United States v. Franklin

174 F. 161 | U.S. Circuit Court for the District of Southern New York | 1909

HAND, District Judge

(after stating the facts as above). As to point 1: This point is answered by U. S. v. Northway, 120 U. S. 327, 7 Sup. Ct. 580, 30 L. Ed. 664, where the indictment read “as president and agent,” though the statute defined two separate offenses; one as president, one as agent. It is perfectly obvious that there was here no intention to charge two offenses.

As to point 2: The discrepancies between the claim and the actual prices paid are sufficiently set out. The pleader has not relied on a word stating only a legal conclusion, like “fraudulent.” It is captious to quarrel with the phrase “should have been.” Everybody knows that this is intended to cover the prices actually paid by the defendant. It is clear that they charge him with putting in the bills what he said he had paid. To hold otherwise would be to introduce needless perversity into such matters.

As to point 3: As a mere allegation of fact, i. e., that the superintendent had authority to approve the claim, I think it is not demurrable. Cochran v. U. S., 157 U. S. 286, 15 Sup. Ct. 628, 39 L. Ed. 704. True, it is an allegation involving the existence of law; but so is the allegation “made in accordance with the provisions of section 5211” (U. S. Comp. St. 1901, p. 3498). Had it been necessary to rely upon such an allegation in sustaining the pleading upon the corpus delicti, I should think otherwise; but there are many incidental allegations, necessarily stated with some admixture of law. Were it not so, indictments would be often quite interminable. Here the superintendent is identified as being an officer, within section 5438, “authorized by law” to approve the account, That allegation is quite enough to identify him as one of those included under the statute, and to advise the defendant of what officer they intend. So far as concerns the argument that he could not have been so authorized under the statute, it docs not convince me. Whatever the legal status of the “cadet mess,” it is quite clear to me that the United States had power to give to the commanding officer of the cadets the right to approve or disapprove bills presented to them. They have not the rights of officers in the service. They are yet in tutelage, and the United States has power to protect them in their contracts, by sequestrating their pay and protecting its disbursement. Whether the regulations in fact give the superintendent that power is a matter which will come up on the trial.

Demurrer overruled.