15 N.M. 204 | N.M. | 1909
OPINION OF THE COURT.
Jesus M. Medina, the appellant, was indicted upon three counts for a violation of H. S, Rev. St., Sec. 4746, as .amended by the Act of July 7th, 1898. All three counts were demurred to, the demurrer being sustained to the first count and overruled as to the remaining counts. A trial was had resulting in a verdict of guilty upon the second and third counts. After adverse ruling upon motion for a new trial the court imposed a sentence of eighteen months upon each of these. counts, the terms to run successively. The case thereupon came into this court by appeal.
The controlling statute is as follows: “That every person who knowingly or wilfully makes or aids, or assists in the making, or in any wise procures the making or presentation of any false or fraudulent affidavit, declaration, certificate, voucher, or paper or writing purporting to be such, concerning .any claim for pension or payment thereof, or pertaining to any other matter within the jurisdiction of the Commissioner of Pensions or of the Secretary of the Interior, * * * and every person, before whom any declaration, affidavit, voucher, or other paper or writing to be used in aid of the prosecution of any claim for pension or bounty land or payment thereof purports to have been executed who shall knowingly certify that the declarant, affiant, or witness named in such declaration, affidavit, voucher, or other paper or writing personally .appeared before him and was sworn, thereto, or acknowledged the execution thereof, when, in fact; such declarant, affiant, or witness did not personally appear before him or was not sworn thereto, or did not acknowledge the execution thereof, shall be punished by a fine not exceeding five hundred dollars, or by imprisonment for a term of not more than five years.”
The second count charges the defendant with a violation .of the last clause of the statute in that in a certain affidavit purporting to have been executed before him on August 5th, 1904, and being for use in aid of a' certain pension claim, the defendant “unlawfully and knowingly did certify that the affiant named in said affidavit, to-wit, Eev. Eamon Medina, personally appeared before him the said Jesus M. Medina, -and was sworn thereto, whereas in truth and in effect the said Eev. Eamon Medina did not so personally appear before him, the said Jesus M. Medina, and was not so sworn to the said affidavit as he, the said Jesus M. Medina, at the time of so certifying to said affidavit and writing then and there well knew.”
The third count charges a violation of the first clause of the statute in that the defendant “did unlawfully, knowingly and wilfully make and aid and assist in the making of a certain false and fraudulent affidavit, the tenor of which is as> follows: [then following in full the same affidavit involved in the second count], the said affidavit being then and there an .affidavit concerning a claim for pension in the said affidavit mentioned and the said Jesus M. Medina at the time of making and aiding and assisting in the making of the said affidavit then and there well knowing the same to be false .and fraudulent.”
“The rule that-an indictment is sufficient if the offense be charged in the words of the statute is limited to cases where the words of the statute themselves fully, directly and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.”
To the same effect is Miller v. U. S., 136 Fed. 581, a prosecution under the statute here involved.
A further assignment of error is based upon the rejection of certain testimony offered for the defence. Ramon Medina, whose affidavit formed the basis of the prose-' eution, testified as a witness for the government that the contents of the affidavit were untrue; that while lie signed the paper upon the request of a messenger purporting to come from defendant, he signed it in ignorance of its contents, not being acquainted with English; that he never appeared before the defendant in connection with the matter and was never sworn to it either before or after it was filled out. The defendant testified that the priest’s affidavit, after the contents thereof had been dictated to him by the priest,, was not then and there signed by the latter for the reason that he, the priest, was too sick to sign it and that he, the defendant, thereupon took it home with him and sent it back to the priest for signature the day following. lie further testified that he first swore the priegt as to the matters to be stated in the said affidavit, and then filled out the affidavit as he (the said Ramon Medina) was telling him, but this last testimony was, stricken out on motion. A further question asked by the defendant as follows was not allowed:
“State whether or not before the said .affidavit was filled out you administered an oath in respect to the same to Father Medina.”
Likéwise, one Meliton Armijo called for the defense testified as follows:
“Jesus M. Medina said to Father Medina that he, Jesus M. Medina, could fill out the blank for him (Father Medina) if he (Father Medina) would authorize him to do it, but before doing so he (Jesus M. Medina) would have to swear him (Father Medina) to what he was going to put into it and then the priest raised his hand.”
“They [the defendants] were obliged by law to act and to decide upon the qualifications of every person offering, as a duly qualified elector to vote at the polls at which they presided. When these qualifications were, by some proper method, called in question, and when so acting, the most that reason or justice could require of them was a Iona -fide effort to discharge their duties according to the best of their knowledge and ability; and if in so doing they committed an obvious but sincere mistake of the law or error of judgment, they are not criminally responsible therefor. The law only required of them true candor and sincerity, .and it will only punish them for corruption and falsehood for acting contrary to their own sense of duty and the dictates of their own consciences. In this sense we 'understand the word ‘knowingly5 to be. used in the statute: that is, knowing that their duty and the obligation of their oath commanded them to act otherwise. It is the wicked intent or corrupt motive which the laws'punish as a crime, and it cannot be supposed that it was the intention of the Legislature, in this instant, to substitute for them the upright but misdirected efforts of the mind or judgment of one whose action was not voluntary but in obedience to the requirements of the law.” ' ■
' ’ The judgment • of the- lower court is reversed with 'directions to' quash the third count of the indictment and to grant a new trial upon the second count of the indictment.