39 F. 768 | E.D. Mo. | 1889
1 have arrived at the following conclusions on the various points raised by the demurrer;
1. The objection made to the first count by defendant’s counsel amounts to this, that because the pleader at the conclusion of the count uses the following language, “and so the grand jurors * * * say * * * that he, the said Julius Lehman, * * * feloniously, falsely, etc., * * * did commit * * * perjury,” the count is not good under section 5395, Rev. St. U. S., which does not declare the offense therein mentioned to bo perjury. The objection made is not tenable. The language quoted is merely the conclusion of the pleader, and no part of the description of the offense. The facts constituting an offense under section 5395 had been previously stated. It matters not that the grand jury supposed, and so stated, that the offense described was perjury. It was not necessary for them to give a name to the offense, and their attempt in that direction may be rejected as surplusage. .Rejecting the words above mentioned, the indictment concludes properly with, the averment that the acts said to have been committed were “ contrary to the form of the statutes of the United States,” etc., which is all that is necessary.
2. The words “or falsely makes, forges, or counterfeits any oath,” etc., in section 5424, were intended to describe the offense of counter
3. Passing to the third count I understand that two objections are made to the same. This count is framed on sections 5427 and 5425, Rev. St. U. S.,and charges the defendant as a principal in the second degree with aiding and abetting another in the commission of a felony. The felony so committed, in the language of the statute, (section 5425,) is consummated when one “ obtains, accepts, or receives any certificate of citizenship known to such person to have been procured by fraud, or by the use of any false name, or by means of any false statement made with intent to procure * * * the issue of such certificate.” The indictment shows that the principal offender, whom the defendant is said to have aided and abetted, (one Ernst John,) obtained, accepted, and received the certificate from the court that granted it; that is to say, the St. Louis court of criminal correction. The point is made, as I understand, that if so obtained by a fraud committed on the court that issued it, at or just before the obtaining or acceptance, such an obtaining -or acceptance is not within the statute; that the statute refers to the obtaining, acceptance, or receipt of fraudulent or forged certificates of citizenship theretofore issued or made, which are outstanding in the hands of third parties.
It is further urged that count No. 8 is bad, because it does not describe the fraudulent acts by which the certificate of citizenship alleged to have been “obtained, accepted,” etc., was procured. In an indictment under the third clause of section 5425 for “ obtaining, accepting, or receiving a certificate, knowing that it has been procured by fraud,” there can scarcely be a doubt that it is essential to allege and describe the fraud by which the certificate was procured. Counsel for the government, in effect, concede that such is the rule of criminal pleading. An indictment in the words of the statute, merely alleging that it was “known to the defendant to have been procured by fraud,” and not advising the defendant or the court of the acts constituting the fraud of which the accused was alleged to have had knowledge, would he clearly bad. U. S. v. Cruikshank, 92 U. S. 557-559; U. S. v. Cook, 17 Wall. 174; U. S. v. Mills, 7 Pet. 142; State v. Parker, 43 N. H. 83; State v. Keach, 40 Vt. 118; Alderman v. People, 4 Mich. 414. It is contended, however, that the indictment in this case does sufficiently describe the fraud by which the certificate of citizenship was procured, and that the grand jury has merely omitted, as it might lawfully do, to describe the manner and means by which the fraud was committed, because they were unknown to the jurors. Attention is called in support of this contention, to the following clause of the indictment, as sufficiently describing the fraud by which the certificate was procured, to-wit:
“ Which said fraud committed before said last-named court was and is that the said Ernst John (tiie principal offender) then and there obtained said certificate from the last-named court, notwithstanding that, at the time lie arrived in the United States, he was under the age of eighteen years, and liad not resided therein three years next preceding his arrival at the age of twenty-one years, and was not then and tiiere entitled to be admitted to become a citizen, and said fraud was so committed by said Ernst John * * * in some manner and by some means to the grand j urors unknown. ”
It is not claimed that the fraud in question is described or alleged in the indictment, otherwise than in the paragraph quoted. There is an attempt, as will be observed in this allegation, to describe a fraud otherwise than by describing the acts of which it consists. But as the word “fraud” or “fraudulent” is merely a term which is used to denote the character of given acts or conduct, and as a fraud may be committed
In the present case, it is not contended that the federal statute describes the offense with such certainty that the language of the statute will suffice in an indictment. It is admitted that the word “fraud” is
4. The fourth count of the indictment is also framed under sections 5425 and 5427 of the Revised Statutes, and is for “ counseling and advising” the commission of the same felony described in the third count. No substantial defect in this count has been pointed out. In this count, the fraud by which the certificate of citizenship obtained and accepted by Ernst John, the principal offender, was procured, is clearly stated It is alleged that the fraud consisted in making a false statement to the court that granted the certificate, and what that false statement was is properly averred. A similar averment in count No. 3 would have made that count tenable. The result is that the demurrer is overruled as to counts 1 and 4, but is sustained as to count No. 3, and the same is quashed.
5. Under late rulings in the federal courts, it seems that the offense defined in section 5395 is a felony, hence counts under that section are properly joined with counts under sections 5425 and 5427. U. S. v. Johannesen, 35 Fed Rep. 411.