STATE:S f).ADLlll\'t. ,
733
carve an exception out of the enacting clause, and th.erefore I must read the enacting clause as including wearing apparel among the articles made wholly or in part. of lace. I think the qUestion is a close one, yet other conclusion, giving·to the proviso in section I cannot.ai'rive at S78wbatl deem to be its due force and effect. The decision of the board of appraisers should be reversed. So ordered.
UNITED L
STATES f). ADLER
et al.
Cowrt, S. V. 10't0a, C. D. March 8, 1m.) PENSIONS-FRAuDULENT PRESBNTATION OF CLJ.IM-INDICTHBNT.
, Au.· indictment under Rev. St.. 5 4746, for knowingly procuring the presentation of a false affidavit cOncerning a claim for pension, is Buftlcient if it alleges the presentation of an affidavit with a signature known to be false and forged. It need not allege that the pension claim was false.
I.
SAME.
The indictment charged that defendants on a certain day, "at the county of Wapello, in the southern district of Iowa, did then and there present to the commissioner of pensions at Washington, iil the District of Columbia," etc. At its close it charged; "And that at the time and place aforesaid, that is to say, on * * * at the county of Wapello, state of Iowa, the said * * * did then and there preserit and (lause to be presented to the commissioner of pensions aforesaid," etc. construing the parts of the indictment together, that it charged the presentation of the false affidavit at Wapello county, Iowa, and not at Washington, D.C.'
J.P. Laiiey and M. J. Williams, for defendant Adler. Before SmRAS and WOOLSON, 'District Judges. WOOLSOI!t, District Judge. The indictment herein charges that on the 8th day of July, A. D. 1890, defendant-
J-ewis M'lle8, Dist. Atty., for the United States.
At Law.
On demurrer to indictment.
Overruled.
"At the county of Wapello, in the southern district of Iowa, did then and there cause to be presented and present to the commissioner of pensions at Washington, in the District of Columbia, a certain false, forged, and counterfeited affidavit, in writing, which said false, forged. and counterfeited affidavit is iDwriting, and is ill words and figures as follows, [here follows, an affidavit, being a declaration for an invalid pension (in the ordinary form) for Daniel Boone, and purporting to be signed by Daniel BOODIl as affiant;] that said false, forged, and counterfeit affidavit is false, in this: that is to say. that the said false, forged, and counterfeited affidavit was never signed by Daniel Boone, but that in truth and in fact the same was signed by said George S. Boone, and that said George S. Boone signed the name Daniel Boone to said false and forged affidavit, which said false, forged, and counterfeited affidavit .has marked thereon the receiving mark of the pension office of the United States, of date July 11, 1890; that at and long prior to the signing of the name Daniel Boone to said false and forged affidavit the said Daniel Boone, Whose name was purported to be signed to said false and forged affidavit, had been deceased, and that at the time and place aforesaid, tllat is-to saYi on the 8th day of July, A. D. +'690, at the county of Wapello, state oflowa, the
nDEBALREPORTEB,
vol4r9.
is'a.id George S.Booneahd the saidS;rE; Adler did then aull 'Oa:used·to b8'preSented, to tbe .·comrnlsaionet',aforel\¥Jd"with the intent then aDd.tbere,onthe part of tllem, t"e llaid: George S. B,ppne and ,E. ,Adlel". then al)ll there; the ,signed to said aDd forged lIffida.Vlt. was forged and false'; ,and that Dl:m:leI HOOllEl had been signed thereto l)ythe said George S. Boone, contrary to the form of the statutes; "etc. ." To this indictment defendant Adler demurs, under assignments which may be summarized as follows: (1) The affidavit is charged to have been presented at Washington, D. C., and without the jurisdiction of this court; (2) the acts charged constitute no crime; (3) the pension claim which the affidavit was filed to support is not charged to have been false; (4)it is not averred t,hat the commissioner of pensions has authority to allow the claim; (5) it is not charged that defendant knew the claim to be false. The il1dictmeJ:it ap¢ats to have been drawn under section 4746, Rev. St. This section provides that"Every pers()n who knowingly, .. .. .. in any wise, procnres the .. .... presentation of any false. or fraudulent. affidavit concerning any claim for pension, ..... .. shall be punished," etc. Counsel for defendant appear to have considered the indictment as drawn under seotion 5438. An examination of the two sections will distinctions between them. By the terms of readily section 4746 the offense therein designated conAists of a. very few essentials, and may be summed up in the words, "knowingly procuring the presentation of a. false affidaviteoncerninga claim for. pension." The indictment sets out the affidavit which it charges to be false. It charges this affidavit to have .been "in support and in declaration of a pension for one Daniel Boone." It also charges sairl affidavit to be false, and expressly alleges the same was false because of the false and forged sig11IIture theretojthat said Adllill,.did"cause to be prel:)ented and present" said affidavit, said defendant "then and there well knowing tha,t the name Da.J;I;iel Boone, signed to said false and forged affidavit, Was forged and falsej" and the time and place of the comD:lission of the of. fense are also stated. ' Thus the ingredients essential to the offense undel.' section 4746 are charged in the indictment, and the 2d, 4th, and 5th assignments of demurrer are notwell taken. Thisisection does not require that the-pension claim must be false, concerning which the false afPdavit is preRented,and the 3d aSsignment is not well taken. The· remaining assignment contElflts the jurisdiction of this court, because, as claimed, the indictment charges the affidavit to have been presented to the commissioner of pensions at Washington, D.O., and ,fore the court at Washington . alone has jurisdiction over the. crime charged. The pnrase91ogyof thEdndi<:tment,ispeculiar on the point under consideration. ;Lts is, "gn the 8th day of July, at the county of Wapello, in the southern: district of Iowa, did then and there cause to be presented and present to the commissioner of pensions at Washington; in the District of Columbia," etc. The claim is that
"UNITED., STATES: .fl. ADLEB..,·,
785
the words, "at Washington, in the District of Columbia," relate to and fix the presentation as 'named in the indictment. , The district attorney contends that these words are merely descriptio per8O'nllJ with reference to the commiasioner;:and that the plain meaning and mllnif.,st construction of the place of presentation, as stated in the indictment, is, "at the QOunty of Wapell9, in t1;Ie Ilouthern dillfrict of Iowa, then and there present,"etc. In construing the indictment uponthis point; $llits different parts relating to place of presentation should be considered. vye find. that towards its close the indictment contains the \ aforesaid, that ill on the 8th day of . July, Ad).,1890,II,Uliecounty ofWapeUQ, state of tbe ' .. ,... .. S. E. Adler did then and there present and. cause to be to the commissioner of pensions aforesaid. .. .. .... Section 1025; Rev. St.,·provides that"No indictrrientshatl be deemed insufficient by reason of any detect or 1m.. perfection in: matter of form. only, which Ilhall not tend tothe·preju<iice of defendant... , In U. S. v. WaddeU, 112 U. S. 76, 5 Sup. Ct. Rep; 35,J'Ufiltice MILLER states the rule as to the precision with which the indictment must adVise defendant of the crime charged, to be that of "reasonable precision." In U. B. v. Brittcm, 107 U. S. 6p5, 2 Sup. Ct. Rep. 512,.Justice·WooDs says it: is sufficient if the gives defendant cleftr nptice of the charge he is called on to defend. . A more extende<i statement on this point is found in U. S. v. 18 Fed. Rep. 905, where the c.oqrt, announces that"Certainty to a common int!m t is Bufticient. Such oortainty is attained When enougb is, alleg{!d toelearly apprise the. accused oUhe indentical, crime with which he is cbarged, so that be maY'prepare to meet the Taking the entire indictment into consideration, there .can be no doubt in the ordinary lllind that place of presentation of, the false affidavit: is charged to at WapElllo county, Iowa, that' contention of the. diS.trict attomeyis inparmony with the indictment, considered in all its parts. Certainly this construction ca,nn<;>t tend to the prejudice of the defendant, at least as .to tbe form in .w the indictment advises him of the facts which are charged;. as constituting the offense whicp he is called to llleet. .ThE? evidence which maybeotlered on the trial as to the fact of, presentation to the commissioner "at Wapello county, Iowa," may bring before the court,.in anotherform, the qUestion of! presentation. We are now considerblg the indictment as admitted, by the demurrer,Jn all its essential allegations; and, a$we find the ,8.f!signments of the demurrer to be not taken, it follows that the demurrer, in its entirety, must be overruled; and it is 80 ordered. . .
.BBIRAS, DistrietJ'udge, concurs. :;"'; ..
,
T86
I'&DERAL REPORTER,
vol. 49. et· al.
.,\'1
'
UNlTEDSTATEB 1.'. ADLJi:B
L
.. '. . . .. lL BAMB.. An indictment under that lectlon is sumcientwhen it charges that defendants to a pension for one of them in the name of .. dead soldier, and that they knowingly caused to be made and preSented to the commissioner of pensions' a fals8 atrdavit in support of a claim for auoh pension,-'an aot made orimlnal bvRev. Bt. U. B. § 4746. .. .
AIlmdiotmentunder Rev. St. U. B. § 54iO, oharge three things: (1) A conIpiracYi (2) either to oommitlome o1!ense against the Unitedf;ltatel11or to defraud Statllii (8)tl/.e doing of some aot. to etreot the object of trie conspiracy. " the
OoXSPlRAOT-IIroIOTJIBNT.
At Law. Prosecution of S. E. Adler and George S. Bocme for a, conspiracy to commit anoffenEfe against the United States. and to defraud the United States. 'On demurrer to the indictment. Overruled. Lewis Miles, Dist. Atty., for the United States. 'John F. Lace:y and M.· J. Williams, for defendant Adler. Before SaIRAs and WOOLSON" District Judges. WOOLSON, District Judge. The indictment herein appears to be drawn under section 5440, Rev. St., and is voluminous. It oharges that defendants, "at the county 6f Wapello, in 'the southern district of Iowa; on the"8thday of July, 1890, did willfully, unlawfully, corruptly, and feloniously conspire, confederate, and agree together and with each other to defraud the United States out of sums of money, the exact amount of ,which is to the jurors unknown," and that in pursuance of said conspiracy, and to effectuate and carry out the same, on said 8th day of July, 1890, and at said county of Wapello, said defendants, knowing that one :paniel Boone, at said date deceased, had in his life-time been in the volullteer service of the government, in the late civiI war, and had been honorably discharged therefrom, (which said discharge said defendants then had in their possession,) sa.id'defendants'made and caused to made applieatioI). to the commissioner of pensions for a pension for Said GeorgeS. BooIie, in the name of said Daniel Boone, and caused to beprooured and presented to said commissioner, and in support of said claim for pension, a false :arid fraua'ulent affidavit, (which is exhibited with the indictmentj) that the signature to said affidavit js false and forged, and was forged thereto by said George S. Boone; and that, at the time said affidavit was so presented to said commissioner, said defendantfj well knew said signature to be false and forged. Defendant Adler filed a demurrer containing a large number of assignments, which for convenience may be summarized as follows: (1) The indictment no crime. No crime is charged as the object of the conspiracy. (2) No act is charged as having been committed in furtherance of the conspiracy. Under section 5440, three essentials must be charged: (1) A conspiraCYj (2) the design of which is either to commit some offense against the United States or to defraud the United Statesj and (3) the doing of some
737 act to' effect the object of the conspiracy.' And, if the indictment suffieintly"charges these three matters, it charges a crime, tInder this section. The demurrer mQ.kes no attack on that portion of the indictment charging a cOnspiracy. Its asSignments are restricted to the second and third essen· tials named above. Does the indictment charge that the design of the conspiracy was to commit any crime against the United States? Upon the argument, counsel did not disagree that a conspiracy to commit any offense which by the statute is made an offense agai.nst the United States, is punishable under section 5440, provided the overt act followed. Seetion 4746, Rev. St., declares: .· "Every person who knowingly or willfully, in any wi.se, procures themaking or presentation of any false or fraudulent affidavit concerning any claim for pension, shall, be punished," etc. Turning to the indictment, we find it charged: "The said, S. E. Adler and the said George S. Boone being then and there at the county of Wapello, state of Iowa, aforesaid, on said 8th day of JUly, .A. D. 1890, did corruptly, unlawfully, and feloniously conspire and agree together to make an apPlication to the commissioner of pensions, for a pension, for him, the said George S. Boone, in the name of him, theo68id Daniel Boone, and to falsely, fraudulently, and feloniously obtain a pension for him, the said George S.,Boone, in the name of him, the said Daniel Boone; and that to said corrupt, unlawful, aud felonious conspiracy, and in pursuance of said conspiracy, did then and there, at the county of Wapello, in the state of Iowa, on the 8th day of JUly,A. D. 1890, make and cause to be a false. forged, and fraudulent affidavit. in writing, and did then and ther,6;at the time and place last aforesaid, cause and procure to be transmitted and presented to the commissioner of pensions, as true, the aforesaid false. forged, and counterfeit affidavit. in support of a claim for a pension for him, the said George S. Boone, under act of congress of June 27, A. D. 1890; .. .. .. and that, at the time !Ind place said defendants presented said false affidavit to the commisaioner of pensions, said S. E·.Adler and said George S. Boone well knew that the signature to said affidavit was false and forged." Here are distinctly chll,rged all the elements the offense for whose punishmeiltsection '4746 provides, as above stated, viz.: (1) Knowingly (2) procuring the presentation of a false affidavit (3) concerning a claim for pension; and thus the indictment charges the second essential under section 5440. , , . The remaining essential relates to the "act done toetrect the object of the conspiracy." The conspiracy, as charged, was "to defraud the United States out of money" by the acts which the indictment alleges; that is, this conspiracy ("to defraud the United States out of sums of money") was to be accompli",hed, as the same is charged,as follows: "To make an application to the commissioner of pensions fora pension for him, the said George S. Boone, in the name of him, the said Daniel Boone, and to falsely, fraudulently, corruptly, and feloniously obtain a pension for him, the said George S. Boone, in the name of him, the said Daniel Boone,"-the indictment having previously charged that said Daniel Boone was dead, and that said defendants had obtained possession of his honorable discharge. Thus the particular act done to effect the object of the conspiracy may be said to be that the defendants V .49F.no.9-47
P:'?Fli'i8f" th,e' cIa,im, ,£',o,r false apd frauduat the time weM ,knQw,If w,tAA gefendant"" gefendapts ;Jowa, onlJwy8,1890, in su,pport of sio.trClaim of ·and Jh,e money upon said pensionby the the money the defendantscqnspired to"defra:rid United States. Or,l\wtiQg the, indictment in defendants .(1) the' United 'States out of money through a fraudulent ,by ID!l<4'lJO th,e ;cot;llmissipIler of fl),r, ll,nd (3) knowingly tQ,shid false affidavit in" support of and concerning said pension clnim. ' _ Under the statutes and l1uthorities with reference to the clearness and an, indictment must charge the qfl'epse', (section'1025, Rev,. St.; U. ,v. U. S'., 76, :Q:,Sup.ct. Rep. 35; U.S.. v. Britwn, 107 U.:,I3. 655',,2,£u1>. Ctl Rep." 512,) :we find this indictme,nt SUfficient., ,!f,atly complaint could be justly urged, such complaint rather be that the':indiettneIl't 18 sb unnecessarily diffuse ahd mi": ,asthlit itsclearness: of statement is thereby impaired. As' the indicitwent a stat*tory offenije;and as it also' apprises' defendantsof the,ldentical crime with which they are charged, so that thfly.,may prepare to meet the · .8. v. Ferol' is Fed. Rep. overruled; and it is: so ordered. IS
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