1 F. 49 | U.S. Circuit Court for the District of Eastern Wisconsin | 1880
This is an indictment for presenting for payment to the pension agent in Milwaukee a false and fraudulent claim for pension moneys. The defendant was tried and convicted at the last term of the court, and the case is again up for consideration upon a motion in arrest of judgment.
It is not wdthout reluctance that I have come to the conclusion with reference to the disposition of the motion which I am constrained to announce, since the evidence adduced on the trial tended strongly to show the perpetration of a gross fraud upon the government; hut it is the duty of the court tc administer the law according to its best understanding, regardless of consequences.
Tbe defendant was indicted under section 5438, Revised Statutes, which provides that every person who presents for payment to or by any person or officer in the civil service of the United States any claim upon or against the government, or any department thereof, knowing such claim to be false, fictitious or f’.audulent, shall he punished as the statute directs. The offence may in one view he regarded as a felony, and in another view as a misdemeanor, since the statute declares with reference to the punishment that the person offending shall he imprisoned at hard labor for not less than one nor more than five years, or fined not less than $1,000 nor more than $5,000.
The indictment contains three counts, but as they are equivalent in form reference to one will be sufficient. The first count charges that on the fourth day of December, 1877, the defendant did present and cause to be presented for pay
The indictment alleges no facts which constitute the fraud; it is not shown how the fraud was perpetrated, nor wherein the claim was false, except that .the defendant presented a claim which he represented to be due to him by virtue of a pension certificate, which had been theretofore procured upon false and fraudulent proofs, and- by unlawful and fraudulent devices, .and without authority of law. What the false and fraudulent proofs, and unlawful and fraudulent devices were, is not stated. The question is, are these allegations sufficiently certain, and do they contain statements of fact which will support a conviction ? My impression, upon the argument, was that the objection urged by counsel for defendant was one which went rather to the form than to the substance of the indictment, and that, as he had not moved to quash, his objection was not good in arrest of judgment; but the rule
In the ease of the U. S. v. Simmons, 96 U. S. 360, the supreme court had occasion to point out the precise scope and limitations of this rule, and after stating the rule Justice Harlan says, in the opinion: “But to this general rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defence, and plead the judgment as a bar to any subsequent prosecution for the same offence.” And here, I think, we strike the fatal point in this indictment; for, after as careful and serious consideration as a case of this nature requires, I am unable to see how defendant could plead his present conviction under this indictment, and a judgment thereon, in bar of a second prosecution for the same offence. It is alleged, only* that he presented to the pension agent a claim for pension moneys under a pension certificate which was procured by false and fraudulent proofs, and unlawful and fraudulent devices. The fraud should have been, by apt allegation, more particularly identified; it should have been alleged what the proofs and devices were, and wherein they were fraudulent; and it is, in my judgment, immaterial when the proofs were made, or devices resorted to — whether at the time of presenting the claim, or at a time anterior — and when made, as the basis for obtaining the pension certificate. If the fradulent devices had consisted of an act done when payment was demanded, it would, I think, be clear that the nature of the devices, or particular fraud practiced at the time, should be alleged, and, if this is so, it seems also essential that they should be alleged, though they were, in fact, practiced at and before the time of obtaining the pension certificate. The offence, it is true, was one committed, not in 1867, but in 1877 and in 1878 — that is, a claim was presented for payment at those times — but, going back to the origin of the alleged fraud, I do not understand why it is not
It was stated upon the argument that what is alleged in the indictment in regard to fraud in obtaining the pension certificate relates to the evidence of the offence, and not the offence itself; but it is not the presentation of the claim for payment which makes the offence, it is the presentation for payment of a false or fraudulent claim, and as no fraud can be committed but by deceitful practices, the particular deceitful practices by which the fraud is alleged to have been committed, or which make the claim fraudulent, should be to such extent set forth, as to make the fraud appear upon the face of the indictment. This may be, to a certain extent, alleging the evidence of the offence, but it is rather the statement of essential facts which constitute the fraud, and therefore make the presentation for payment of the claim a criminal offence.
Judgment must be arrested.