28 F. Cas. 597 | U.S. Circuit Court for the District of Northern New York | 1859
The questions raised by the demurrer to the indictment are substantially the same in regard to each count. The papers referred to, and set forth, in the two counts are the same, and, in respect to each, it was argued, that the word “claim,” as used in the statute, can have reference only to a demand for money, and does not embrace a claim for bounty land. It is conceded that, if the word “claim” stood alone, it might apply to a demand for bounty land, but that, as used in the statute, in connection with the word “account,” it is entirely inapplicable to a claim of the kind mentioned in the indictment.
There can be no doubt that the word “claim,” standing by itself, and unrestricted by the use of the word “account,” and the other language of the section in which it is found, and with which it is connected, would embrace a claim for bounty land, as well as a claim for money; and I do not see that the connection in which it is used, or the other parts of the section in which it is found, have, in any measure, restricted its ordinary meaning, or indicated an intention not to embrace within the statute a claim for bounty land, as weU as oDe for a pension, or for a sum of money due under a contract with the government. Indeed, I think the difference in the terms used in the different portions of this section, and the addition of the word “claim,” in that portion of the section upon which this indictment is founded, afford strong evidence that claims- of this description are intended to be embraced. The first part of the section is, by its terms, expressly limited to acts done for the purpose of obtaining or receiving, or of enabling others to obtain or receive, “any sum or sums' of money;” but, in the portion of the section under which this indictment has been found, the language is changed, and the transmitting, &c., of any
It was also insisted, that the indictment was bad, because the claim or declaration of the supposed applicant, set out in full in each count of the indictment, does not state all the facts necessary to be established in order to entitle the party to bounty land under the act therein referred to. I cannot think that this objection is well taken. The declaration states facts neeessary to be stated in order to obtain the examination of rolls, records, and other proofs in the pension office, which may show that the applicant is entitled to the bounty land claimed, and is believed to be in the general form required at the pension office; but it does not state specifically that the applicant was mustered or called into the service of the United States, or paid by the United States, nor does it state other facts necessary to be established by record proof or otherwise, before the claim could be properly allowed. Such defects, and further proof, when the records are insufficient, are frequently supplied by supplementary declarations or affidavits, and the omission to make a false or forged declaration perfect in those respects, does not, in my judgment, change the case. If transmitted to the pension office for the purpose of obtaining the allowance of the claim for the bounty land applied for, it is not the less transmitted in relation to and in support of a claim against the government, because it happens to be insufficient or defective, whether it be sent under the supposition that it is in itself sufficient, or with a knowledge of its insufficiency, and with the intention to supply its defects by supplementary or additional papers, or under the expectation that the pension office records will furnish all the other evidence required Besides, I am inclined to think that the declaration set out in the indictment would have been held sufficient by the pension office, if the rolls of the company or regiment therein referred to, in possession of the proper officer at Washington, had established the fact that the applicant had served as stated, and had been mustered into the service of the United States, and paid by its officers for such service as would entitle him to the bounty land desired. If the construction insisted upon by the learned counsel for the defendant should be adopted, it would be easy to defraud the United States, without danger of conviction, under this statute, because each declaration, and every subsequent paper separately transmitted, might be, in itself, insufficient, whilst the papers transmitted at different times, might, when taken together, fully establish the claim made.
The demurrer to the indictment must be overruled, but the defendant will be allowed to plead at the present term.