788';'
nD:tlU,L . :REPORT£R,vol.
60.
UNITED STATES v. MOORE et at. (DIstrIct Cotirt,N.D. New York. April 2, 1894.) 1. FORGERy-REV. ST. § 54el-FALSE NOTARIAL CERTIFICATE. The makIng, or procurlng.to.be made, an affidavit wIth the false statements, . the pensionclalmlJJl.t and Id4;IDtIfying witneases appeared 00fore the ,l,a0tary, and that thE' alleged a.1Ilants subscrIbed their names and were li!worn In his where. all its 9lgnatures are genuine, and no altered, tor'ged, or counterle1ted, is not Indictable under Rev; 'St. § 1>421, which'provides a punishment for every .person who or procures:to be "falsely made," a writing, etc. 2. SAME"'7lliDICTMENT. . An indictment for making, or procuring to be made, a false affidavit, must allege specifically In What the falsIty consIsts, and connect defendant thereWith. .
At Indictment of W. Bowen Moore and Achille J. Oishei under Rev. St. § 5421. Heard on demurrer. WilliamF. Mackey, Asst. U. S. Dist. Atty., for the United States. John Laughlin, for Moore. George W. Cothran, for Oishei OOXE, District Judge. It is agreed by all that the indictment is founded upon the ftrstparagraph of section 5421, of the Revised Statutes of the United States, which is as follows: "Every person who falsely. mUllS, alters, fOl'ges, or counterfeits; or causes or procures to be falsely made, altered, forged, or counterfeited; or willingly aids or assists .in the false making, altering, forging, or counterfeiting, any deed, power of attorney, order, certificate, receipt, or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States, or any of their omcers Ol' agents, any sum of money;" shall be imprisoned, etc.
Law.
The indictment alleges that on the 24th of October, 1892, at Buffalo, the defendants "did then and there knowingly, wrongfully and unlawfully falsely make and willfully aid and assist in the false making of a certain affidavit and writing for the purpose of enabling another person, to Wit, Christian Neusel, to obtain and receive from. the United States of America a certain sum of money, to the jurors aforesaid unknown, then and there claimed to be due to the said Ohristian Neusel on account of his military services and disabilities' incurred" during the war of the Rebellion. The indictment then sets out the affidavit in full. It contains the necessary facts to enable the applicant to obtain a pension. It is signed by him and by two identifying witnesses and states that all of the afliants appeared before the subscribing notary public. It also contains a jurat signed by "A.J. Oishei,Notary Public," in which he certifies that the affidavit was subscribed and sworn to before him, and that its contents were fully made known and
UNITED STATES fl. MOORE.
739
explained to the applicant and witnesses before they swore to it. The indictment then procPeds to point out that the affidavit was falsely made for the reason that the claimant and the identifying witnesses did not appear and were not sworn before the defendant Oishei. The defendants demur on the ground that the indictment does not state an offense of which the court has jurisdiction. The authorities are unanimous in holding that the first paragraph of section 5421 is a forgery and not a perjury statute. It punishes one who falsely makes an affidavit and not one who makes a false affidavit. The words of the statute are ejusdem generis and are the words usually adopted to describe the crime of forgery. "False making" may almost be said to be synonymous with "forging." U. S. v. Staats, 8 How. 41; U. S. v. Barney, 5 BIatchf. 294, Fed. Cas. No. 14,524; U. S. v. Wentworth, 11 Fed. 52; U. S. v. Reese, 4 Sawy.· 629, Fed. Oas. No. 16,138; U. S. v. Cameron, 3 Dak. 141, 13 N. W. 561; State v. Willson, 28 Minn. 52, 9 N. W. 28; Mann v. People, 15 Hun, 155; State v. Young, 46 N. H.266; Oom. V. Baldwin, 11 Gray, 197; Barb. Or. Law, 97; Whart. Cr. Law, § 653; Pen. Oode N. Y. § 520. It is clear then, if the indictment merely charges the defendants with making an affidavit which contains a false statement of fact, that the offense cannot be punished under the paragraph quoted. For reasons stated hereafter it is thought that the indictment is defective under any construction of the statute, but assuming now that it contains a full and clear statement of all the acts of omission and commission attending the fabrication of the affidavit and jurat, it amounts only to an averment that the notarial certificate is false. The names signed to the affidavit and jurat are all genuine. No part of the affidavit has been altered, forged or counterfeited. The vice of the affidavit is that the statements that the claimant appeared before the notary, that the identifying witnesses appeared before the notary and that all of the alleged affiants subscribed their names and were sworn in the presence of the notary, are fc\lse. In short, the certificate contains a number of false statements; it is a false certificate, but not a forged certificate. No authority has been cited or found by the court holding that a notary who signs a certificate containing untruthful statements is guilty under a forgery statute. The statute must be construed strictly, until such authority is presented, I shall hold that the paragraph quoted does not cover such an offense. But in any view of the law the indictment is defective. It cannot be sustained even if it be assumed that the statute covers an affidavit which contains false statements of fact. The affidavit in controversy is on its face sufficient in substance and form. It is an elementary rule of criminal pleading that it is not enough to set out a lengthy instrument and allege generally that it is false. U. S. V. Corbin, 11 Fed. 238; Whart. Or. Law, § 1300. The defendant is entitled to know wherein it is alleged to be false in order that he may be prepared to meet the charge at the trial. Recognizing the force of this rule the pleader proceeds to point out the particular omission which constitutes the alleged false making, viz.,
740
FEDERAL REPORTER,
vol. 60.
that the claimant and witnesses did not appear and were not Ij)worn,-befol'e the defendant .Oishei. The indictment is silent as to any act done by the defendant Moore, much less as to any un· lawfulact. There is nothing in the affidavit itself which shows that lle drew it, or that he was present at its fictitious verification. Indeed, the falsity of· the affidavit is predicated of an act of the defendant· Gishet. If the affidavit is false only because Oishei. ;made a. false certUlcate it is manifest that Moore did not make it . false. The test is this: If the United States, proves just what it has in this indictment the court will be com· to discharge the' defendant Moore. It can prove no more than it has alleged and,jt has alleged nOi act of his which made or tended to make theaftidavit false. As to the defendant Oishei there is, perhaps, more doubt. The allegation as to him is that the witnesses did not appear before him. There is, however, no allegation that he WllS a notary public, that he signed the jurat or caused it to be signeQ.Ol' knew that it had been signed, or that "A. J ·. Oishei," whose ,name appears at the end of the affidavit, is the.:defendant. It is true that the indictment charges that witnessel'lwd .n()t appear before the defendant, but there is no allegation, so, far as this part. of "the indictment is concerned, that the defendant 1l.imse\f did any act whatever. For aught that appearsw the pontrary:theentire affidavit may have been drawn defendantOishei never having seen it by or tOuched it with a pen. It followSi that the demurrer must be sustained. UNITED STATES v. MOORE. (District Court, N. D. New York; April 2, 1894.) WUllaII\.lJ'. Mttcke"Asst.U. S. Dist. Atty., for the United States. John Laughl1n,. for Moore.
COXE, District Judge. The decision in the preceding .cause disposes of this causl!! also. The demurr,er is sustained.
UNITED STATES v. BEATTY.
(Oircult Court, D. Vermont. :March 8, 1894.) 1. MAILS-USE 0:8', TO DEFRAUD-FALSE PRETENSES-INDICTMENT.
An. indictment for using the malls in furtllerance of a scheme to obtain monc;Jy by false pretenses alleged that defendant sent to one S. a circular wbich was set out in substance, and which stated that an organ of particular description, worth $150,' would be sent to him for $33, warranted for teli years, and to be returned within three years if not satisfactory, ihwhich event the money would be refunded. The indictment thenalleged,in that defendant intended to induce S. to believe that an organ would be delivered to him of the character, and upon the terms" described, whereas he did not intend to perform the representations contained in said circular, but did intend to obtain the said sum of $33 by means of the said false pretenses; 'lIeld, that the scheme was set out with sufficient paxticularity anddetall.
