552
FEDERAL REPORTER,
vol. 45.
435. Possibly Wis. 462;' Hiles v. La Flesh, 59 Wis. 465, 18 N. W. the liberality in the construction of pleading under the Code has been stretched beyond reasonable limits, and has tended to produce lack of precision in statement, anJ in orderly arrangement of the facts. But the remedy is foreign to this court. The· question argued at the bar of the personal liability of the corporators failing, any subscription to stock has not been considered. It does not directly arise upon the pleading. The complaint proceeds upon the postulate that there is lhibility under the statute and for the causes therein provided. It treats the defendants as shareholders, and avers no failure of stock subscription. The demurrer will be overruled. '
UNITED STATEs
v.
ALBERT.
(Circuit Court, N. D. F£or·ida. 1, FORC<ERY-INDICTMENT-EvIDENCE.
17,1891.)
Under Rev. St, U. 'S. § 5431, providing for the punishment of anyone who shall pass, utter, publish, or sell any falsely made, forged, counterfeited, or altered oblig-ation or other security of. the United States, and Id. § 5413, defining an obligation or other security of the United States to mean, among other things, checks or drafts for money drawn by or upon authorized officers of the United States, an indictment. charging that defendant did willfUlly, knowingly, and fraudulently utter and publish as true a certain false, forged, and altered United States treasury warrant, with intent thereby to defraud the United States, then and there knowing the same to be false,forged, and altered, adequately states an offense against the United 8tates, and miJlor defects therein will be cured by verdict.
2. SAME-ALTERIKO PEKSION bHECK.
An indictment which charges that a genuine pension check drawn by an authorized officer of the United States on an assistant treasurer, directing the payment of money, was altered and forged by the name of the payee being forged and fl'audulently placed thereon as his indorsement, and that defendant knowingly and fralldulently uttered and published it as true, with intent thereby to defraud the United States, does not state an offense within Rev. St. U. S. § 5431, becanse such an instrument is not "an obligation or other security of the United States;" nor within Id. § 5421, because it does not sufficiently describe any falsely made, altered, forged, or counterfeited writiugfor the purpose of obtaining or receiving, 0[' to enable any otb.er person Wobtain or receive, directly or indirectly, from the United States or their officers, any sum of money; nor within ld. § 5418, because it does uot sufficiently describe any altered, forged, or counterfeited writing, for the purpose of defraudiug the United States. Under au indictment charging defendant with uttering and publishing a certain forged, and altered United States treasury warrant, evidence that defendant negotiated a genuine check drawn by an authorized officer of the United States upon an assistant treasurer, payment of money, upon which there was the forged indorsement of the name of the payee, is insufficient to sustain a Vb diet of g-uilty.
3. SAME-EvIDENCE-FoROED INDORSEMENT 01/ TREASURY WARRANT. -
·At Law. Indictment for forgery. J. M. Stripling, U. S. Dist. Atty. II. Bisbee, for defendant.
On motion for new trial.
PARDEJ<::, J. The defendant was tried and convicted under an indictnient of which the following is a copy of the material portion:
UNITED STArES
'/J.
"Did then and there willfully. knowingly. and fraudulently utter and publish as true a certain false, forged, and altered United States treasury warrant, with intent thereby to defraud the United States, he, the said J. W. Albert. then and there knowing the same to be false and forged and altered. which said treasury warrant. with the indorsements thereon, except the printed notice and other parts which are mutilated, and to the grand jurors unintelligible. is in the words and figures following: United Sta.tes "'No. 956,140. S "'CHICAGO, ILL.· Dec. 19th. 1888. g Agency for "'The Assistant Treasltrer of the United States, .... :s Ohicago. Ill.: Department of "'Pay to the order of William H. Chaddock forty- Il:I " $ '" the Int"r1or. five 00/100 dollars-$45. ;8 U "'M. A. MULLIGAN. Eo< Paying Penelon. "'U. S. Pension Agent.' -"Which said warrant. except the printed notice, which is mutilated, and other parts which are unintelligible to the grand jurors, is indorsed as follows: 'WiUiamH. Chaddock. Payee. W. R. Moore. Agt.Pay H. R. Symonds & Co. for oollection for account of the National Bank of Columbus. Ga. Goo. W. DILL;J:NGHAM, Cashier. GEO. W. DILLINGHAM, Casnr.'-the remainder of the written and printed matter on said warrant being unintelligible to.the grand jurors, contrary to the form of the statute in such case made and vided, and against the peace and dignity of the· United States. And the grand jurors aforesaid, upon their oaths aforesaid. do further present that heretofore; to-wit. on the 19th day of December, A. D. 1888, a certain ordet for the sum. of forty-five dollars was made and signed bY M. A. Mulligan. U. S. pension whereby the assistant treasurer of the United States at Chicago, Ill·· was reqUired and directed to pay to the order of William H. Ohaddock the aforesaid sum of forty-five dollars; that the aforesaid order was afterwards falsely and fraudulently altered and forged by the name of the said William H. Chaddock. being falsely and fraUdulently forged, placed thereon as his indorsement; that afterwards. to-wit. on the 24th day of December. A. D.1888. one .T.W. Albert. in the county of Gadsden. within the district aforesaid, and within the jUl'isdiction of this court, did then· and there willfully, knOWingly, and fraudulently utter and pUblish as true the aforesaid lent. false. forged, and altered order, then and there well knowing the same to be fraudulent, false. forged. and altered, as aforesaid, with intent thereby to defraud the United States, which said order, with the indorsements thereon, except such parts thereof as are unintelligible to the grand jurors. is in the words and figures following, to-wit: United Sta1iell .. ·No. 956.140. -:: e -'CmOAGO, ILL., Dec. 19, 1888. ;:;10. a!... AgeDey for "'The Assistant Treasurer of the United States. Ohi.... :s til cago, Ill.: Department of . "'Pay to the order of William H. Chaddock forty-five " $'" the Interior. 00/100. dollars-$45. :a U "·M. A. MULLIGAN. Eo< Paying PeneloDA. "'U. S. Pension Agent.' "Said oroer.except the printed notice which is mutilated. and other parta which are unintelligible to the grand jurors. is indorsed as follows: 'WiIliam H. Chaddock, Payee. W. R. Moore. Agt. Pay H. R. Symonds & Co. for collection for account of the National Bank of Columbus. Ga. Goo. W. DILLINGHAM,Cashier. GEO. W.DILLINGHAM. Cashier;' the remainder of the written and printed matter on said warrant unintelligible to the graDd jurors."
=
FEDERAl.o REPOR'rER,
Yol.45..
:,,'fhejuryhaving found a genera! 'verdict of "guilty as charged," the has filed a'consolidared'Ifiotion in arrest of judgment and for grounds,; h'tit BlibstantirHlyas follows:' (1) That ,no States"nor any off(;lnse Pllpis1:lable under any oUhe laws oOheUnited States. (2) That the indictment, in its clu\rges is vague, indefinite, and repugnant, to sllch an extent that no sentence can be imposedionah:El\terdict rendered under any statute of the United States. (3) Betiause of alleged errors on the trial of the case in regard to the admission of evidence. Th:efir§t cOlint that the defendantutter and publish as true a forged, a,od,altered United States treasury warrant, with intent thllrebY'to the, Upited States, he, th,e said Albert, ,tllen and there knowi,nstbe sa,ine. tobe,false;, .f!>fged" and altered." ,' ' "Did
-Whichsaidtteasury,'Warrant, ill described as an order or check drawn by a United"Siji.tes pension agent ,upon the assistant treasurer of the thepaYIP,$nt,o,f of , 5413 ()f an obhgl\Wmor secunty of ,the United, Stl\w&, among. otQer: things, to mean checks drafts for monElY drawnby.Qrupon authorized officers of the United States, and section 5.431, Rev. St., provides'for' the punishment of" anyone who shall pass, or concealed with like publish, titter,o;t sell, intent, any falsely or altered' obligation or otger security of the UniteqStates." Ex#tly why charged in the the in4ictment does not come llndersectiOll 5431 is defects, which not apparent. . It seems to be clear that, except for are probably Cttted by verdict. the first count of the indictment includes an offense agaillstthe Ubiied:'States punishable by the law of the United States. . ' .. ' ' , The second,count qfthe indictment charges tllat a genuine order or pension check, is!lued by an anthorized officer of the United States, whereby the assistant treasurer of the United States at Chicago, .Ill. , was required and 'directed to pay to the order ofWilliam H. Chaddock the sum of $45, was afterwards "falsely and fraudulently altered and forged by the name of the said H. Chaddock being falsely and fraudulently forged, his That the defendant willfully, knowthe aforesaid fraudingly, and fraudulently did utter atld publish as, then and'there well knowing the .ulent"Jalse.fQrged, and same to be falsely and fraudulently altered, as ll-foresaid,with the intent thereby todeftaud the United States. The offense attempted to be,described 'by this count is the utterance of a forged and" counterfeited indorsement of the' payee's rUllne ,'upon' a genuine pension· check or order draWn byanauthorized'{)fficer'ofthe United States;' ' I t is in 'this law' of the States which makes all offense of couJ!lterfeitin'g'tl1e of,a pension check, .orfotfra.udulen:U3 uttering such forgedind,orsement upon a pension check. In the circuit court of the United States, .so far
,UNITED STATES V. ALBERT.
555'
as'the cases have been brought to our attention,thereseems to be a diversity of views with regard to this question. In the district court Minnesota, .in 1874, where it was sought to maintain an indictment for such an offense under the first section :ofthe act of congress approved March 3, 1823, (3 S1. at Large, p. 771,) noW section 5421 of the Revised Statutes, it was contended that the indorsement charged as forged was within ,the term "or other writing," mentioned in said statute; but the court held: "The words' or other writing, ' are found in connection with a <,:lass of instruments, as a deed, power of attorney, order, receipt," etc., and .refer to other instruments not specifically enumerated .in the section. In other words, the statute was considered as restricted to other writings of the same nature as those specifically mentioned, and the indictment was quashed. In the western district of Tennessee, in the case of U. S. v. Jolly, 37 Fed. Rep. 108, the forgery of an indorsement upon a treasury warrant was held to be a forgery of the warrant itself, and punishable under section 5414 of the Revised Statutes, which declares the punishment for forging or counterfeiting United States obligations or securities. The judge said: . "The next objection is that the indictment is only for the forgery of an indorsement upon the pos\;--office wal'l'ant. which is not within the Hevised Statutes, (section 5414,) but is at most only a common-law or state offense, of. which this court has no jurisdiction. This is a very narrow view of the statute, and trims it todimensions that would very materially impair its usefulness, and leave tbeobligations and securities of the UniledStates at the mt-rcy of forgers and counterfeiters. I do not comprehend why the name of the payee is not as' much a part of the instrument as that of him who, in behalf of the United States, signs the warrant or check. ... ... ... The very fact that the warrant Is made payaule' to order.' ralhPr than' to bearer. ' when it pass by delivery, like a bank-note,showl! that the practice of so writing them is intended to bring the indorsement within the prolection of t1H' law against forgery. It constitutes about all the value there is in so writing them. and the writing of ihe name of the payee falsely and fraUdulently on the lJack is just as IDnch a forgery of tim instrument as any other false writing concerning it would be. It is in every legal sense a part of the iIDltrumentitBdf." Section 4765 of the Revised Statutes provides as follows: propel'1y executed,and the "Sec. 4165. V"pqn the receipt of such identity of the penl!ioner beirlg .established and proved in the mannt'r presenbed by the secretary of the interior, the agent for the payment of pensions shall immediately draw his check on the propt'l" assistant treasurer or designated dt'positary of the United titates for the amount due such pensioner, payable to his Qrder, and transmit the same by mail, directed to the address entitledtheretoj bllt any pensioner ,may be reqUired, if of the thought propel by the commissioner of pensions, to appear persunai(y, and l"8Ceive his penlllon." . , -From ,whichjt is seen that the law authorizes a pension agent to draw his cheCk 'on the proper "assistant treasurer or designated depositary of the United States" for the amount due a pensioner, and payable to his order. WheresuQha,(jheck is drawn, whenissaid check complete? U become an instrument upon which the assistant treasurer canpay? :aefo:l.'eindorsement by the payee the check authorizes the
--
... _ . _ . _ - -
556,
paymeIit·of no money, and no money could be rightfully paid on it. The inference is strong that the check, issued and made payable to the order of the pensioner, is not a completed instrument:until the pensioner has indorsed it. If the pensioner's indorsement is a part of the instrument, and it be forged, why does not the whole instrument become a forged and counterfeited instrument? On the other hand, it is to be noticed that March 1, 1889, ex post facto for this case,congress enacted that a check or checks drawn by a pension agent in payment of pension due and mailed by him to the address of the pensioner shall constitute payment within the meaning of Rev. St. § 4765, in the event of the death of a pensioner subsequent to the mailing, and before the receipt, df said check. And in Rex v. Arscott, 6 Car. & P. 408, it was decided that the forgery. of payee's indorsement on bill of exchange did not constitutea forged bill of exchange. Authorities on this line can probably be multiplied. Section 5421, originally found in statute of 1823, prov.ides-First, for the forging and counterfeiting of any "deed, power of attorney, order, oertificate',' receipt, or other writing for the purpose of obtaining or receiving, or of enabling any person, either directly or indirectly, to obtai ll or receive, from the United States, or any of their officers or agents, any sum of money;" second, for uttering or publishing as true "any such false, forged; altered, or counterfeited deed, power of atrorney, order, oertificate, receipt, or other writing, withintent to defraud the United States, knowing the same to be false, altered, forged, or c.ounterfeited. " The indorsement of the name of the payee upon a pension check is a writing in the nature of an order, as well as in the nature of a receipt. It is an order to the assistant treasurer to pay the contents of the check to the indorsee; and without which no payment can properly be made upon the check. It is a writing which, with the check, constitutes, in the 411nds of an assistant treasurer who has paid the contents of the check, a receipt or voucher good against the United States, as well as against the payee. It would seem, therefore, clear that if section 5421 is restricted to "other writings" of like kind and nature, then the forgery of the payee's indorsement upon a genuine pension check would be a writing or instrument clearly embraced within the words "other writing," mentioned in the statute, and be fully within the scope and purview of the statute. Section 5418 of the Revised Statutes, first enacted in. 1866, (14 St. p. 12,) provides: "Every person who falsely makes, alters, forges, or counterfeits any bid. proposal, guaranty, official bond, public record, affidavit, or other Writing, for the purpose of defrauding the United States, or utters or pUQlishes as true any such false, forged, altered, or counterfeited bid, proposal, guaranty, official bond, public record. affidavit, or other writing, for such purpose. knowbig the same to be false, forged, altered, or Counterfeited," etc., ..shall be punished," etc·
. In the case of U. S. v. Barney, 5 Blatchf. 294. it was held that the orime of forg.ery. denounced in the first and second sections of the statute of 1823, section 1 (now section 542,1. of the Revised Statutes) was confined
UNITED STATES f1. ALBERT.
557
to instrnments designed for the purpose of obtaining money from the United States. And in U. S. v. Lawrence, 13 Blatchf. 211, it was said that the above section (5418) was enacted in coosequence of the decision in U. S. v. Barney, from which it may be inferred that the section was intended to punish the crime of forgery of instruments designed for the purpose of defrauding the United States otherwise than by obtaining money directly from the United States, or any of its agents or officers. We conclude that section 5431 was intended to and does cover the offense of "uttering forged obligations or securities of the United States;" that section 5421 was intended to cover, and does cover, the offense of "uttering any forged writing, made for the purpose of obtaining or receiving, or enabling any other person, either directly or indirectly, to receive, from the United States, or of any of their officers or agents, any sum of money;" that section 5418 was intended to cover, and doe!,! cover,tbe offense of "uttering or publishing as true any false, forged, or counterfeited writing, intended for the purpose of defrauding the United States otherwise than by directly or indirectly obtaining money from the United States, or any of their officers." It seems to us that section 5421 is the section under which the de:fendant in this case should have been prosecuted for the matters cootained in the second count of the indictment. However that may be, we conclude that the said second count charges the issuance of a genuineorder for the sum of $45, made and signed by M. A. Mulligan, United States pension agent, whereby the assistant treasurer of the United States at Chicago, Ill., was required and directed to pay to the order of WilliamH. Chaddock the aforesaid sum of $45; that the aforesaid order was afterwards falsely and fraudulently altered and forged by the name of the said William H. Chaddock being falsely and fraudulently placed thereon as. his indorsement; and that afterwards, to-wit, the said Albert did utter and publish the same; and that this count cannot be sustained under section 5431, because it does not sufficiently describe any falsely made, counterfeited, or altered obligation Or other security of the United States; nor under section 5421, because it does not sufficiently describe any falsely made, altered, forged, or counterfeited writing for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive, from the United States, or any of their officers or agents, any sum of moneYi nor under section 5418, because it does not sufficiently describe any altered, forged, or counterfeited writing, for the purpose of defrauding the Unite(), States. The said count is undoubtedly deficient in other respects, and is open to criticism for vagueness, uncertainty, and repugnancy. On the trial of the case, the first count of the indictment was without evidence to sustain it, except by the proof of a genuine check by an authorized agent of the United States upon an assistant treasurer ror the payment of pension money, upon which was a forged writing placed,tqwit, the name of the payee. In our opinion this evidence is not sufficient to sustain a verdict upon this connt. On the whole case, we conclude the first count of the indictment to be good after verdict, the see-
_.
.. _ _
n
_
558
n;DEJML REPORTER,
vol. 4.5.
. pd to be bad, and Q conviction on the first count is contrary to ..' , " " ' the evidence. The, motion in arrest Qf Judgment will be denied, and the moti,on for a ,llmv trial granted.
'SWAYNE, J.,
UNITED STATES ". GRIMM. (Ci.rcui.t Co'l,lh"t, li). D. Mi880'lllli. E. D.
Maroh 81, 1891.)
1.
t.
The offense of mailing a letter containing information where or bow obscene pietares., /lte·· may .be procured, created IIY Rev. St. U. S. § 3893, is complete wben tbe letter is deposited, and ,an indictment tberefor is not insufficient because it fails to allelte that the letter actually oonveyed'the information to apartioular person or persons. S,UdE.,
PIOTURES-INDIOTMENT.
Thougb an indictment und£r Rev. Bt. U. S. § 3898, obarging the mailing of a letter containing information concerning obscene pictures, would be sufficient if it fo1tb,e of, the statl:\te. if it goes further, and sets out the language of the letters, whiCh do not on their fa(,'8 purport to convey such information, without also setting out tbe other extrinsic facts upon '\Iv bieb tile government relies, the allegations are repugnant, and an objeqtio,n on the grounel of uncertainty will be '
' ' '
.
,
'
Theclatise of section 3893, as amp,ndedSeptember 26, 1888, under which the indictment was framed, is in substance as follows: " "Ever1written or card, lettf'r. ... II< ... or not,ce of any 'kind. giving information, <'Iireclly or indirectly. where or how. or of whom. or by whatml'ans an "obscene. lewd. or lascivious book ... ... ... or picture, **, 11<, may be obtailledor made.· ... ... are hereby declared non-maillllatl;er"and shalt AOt ·be conveyedtin the mails:t! and any lwrson "who .!lhallk;uoWipgly depos\h to be deposited, for mailing or delivery. anything declared by this, section to be non-mailable matter, ... ... ... shall for each and every offense be fined," etc'. :"The grand jurors of the United states ... ... * upon ,thl'ir oath s present 'that one' W\llian;J Grimm, late of said di vision of said district. heretofore. to'wit. on day of the m\lnth of JUly. in the year of Our Lord eigilteen hunHnd knOWingly dred and niDety, did then and there unlaWfully, 'deposit.aW(l8\1s.ll to be dl'posited. in the the United States at tit. Louis. Missouri. for mailing ami delivery. a written and:printed letter and no.tica, givin,i; i ll formatio l1 ·,directly and indirectly. to one ,Rohert W. McAfee. where. how. and of whom, and by what means,obscene,lewd. and lascivious and prints; of an indecent character. and intended for and adapiM for an indecentanc.l immoral pse; might be obtained. which said Jetter and notiioowas then and thete non-mailable matter, and was then and there 'contained iu;an wrapper, beating and having thereon the lUl\lress And ;supp.rscription, fQllowing. to-w,it.,·M!r. ,Herman Huntress. care of Bates .:aouse, ·· · aqd W)lich notice is of. tbe follow jng
At Litw.
The first count of the indictn1ent wasl.l.S follows: