UNITED STATES ". RHODES,
431
and was not,by the process of grinding, thrown outofthe list of enumerated articles, on which a specific duty is imposed, into the doubtful category ohinenumeratedarticles provided for by l:leCtion 2513. The issue is found for the defendant.
UNITED STATES t1. RHOD· · (Jourt,
w:
D. MillO'IWi. II. D. lanuary, 1887.)
§ 5488.. AD in4ictment charging the defendant with. making a false deposition In order to another to obtain pa,Yment of a fraudulent pension claim, In violation of section 5438 Of the Revised Statutes of the United States, need . ,. not allege that the fals6'deposition was ever used or attempted to be used, 'or · setout the fact that the claun had been presented and was pending before the ..governlP-ent at the time the deposition was
J'BAtJ1)1J'LJmT P.u'UOB OLAIX-FAL8B DBP08IT10.-hroIC'l'lQlft-RBT.
ST. U.8.
mad".
,
Indictment under Re... ·St. U. S. § 5438, for false affidavit to pension to . "M; E. Benton, for the Unlted Statea. Dda:TI4Jj Boyd, for defendant. l3 ,'J. AHbe Se}>temberterm, 1886, of the United States disthe Eastern division of the Western district ofMissouri, Thomas. W. Rhodes, under 5438 of the J:tevised Statutes..Q( the Vnfted States.. LSOIDuch of thlssection as refers to the charges against him is as follows:
nEwn
person wbo makes 9r causes to be made, or presents or causes to be 'pl"eselitei:I; for payment or .pprovlI.l, to or by any: person or officer in the 'civil, militaty,or naval service Of the United States·.any claim upon 01' against the ,government of tbe United States, or any departtJ1ent or officer thereof, kno.wiog such claim to be fallile, fictitious, or fraudulent, or who, for 1!he purpose .ofobtainiJ;lg,. or aiding. j;o obtain the payment or .apPJt0val of such claim, or to be made or used. any false bill, voucher, claim, certiftc,ate, affidavit, or deposition, knOWing the slime. to -eortta:ill any fraudulent l)rfiCtltious statementot entry, shall be imprisoned HAt hard labor for not less thlln'one nor moretban five years, orllned not leu ·than81,OOOnor more than $5,000.
The indictment contained 10·counts. The following is a copy of each -dount,except the date when the alleged affidavit was made, eaoh count .coveting a different date: UnUed,State8 of America,' Eastern Dt'Otst01& of the Wutern D£Btrlct ,of Mts. .
mtoN (j1l'Tlm Wl!'.STEBtfDtsTRIoT OF MISSOUkI-Septembel' Term. 1886. The ·graild jurors .of the 'United States of America duly cbosen; selected, 'impaneled, sworn, and charged to .inquire of and concerning oriIx1es and ofEastern ,of the .Western district: of Misso;uri·· on their -oaths ,present that oil tbe. eIeventhdar.of June, A. D.U!85, attbe said East4ivlsiol1 of. . . the Westefn'district otMissoutl, one , to, .'.
'INTHICDISTRICT COunT OFTnE UNITED STATES FOR THE EASTERN DI-
.ern
.
gether \yUb one Minerva J. Rhodes and an unknown female person, who then and We're-represented herself to be one Tibatha McDaniel, widow of W. E. McDaniat;.deceased,late a privatein Company C of the sixteenthTegiment of illinois volunteers, and as such wiq,o;W entitled to a pension from the United States of America; all and each appeared before one William D. Steele, a notary puolic, and as such authorizedb-y,the laws of the United States to admin· ister oaths; and the said unknown person then and there signed a certain pension claim and voucher .as, the wiqow of said William E. McDaniel. and by the name of Tibatha McDaniei,and under which was printed the follow· lng deposition, viz.: "We, undersigned witnesses, do solemnly swear that we are well lacq"tiainted with the' a1J(l've'-named pensioner, [meaning thereby the said unknown person, who had, as aforesaid, signed the name Tibatha MdDaniel;Tthatshe is the identictd,personshe representsheraelf to be; and ,that to ledge .s4e bas not re.married sjnce death ,oflier late ,tluil,t our acquamtaucewlth her IS such if xesuflledmairiage the fact woWd have known to us. " \Vl1ich deposition was #181); and there signed by the said Thomas W. Rhodell.·, and thesaid'ThomasW. RhOdes, being then and there sworn by l;he said William D. Steele,'Whow6S"ll: notary, as aforesaid, dUly authorized to administer oaths in that behalf, and having taken upon himself his cor· :poral oath:, d1drthful and'there ,ulilaw{ully llnqswear the matters and things set forth in said t;rue; ,1.n truth and in fact said unknown so r,epresenhng herself tobe McDaniel, the widow of said WilllllmE.. McDaniel, 'was not·. as the sald Thomas W. Rhodes knew. the widow of the,saidWilUamE. McDaniel. And so' .the' jurors, .UROll ,do ljtay th!tthe, the said 'l'homas W:.:RbodllS/ theJl ;llnq thereby, for the purpose of aiding to obtain, the clallll s,uch false voucher, unlawfully and lll;ike,a,:talse manner and forlIl aforesaid, contrary to the form of the statute ihsuch case made,atid provided, and against the peace and dignity of said United ,T.he to indietm(lnt, because (1) the authorityo{ thEl alleged nota,l,'y public an oath does not ap· pear; (2) there ate no allegations stating ,when or where the pretended oath wasadministeredartd deposition made; (3) it does not appear that a false claim wtlsrnade upon oraga.irist the' government of the United "States; (4) U"i¬ alleged that,ll WlJ,iPlwas made upon the govel'Ilment for approval; (5) it isnot alleged that .,the false depDsition was made t<tobtain, or aid in ob:taining, the payment or approval of a false claim made upon the government of the ,1IJpitedStates,for payment or approylll; (6) it is not alleged that said "pepositioJ;l.wll.s,used to obtain or"aid in obtaining, the payment or approval of such a claim. . . The1.:irst,twoob:jections. may oOn a Both time and place are averred, and it is that the notlirJ public was . Neither., his. comm-ission nor authority need be.set"out in full. Section 5396, Rev. St. U. S.Notaries public .Qreappoiutedbythe states·, and the;act of congress gives them authority ·toadnliitd$ter;oatlrs; Section' 177iS,Rev. St.' U. S·· ,It is true that their '; Iiinited,'terHtorially,artd1th,at a notary public appointed by n1'ay in Missoun; but, If the officer be of a claSs havmg generally authorIty to ad-
is.
UNITED STATES V. RHODES.
433
minister oaths, the express language of section 5396 is that it is sufficient to name the officer, and aver that he was authorized, Without setting out his special authority or commission. The other objections maybe considered together. It is obvious that the section quoted contemplates two classes of crime, one the making or presenting of a false claiIll, arid the other the making of a false affidavit or deposition for thepurpose of obtaining, or aiding to obtain, payment or approval of a false claim. The offense in the case at bar belongs to the latter class. Now, the argument of the learned counsel for defendant runs along two propositions: First, that it is not averred that the was ever \lsed, or attempted to be used, and therefore tlnn'Elwas only a preparation'for and not the commission of an offense. Dwar. St. 144;3 Lawson, Crim. Def. 647;) 8econd,there must Claim in support of which the false deposition is used, or intended to be used, and that to constitute a false claim there must be's demand presented, apdtherefore that the indictment is faulty in not setting out .in full the nature of the false claim, and before whom and when presented. U. S. v. Mukell, 15 Fed. Rep. 369. ! With regard to the tirstproposition there can be but little dOUbt. Be,),'.ond q,ucsUon, many things may be done with a view to the commissionbhrime ,which do not constitute a crime, or even an attempt to comm1taot7-tb'e, and whiQh are but mere preparationstberefor, and not within the reach of Pllnitive law. But it is clearly within legislative power to make criminal and punish as crime any overt act in itself wrong and done with theintentofaiding in the'accomplishment of some well-understood and already defined crime or recognized fraud. Thus congress has declared that the mere making of counterfeit money is a crime, although no intent be proved to ever pass or use a dollar. So here it was declared that the mere making of a false deposition, with the specified wrongful purpose, is a crime; and it is not necessary to allege or prove that such false deposition was in fact ever used, or attempted to be used. This is not an attempt to punish a mere criminal intent. It is the punishment of a wrongful act done with criminal intent. It intl;lrcepts the,offender before the full accomplishment of the wrong intended, and punishes' him for a wrongfultJ,ct done in furtherancethereof; . 1'h'e otMrproposition ptesents a matter of more difficulty. Toconstitute the crime charged there must be a false claim, a false deposition t and an illtenttousethe latter in obtaining, or aiding to obtain, the payment or approval of the former. This is clear. But is it'necessary that fltlse clahn, be one already presented, and pending before thegoverIlment, or some officer thereof?U'he language of the section does not so imply. Twooij'enses,asJieretofore st==-ted,are provided for. Whoever makes. or presents, for or approval, a false claim is denounced by one part of the section. Clearly, the word" claim" is not here used in ofa demand already theretoforE': presented. It a,demand, then knowll to be wrongful, and the act of. presenting i1'in the first instance is denounced as a crime. And the further v.30F.no.6-28
434
FEDER.\L REPORTER.
language is "such and denounces the making of a false ,fqr the purpose of obtaining the payment or approval of such a claim. Is the word "claim" used in the same sense in this part of ,the section, or is it narrowed and limited so as to refer only to such daimsas have been already,presented, and are pending for action? and ordinarily the same meaning would he understood. The.Cfl'Be cited, U. S. v. Mi8kell,8Wpra, does not decide anything to the contra,ry. It simply holds that the claim must be false, as well as the or deposition, and that a false affidavit to sustain a just and true ,claim is not within the denunciation of the section. , Nor is there any reason, in morals or law for ,thus narrowing the meaning. He who makes a false deposition to-day {<;Ir the purpose of obtaining the approval or Payment of a false, claim fo be, presented" to-morrow deserves punishment, aa,justly as he who makes a like deposition in aupport of such a ,, , . claim,presented yesterday. Finally,.it may be remark6d that it is clearly charged t that the claim was falsB,;, t,hat the depositioDwas false. ,qf the falsity is averred, as well as the purpose to use the false deposition in obtaining the false claim. ,While a defendant ,should be formed, in the, in,dictment of the exact and full chlll'gemade against him, or imperfection in z.natter of form onlY,---and thisi,J:lcludes yet the not teqdto,hisprejudice, will St.V.,S.; U. S. v.Notdks,l U. S.v.J.aclrson" Fed,. 502. " to quash will over,ruled. ," , .; I,.'
FrUEYt1. LITTLEFrELD SfOVE Co. and another.
:,. ,<awcuit, Gourt, No D· , . .: i.
"
, -
York. . .
2,: i887:) i ' ,
The first claim of letters patent No. 236,425, granted to Giles E. Filley, for an in cooking-stoves, by having one or both 0 the,stove-doors provided 'With or'linely"perforated metal, the second claIm of the same patent having the so aE!tocreate a draught, gauze pxte!lding up 8!l"d, down the upper ,part,andll-Iso up and down the!owerpart, of the door, for the purpose described, valid. 8. SAME__ ' . The seC'Onil'claim of letters patent No. 246,606. granted to Giles E. Filley, :September, g; 1881, for an improY,emerlt in doors of stove-ovens, having a register andga1Jze, the arranged and extended so as to create a drllught of ,ail' through the stOve, IS valid; but the :tl.rst claim of the same plitedt; proViding for 8, register Irtranged and ext,ended through the main portion of thedo'or. is void for want of invimtion. It cannot be construed,to embrace tAe register in COIll,binatioll with the gauze. ¥ it would then be a mere of the second claim;' and it being admitted that, prior to the invention; a small register had been used in oven-doors, there could be no illventidnJn siIllply placing a large register in place of smaller one, '
INFRl1q'GEME:NT , ,
IMPRo-JEn' COOKING-STOVES-
ana