Berry v. United States, 259 F. 203

Berry v. United States

259 F. 203 | 9th Cir. | 1919

GILBERT, Circuit Judge

(after stating (he facts as above). The plaintiff in error moved in arrest of judgment.in the court below, on the ground that the indictment does not charge facts sufficient to constitute an offense against the laws of the United States. The same objection to the indictment is presented in this court, and it is now argued that facts are not set forth in the indictment to show that the evidence alleged to have been falsely given was material to the issues or the facts, or that the affidavit was received, accepted, or acted upon as the affidavit required by law, and that the indictment is fatally defective, for the reason that the affidavit states that there was expended for reclamation of said land $160 for clearing and breaking, whereas the as*205signing portion charges the falsity of the affidavit to consist in the fact that no clearing or breaking had been done.

[1-3] By failing to demur to the indictment the plaintiff in error waived all objections thereto, except the objection that some substantial element of the crime was omitted therefrom. Dunbar v. United States, 156 U. S. 185, 192, 15 Sup. Ct. 325, 39 L. Ed. 390; Boren v. United States, 144 Fed. 801, 75 C. C. A. 531; Oesting v. United States, 234 Fed. 304, 148 C. C. A. 206. The materiality of a perjured statement may be made to appear either by an allegation of its materiality (Markham v. United States, 160 U. S. 325, 16 Sup. Ct. 288, 40 L. Ed. 441), or by pleading facts which of themselves show its materiality (2 Bishop, New Crim. Proc. § 921; Ammerman v. United States, 185 Fed. 1, 108 C. C. A. 1). The materiality here appears from the facts pleaded. It is alleged that the affidavit was made and filed with the register “in and concerning a desert land entry then pending in the said United States land office.” The statute required proof of the expenditure of money on necessary improvements and proof of the manner in which it was expended, and thereby made such proof material. Markham v. United States, 160 U. S. 319, 320,16 Sup. Ct. 288, 40 L. Ed. 441; Hendricks v. United States, 223 U. S. 178, 32 Sup. Ct. 313, 56 L. Ed. 394; United States v. Smull, 236 U. S. 405, 35 Sup. Ct. 349, 59 L. Ed. 641.

[4] Nor is the indictment fatally defective, in that it contains no charge that the affidavit was accepted and acted upon by the government. Noah v. United States, 128 Fed. 270, 62 C. C. A. 618; section 125 of the Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1111 [Comp. St. § 10295]) imposes a penalty upon any one who, “having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, * * * that any written testimony, declaration, deposition, or certificate by him subscribed, is true, shall willfully and contrary to such oath state or subscribe any material matter which he does not believe to be true.”

[5] Nor should the indictment be held defective on the ground that the affidavit on which perjury is predicated falls short of alleging that breaking or clearing was done on the land but states only that a certain sum of money had been expended on the property for clearing and breaking. The clear intendment of the language of the affidavit is that clearing and breaking to the value stated had been done on the land, and the falsity of the affidavit is sufficiently set forth in alleging that no clearing or breaking had been done, and that the plaintiff in error knew that the affidavit was wholly untrue and false.

The judgment is affirmed.