196 F. 579 | E.D. Wash. | 1912
The indictment in this case, containing two counts, was returned under section 32 of the Criminal Code of March 4, 1909, which reads as follows:
“Whoever, with intent to defraud either the United States or any person, shall falsely assume or pretend to be an officer or employé acting under the authority of the United States, or any department, or any officer of the government thereof, and shall take- upon himself to act as such, or shall in such pretended character demand or obtain from any person or from the United States, or any department, or any officer of the government thereof, any money, paper, document, or other valuable thing, shall be fined not more than one thousand dollars, -or imprisoned not more than three years, or both.”
The first count of the indictment charges that the defendant did—
“unlawfully, feloniously, and with intent to defraud divers persons, among others J. J. Tilton, falsely assume and pretend that he was an employé acting under the authority of the United States, and did then and there take upon himself to act as such employé, and in this, to wit: That he then and there falsely assumed and pretended to said J. J. Tilton that he was an employé of and authorized by the United States to sell a certain set of books named ‘Messages and Papers of the Presidents.’ ”
The second count charges that the defendant did—
“unlawfully, feloniously, and with intent to defraud divers persons, among others J. J. Tilton, falsely assume and pretend that he was an employé acting under the authority of the United States for the purpose of selling a certain set of books named ‘Messages and Papers of the Presidents.’ and did then and there take upon himself to act as such employé and did in such assumed and pretended character of an employé of the United States as aforesaid, knowingly, willfully, and feloniously obtain from said J. J. Tilton, a large sum of money, to wit, the sum of ten dollars.”
A demurrer has been interposed to the indictment on the ground, among others, that it does not charge facts sufficient to constitute' an offense against the laws of the United States, and the parties have stipulated certain facts which it is agreed shall be considered by the
In the latter case the court said:
“The filiarse of committing the offense of obtaining money or property under false pretenses cannot be maintained in any case unless it appears not only that a false pretense was in fact made, but also that it was made with the intention of cheating or defrauding some person, and that such person was in fact cheated or defrauded lo his or her injury. These are elementary principles and really require no citation of authorities. * * * ”
A similar view was taken by Judge Holt in the United States Circuit Court for the Southern District of New York in United States v. King, no opinion filed, decided December 5, 1911.
However reprehensible the conduct of the defendant may have been, such conduct does not fall within the purview of this statute; and the demurrer must therefore be 'sustained, and the defendant discharged. It is so ordered.