United States v. Downey, 257 F. 366

United States v. Downey

257 F. 366 | D.R.I. | 1919

BROWN, District Judge.

[1, 2] The indictment properly charges that the offenses were committed within the territorial jurisdiction of this court. A description of the officer’s place of service is not inconsistent with the express allegations of place of commission of the offenses. Furthermore, even should it be assumed that the fictitious claims or vouchers were made in this district, and were transmitted to an officer in another district, this court would have jurisdiction. Judicial Code (Act March 3, 1911, c. 231) ,§ 42, 36 Stat. 1100 (Comp. St. § 1024); Burton v. United States, 202 U. S. 344, 371, 26 Sup. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 392; Bridgeman v. United States, 140 Fed. 577, 72 C. C. A. 145.

[3] The allegation that a certain person “was not then and there such a deserter under the Act of May 18, 1917, known as the Selective Service Act [40 Stat. 76, c. 15 (Comp. St. 1918, §§ 2044a-2Q44k)], and the public resolutions and acts amendatory thereof, and the regulations issued thereunder by the President of the United States, as entitled said John F. Downey to the payment of such a reward,” etc., is objected to as stating a conclusion of law; but this is a mixed statement of fact and law, rather than a mere conclusion of law.

[4, 5] By making this allegation the United States assumes the burden of showing that as matter of fact the person named did not come within the description of a person or deserter for whose apprehension and delivery a reward was legally payable, pursuant to the provisions of law referred to. The burden of establishing a negative is upon the United States, not upon the defendant; for if a prima facie case *368be made against him, negativing all lawful grounds for a claim of reward, he may meet it on a single ground only. This general mode of statement casts upon the defendant no undue burden in preparation. There seems' to be no greater uncertainty in this form, of allegation than if the indictment had negatived specifically and separately each of the provisions of statute or regulations which state the facts under which a reward is payable.

[6] It is not essential that the bill, voucher, or other thing used as the basis for the claim should, in and of itself, contain fraudulent or fictitious statements, but whether the claim is genuine and honest must be determined in view of all the facts and circumstances surrounding it. Dimmick v. United States, 116 Fed. 825, 54 C. C. A. 329.

[7] It is argued that a necessary requirement of the regulations is the presentation on form 1021 of a certificate, and that without this a fraud could not have been consummated; but' the making of the document or voucher is a separate thing from its presentation, and it does not appear necessary that the indictment should state the circumstances surrounding its presentation, or the nature of any other document accompanying or supporting it.

Assuming that various provisions of the regulations may be involved, it is evident from the defendant’s brief on demurrer that by reference to the statutes and regulations named in the indictment counsel have been sufficiently informed to prepare a defense, and that the accusations are quite as definite as if the United States had specifically negatived each and all of the provisions of statute or regulations which might justify the presentation of claims against the United States for the payment of the sums set forth in the indictment.

Demurrer overruled.