictitious, and fraudulent claim; etc., and another c.ount for having made and used a false affidavit, etc., for the purpose of obtaining the payment of a false, fictitious, and fraudulent "Reported by J. O. Harper, Esq., of the Oincinnati bar.
J.
.
v.15,no.G-24
370
FEDERAL REPORTER.
claim, etc. Upon &: trial had, the defendant was acquitted of the first and convicted of the crime alleged in the second count; and thereupon moved for a new trial. No evidence was offered by the government upon the trial tending to show that the claim, in support of which the alleged false a.ffidavit was used, was either false, fictitious, or fraudulent. Hence we are called on to determine whether a conviction obtained for the making and using of a false affidavit, etc., to obtain payment or allowance of a claim upon or against the United States, can be sustained, without proof showing that the claim, in support of which such affidavit was made or used, was itself false, fictitious, or fraudulent. The crime created and defined by the statute and formulated in the second count of the indictment is not the making or using of a false affidavit to obtain payment of a claim upon or against the government, but it is the making or using a false affidavit, etc., for the purpose of obtaining the, paymant or approval of a falso,fictitious, orfraudulent claim, etc. In other words, the crime charged in the second count of the indictmllnt under. consideration is composed of two elements-First, a false affida:vit; and,.sccondly, the making or the using of such false affidavit to obtain the payment or allowance of a false, fictitious, or fraudulent claim. .But in this case there was no evidence tending to the false, fictitious, and fraudulent character of the claim, the payment of which defendant sought to obtain by use of the false ttffidavit referred to. The crime,. therefore, of which the defendant stands convicted was 0uly half made out; but one of the foregoing two elements which constitute it was proven, and it follows that defendant is entitled to a new trial, which awarded.
An indictment under section 5438. Rev. st., which charges thatthe accused did" unlawfully make a claim against the government of the United States," . well knowing the same to be false, etc., is insufficient. It should charge that the claim was made" /0.1' payment or app1'oval." The changes in the punctuation of the statute have altered the meaning of this Bection, and the phrase" for paY1nent o.r approval" is a part of both the first and second clauses of the sec'tidn:" U. S. v.,Ambrose, 2 FED. REP. 764. In an indictment 11 nder that section it is sufficient to charge a presentation to the "'first auditor of thetl'easury," without naming. the persoll who held such office; and the different items of an account may aU be included in one count of the indictmellt, and it is not necessary that there should be separate counts for each false item. U. S. v. Ambrose, supra. Section 5438 inclucies a false claim pre-
.ALLOY f1. BENNB'r'r.
3'l1
sented by a person as a pensioner, demanding money as a pensioner, and where the pension certificate was genuine, but beenfrauduiently'obtained. each presentation of the certificate. constituted, a distinct offense withiil the meaning of the statute. . U.S. v. 3 FED. Rm.>.492.-{Rln'.
MALLOY tI. BENNETT.
Oourt, S. D. New YO1'k. February 2l, 1883.) L A.cTIONS FOR LIBEL-NEW TRIAL-SURPRISE-ExOESSIVE D.utAGES,
ETc.
Where a new tllal is asked for on the ground of surprise, and that the palioy seeking the new trial forgot to offer certain letters in evidence. the omission to show the letters, or copies of them, is significant, and raises lUl Inference against their importance. 2. BAME-PROOP OF FALSITY 01l'&rATEHENTS. It is not necessary for the plaintiff. 1Ii a suit tor libel, to disprove the truth
of the criminal charges contained in it; but he may always. giv.e proof of the falsity of the statements in order to enhance dam,ages. It is only by such evidence that the essential character of the publication can be determined. 3. B.um-MENTAL SUFFERINGS·
.Mental SUffering is one of the elements of personal injury for which compensatiOnshould be awarded, and this, even when the injury is not malicious, but merely neglij1;ent. 4. Sum-EXEMPLARY DAMAGES-PRINOIPAL AND AGENT.
There is nothing in the law of damages, or of ,principal and agent, to justify the assumption that the principal is notUablein exemplary damages for the acts of his agent. An employer is responsible for the 'Willful as well as the negligent acts of ,JUs servants, when they are performed In. the course of the servant's employment. Actions of libel, so far as tbey Involve questions of exemplary damages, and the law of principal and agent, are controlled by the same rules as are other actions of tort. The right of a plaintUltO recover exemplary damages exists wherever a tortious injUry has been inflicted recklessly or wantonly, and it is not limited to cases where the injuryresulted from the personal malice or recklessness of the defendant. It follows that the owner of a newspaper is responsible for all the acts of omission and commission of those he employs to edit it and manage its aflairs, as he would be if personally manthe same. I. 8AME-NBw TJtIAI, m ACTIONS FOB LmEL. .
The court will not granh new trial in actions for ltbe19D tbe ground of excessive damAges, " unless the amOllnt ill so flagrantly atrociouS and extravagant as to show that the Jury must. have been actuated by passion, partiality, prejudice,.or corruption." S. SAME. .
Where it' seems evident. that. the refusal of the court to charge the jury as requested, though such refuSal be not properly subject. to all, excepton, bad the e«eet upon the jUry to render their verdict .larger than it. otherwise would have been,the court. will ·. tr4'J,.