21 F. Cas. 1144 | U.S. Circuit Court for the District of Colorado | 1877
Lead Opinion
The statute (Rev.'St. § 5438) on which the indictment is based, when carefully examined, will be found to provide not only for the making or presenting for approval or payment of a claim against the government which is known to be false, fictitious, or fraudulent, but also for the making, for the purpose of
The first count of the indictment charges the petitioner with the making, in Colorado, of a false claim for court expenses, but that count does not, in terms, aver that the claim was in the form of a bill, account, or voucher. But the second count expressly charges the petitioner with the making of a false and fraudulent bill and vouchers, which are set forth at large therein, and avers that this was dope within the territorial limits of Colorado.
The precise, claim of the petitioner is that the district court of Colorado was without jurisdiction in the case, because it appears from the indictment that it is legally impossible for that court to have cognizance of the offence therein charged, for the-reason that the offence, .as charged, was not consummated, and, in the nature of things, could not be consummated, in Colorado. It is contended by the petitioner that the making of a false and fraudulent claim bv the marshal of the United States, within the meaning of the statute, necessarily involves the presentation of that claim for payment or approval, and as it is alleged that this claim was presented to the treasury department in Washington, there could be no completed offence until it was thus presented; and hence the jurisdiction to try the petitioner therefor is exclusively in the proper court in the District of Columbia.
In any view of the present case, it probably falls within and is governed by the decision of the supreme court in Ex parte Parks, 93 U. S. 18. Inasmuch as the making of a false and fraudulent claim against the government is made a criminal offence, and jurisdiction over such offences is given to the district court, the question whether the particular indictment charged a completed of-fence within the district of Colorado, is one which that court was competent to decide, and would be required to decide on a demur--rer to the indictment or on a motion in arrest of judgment.
If decided wrongly, the decision would be erroneous, but not void, and it is plain that an erroneous decision of this kind cannot be corrected on habeas corpus. But it is not necessary to place our judgment on this ground. Nor is it necessary to state what constitutes the making of a false claim within the meaning of the first part of section 5438. A subsequent clause in the section makes it a criminal offence to make any false paper, instrument, bill, affidavit, etc., for the prohibited purpose.
The second count in the indictment charges the making, by the petitioner, within the limits of Colorado, of a false bill, or claim, in | ! writing, which is set forth in full in the indictment. The offence was complete when that, bill was made, as therein alleged, with the intent to use the same to obtain the payment thereof, just as muoh so as if, under another clause, standing in the same connection, the petitioner had made a false affidavit or deposition in Colorado with a view to obtain or aid in obtaining the payment or approval of a fraudulent claim by the treasury department in Washington.
The statute distinguishes between the making and the presenting of a fraudulent account or bill. It makes each a distinct of-fence. It may be that the offence of presenting a false bill or account to the treasury department in Washington can only be prosecuted in the eourts of the District of Columbia; but the offence of making a false bill or account may be prosecuted in the judicial district in which the fraudulent claim is made. What constitutes or consummates the making of a false claim, within the meaning of the statute, may be difficult to define so as to embrace within the definition all cases that might arise. For the purposes of the present application, it is sufficient to say that we are of opinion that the facts averred in the second count of the indictment do show a completed offence within the Territorial limits of the district of Colorado. In other words, our judgment is, that, if a marshal of the United States for a given district shall make out a false and fraudulent bill against the United States for official services or expenses, and present the-same to the court for approval, and, after having secured that, shall forward the same-to the treasury department at Washington for payment, or otherwise cause the same to be there presented for this purpose, this is the making, in such district, of a false and fraudulent bill, within the meaning and purpose of the statute.
Such has been the construction which has heretofore been put. upon this useful and necessary statute in the courts in this circuit, and elsewhere, so far as we know. The opposite construction overlooks the distinction which the statute so broadly marks between the making and the presenting of fraudulent claims, and by confining the jurisdiction, in most cases, to the District of Columbia, would rob the statute of its utility by disabling the government to prosecute for its violation, except'under obvious difficulties. and at great expense, both to itself and to the persons whom it accused.
Concurrence Opinion
concurs in this exposition of the statute and in the opinion that the petitioner is not entitled, on the showing made, to a writ of habeas corpus. The writ is accordingly refused.
Writ refused.
Sec Ex parte Peters [Case No. 11.027].
