De Lemos v. United States, No. 767

No. 767 | 5th Cir. | Jan 3, 1899

PARLANGE, District Judge,

after stating the facts as above, delivered the opinion of the court.

We deem it sufficient for the decision of this cause to consider only the first two specifications of error, which read as follows:

“First. The circuit court erred in overruling the demurrer of the defendant. Second. The court erred in holding that the indictment described any offense against the United States, punishable under the laws thereof.”

The acts which the proseefitor intended to aver in this cause are that the plaintiff in error, having obtained possession of a genuine government draft, forged an indorsement thereon, and that he subsequently uttered the draft with the forged indorsement upon it. The counsel for the plaintiff in error contended in their oral argument that there is no law of the United States punishing such acts. We are clear that the contention is without force. A charge could be laid for the forgery under section 5414, Rev. St. U. S., which denounces the cf. fense of forging the obligations or securities of the United States; and a charge could also he laid under section 5421, Id., which denounces the offense of forging writings for the purpose of obtaining money from the United States. For uttering a genuine government draft with a forged indorsement, a charge could be laid under section 5431, Id. The prosecutor intended to lay the charges contained in counts 1 and 2 under section 5414, Rev. St. U. S., and those two counts are said to he for one and the game offense. The charge contained in count 3 was intended to be laid under section 5431, Id. To have properly laid the charge for the forgery under section 5414, the pleader should have distinctly charged that the genuine draft, with the forged indorsement upon it, constitute together a forged obligation of the United States. But we find in count 1, and in counts 2 and 3 as well, a clear averment that the draft itself, without the indorsement, is forged. This, of course, is untrue, and is plainly repugnant to the further averment in the count that the forgery consists in the false making of the indorsement. Count 2, besides reiterating the repugnant averment that the draft itself is forged, is additionally defective because it does not set out the draft, but merely refers to its setting out in count 1, which count is itself fatally defective, as we have just shown. See 1 Bish. Cr. Proc. (3d Ed.) § 431. Count 3 is similarly defective, because of the repugnant averment that the draft itself is forged. Furthermore the scienter is defectively averred in count 3. There may also be other material defects in the three counts. It is plain that counts 1 and 2 cannot be held good, under section 5421, which would have required the laying of the charge on the indorsement, and not on the draft, and should have otherwise conformed to the requirements of that statute.

We are of opinion that the demurrer should have been sustained, and the indictment quashed. This view makes it unnecessary for v. to consider the other questions raised by the assignment of errors. It is ordered that the judgment of the lower court be reversed, and that this cause be remanded to that court, with the direction to award a new trial, sustain the demurrer, and quash the indictment.