97 F. 494 | U.S. Circuit Court for the District of Oregon | 1899
This is an indictment under section 5418 of the Revised Statutes. It charges that the defendant, with the intent to defraud the United States, knowingly and unlawfully made and counterfeited a certain blank form in writing, in resemblance and similitude of the true and genuine thereof, theretofore made and issued by and under the authority of the United States; that is to say, a certain blank form of certificate of residence issued by the United States to Chinese persons lawfully entitled to remain therein as evidence of such right, said false and counterfeited blank form being of the tenor following, to wit:
No. -. Original. United States of America. Certificate of Residence Issued to Chinese-, under the provisions of the act of May 5, 1892. This is to certify that-, a Chinese person, has made application No. - to me for a certificate of residence, under the provisions of the act of congress approved May 5, 1892; and I certify that it appears from the affidavits of witnesses submitted with said application that said - was within the limits of the United States at the time of the passage of said act, and was then re*495 siding at.---, and that he was at that time lawfully entitled to remain in the United States, and that the following is a descriptive list of said Chinese -viz.: Name, --; age, -; local residence, -; occupation, --; height,---; color of ejes,--; complexion, -; physical marks or peculiarities for identification,----.
And, as a further means of identification, I have [Photograph to he affixed hereto a photographic likeness of said-. affixed here.] Given under my hand and seal this-day of —--, 189 — , at-----, state of--. [Collector’s Seal.] --, Collector Internal Jtevenue, District of --.
The second count of this indictment is not materially different from the first; the charge in the one count being that the writing of which the blank is in resemblance and similitude was made and issued by and under the authority of the United States, and in the other that it was made and issued by the United States collector of internal revenue under the authority of the United States.
Section 5418 makes it a crime to falsely make, alter, forge, or counterfeit any bid, proposal, guaranty, official bond, public record, affidavit, or other writing, for the purpose of defrauding the United States, or to utter or publish as true any such false, forged, altered, or counterfeited bid, proposal, guaranty, official bond, public record, affidavit, or other, writing, for such purpose, knowing the same to be false, forged, altered, or counterfeited.
The making or having in his possession by the defendant of the blank form in question is not, in my opinion, an offense, under section 5418. It is settled that it is no offense to have in one’s possession, with the intent to use, an obligation that is unsigned. This blank does not represent anything nor convey anything. It is a meaningless document, not capable of imposing upon anybody or of effecting anything. The most that can be said of it is that it is a step towards the preparation of such a document as it is claimed to be by the government upon the argument of this demurrer. It is admitted by the attorney for the United States in the argument on this demurrer that this is not such a document as is described in section 8 of the Chinese exclusion act of May 5, 1892, which provides that “any person who shall knowingly and falsely alter or substitute any name for the name written in such certificate, or forge such certificate, or knowingly utter any forged or fraudulent certificate, or falsely personate any person named in such certificate, shall be guilty of a misdemeanor,” etc. If this so-called “instrument” is not described by this act because it does nol: constitute a certificate, for the like reason it is not within the provisions of section 5418. In other words, this mere blank is not a writing, and it is not capable of performing the functions of one, within the meaning of this section. The demurrer to the indictment is sustained.
