Where an act of Congress declared that if any person
"shall transmit to, or present at, or cause or procure to be
transmitted to, or presented at, any office or officer of the
government of the United States any deed, power of attorney, order,
certificate, receipt, or other writing in support of or in relation
to any account or claim with intent to defraud the United States,
knowing the same to be false, altered, forged, or counterfeited,
every such person shall be deemed and adjudged guilty of
felony,"
&c., it was sufficient that the indictment charged the act
to have been done "with intent to defraud the United States,"
without also charging that it was done feloniously or with a
"felonious intent."
Where the act done was the transmission to the Commissioner of
Pensions of an affidavit which was false in the facts which it
professed to narrate, although sworn to by a person who really
existed, and the person who transmitted it knew that it was false,
it was an offense within the meaning of the act of Congress.
This was an indictment under the Act of March 3, 1823, entitled
"An act for the punishment of frauds committed on the government of
the United States." 3 Stat. 771, 772.
By the first section it is enacted
"That if any person or persons shall falsely make, alter, forge,
or counterfeit or cause or procure to be falsely made, altered,
forged, or counterfeited, or willingly aid or assist 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
or persons, either directly or indirectly, to obtain or receive
from the United States or any of its officers or agents any sum or
sums of money, or shall utter or publish as true or cause to be
uttered or published as true any such false, forged, altered, or
counterfeited deed, power of attorney, order, certificate, receipt,
or other writing as aforesaid with intent to defraud the United
States, knowing the same to be false, altered, forged, or
counterfeited, or shall transmit to or present at or cause or
procure to be transmitted to or presented at any office or officer
of the government of the United States any deed, power of attorney,
order, certificate, receipt, or other writing in support of or in
relation to any account or claim with intent to defraud the United
States, knowing the same to be false, altered, forged, or
counterfeited, every such person shall be deemed and adjudged
guilty of felony, and being thereof duly convicted, shall be
sentenced to be imprisoned and kept at hard labor for a period not
less than one year nor more than ten years, or shall be imprisoned
not exceeding five years, and fined not exceeding one thousand
dollars. "
Page 49 U. S. 42
The first count of the indictment charged that one David
Goodhard was a claimant for a revolutionary pension, and did claim
and receive the same; and that "Thomas Staats, Jr.," contriving and
intending to injure and defraud the said United States of America,
and to cause and induce the said United States of America to pay
unto the said David Goodhard divers large sums of money, did cause
and procure to be transmitted to the commissioner of Pensions of
the said United States of America, and to be presented at the
office of the said commissioner, a certain writing, purporting to
be made, subscribed, and sworn to by one Benjamin Chadsey. After
setting forth the contents of the paper, it proceeded that the said
Staats, "knowing the said affidavit to be false and untrue," and
that Benjamin Chadsey did not know what had been stated in the
paper,
"did transmit and did cause and procure to be transmitted to the
said commissioner of Pensions of the said United States of America,
the said false writing and affidavit, as a true writing in support
of the aforesaid claim of the said David Goodhard, with intent to
defraud the United States of America."
The second count charged that David Goodhard was a claimant for
divers sums of money as a pensioner, the that in support of the
said claim one William Bowsman did subscribe and make oath unto a
certain affidavit therein mentioned, whereas in truth Bowsman did
not know what was so set forth.
"And the said Thomas Staats, Jr., well knowing the premises, and
well knowing that the said affidavit or writing was false and
untrue, . . . did cause and procure to be transmitted and presented
to the commissioner of Pensions of the said United States of
America, the said false and untrue affidavit or writing as a true
writing, in support of the claim of the said David Goodhard, with
intent to defraud the said United States of America."
The accused was found guilty. A motion was afterwards made to
arrest the judgment upon the verdict, when the judges were opposed
in opinion on the following questions:
1. Whether the said indictment is fatally defective for the
reason that the acts charged to have been committed by the said
defendant are not in said indictment charged to have been committed
feloniously or with a felonious intent?
2. Whether the acts charged in the said indictment to have been
committed by the defendant do constitute an offense within the
provisions of the first section of the Act of Congress, approved
March 3, 1823, entitled "An act for the punishment of frauds
committed on the government of the United States?"
Page 49 U. S. 43
MR. JUSTICE NELSON delivered the opinion of the Court.
The prisoner was indicted under the third section of the Act of
Congress, passed 3 March, 1823, entitled "An act for the punishment
of frauds committed on the government of the United States."
The section provides that if any person shall falsely make,
alter, forge, or counterfeit &c. any deed, power of attorney,
order, certificate, receipt, or other writing for the purpose of
obtaining or receiving or of enabling any other person or persons,
either directly or indirectly, to obtain or receive from the United
States or any of their officers or agents any sum or sums of money
or shall utter or publish as true or cause to be uttered or
published as true any false, forged, altered or counterfeit deed
&c. with intent to defraud the United States, knowing the same
to be false, forged, or counterfeit, or shall transmit to, or
present at or cause or procure to be transmitted to or presented at
any office or officer of the government of the United States any
deed, power of attorney, order, certificate, receipt, or other
writing in support of or in relation to any account or claim with
intent to defraud the United States, knowing the same to be false,
altered, forged, or counterfeited, every such person shall be
deemed and adjudged guilty of felony &c.
The indictment contains two counts. The first charges that one
David Goodhard was an applicant for a pension under the Act of
Congress entitled, "An act supplementary to the act for the relief
of certain officers and soldiers of the Revolution," passed 7 June,
1832, and that Thomas Staats, Jr., the prisoner, contriving and
intending to defraud the United States and to cause and to induce
the same to pay to the said David divers large sums of money, did
cause and procure to be transmitted to the commissioner of
Pensions, and to be presented at the office of the said
commissioner, a certain writing purporting to be made, subscribed,
and sworn to, by one Benjamin Chadsey &c., in which said
writing, it was alleged and declared,
Page 49 U. S. 44
(setting out the contents of the affidavit) the said Thomas
Staats, Jr., knowing the said affidavit to be false and untrue
&c., and did cause and procure to be transmitted to the said
commissioner of Pensions the said false writing and affidavit, as a
true writing, in support of the aforesaid application of the said
David, with intent to defraud the United States.
The second count is substantially like the first, except that it
avers the false affidavit to have been made by one William
Bowsman.
The prisoner, on being arraigned, pleaded not guilty, and, on
the trial of the issue, was convicted, whereupon his counsel moved
in arrest of judgment; upon whose motion the following questions
arose, upon which the opinions of the judges were opposed, and the
questions certified to this Court:
1. Whether the said indictment is defective for the reason that
the acts charged to have been committed by the defendant are not
charged to have been committed feloniously or with a felonious
intent, and,
2. Whether the acts charged in the said indictment to have been
committed by the defendant do constitute an offense within the
provisions of the first section of the act of Congress above
recited.
1. In respect to the first question certified. The general rule
is that the charge must be laid in the indictment so as to bring
the case within the description of the offense as given in the
statute, alleging distinctly all the essential requisites that
constitute it. Nothing is be left to implication or intendment.
Generally speaking, it is sufficient to pursue the words of the
act, but if in pursuing them there should be any ambiguity or
uncertainty in charging the offense, the pleader should regard the
substance and legal effect of the enactment. And when words or
terms of art are used in the description that have a technical
meaning at common law, these should be followed, being the only
terms to express in apt and legal language the nature and character
of the crime.
In all cases of felonies at common law, and some also by
statute, the felonious intent is deemed an essential ingredient in
constituting the offense, and hence the indictment will be
defective even after verdict unless the intent is averred. The rule
has been adhered to with great strictness, and properly so, where
this intent is a material element of the crime.
Sir William Blackstone observes that the term felony originally
denoted the penal consequences of the crime, namely the forfeiture
of the lands and goods; but that, by long use, it came, at last, to
signify the actual crime committed.
Page 49 U. S. 45
He further remarks that the idea of felony is so generally
connected with that of capital punishment that it is difficult to
separate them, and that the interpretation of the law conforms to
that usage, and therefore, if a statute makes any new offense
felony, the law implies that it shall be punished with death --
that is, by hanging as well as by forfeiture -- unless the offender
prays the benefit of clergy. 4 Bl.Com. 97, Wend. ed.
This view accounts for the necessity of the averment of a
felonious intent in all indictments for felony at common law, and
also in many cases when made so by statute, because if it is used,
in the sense of the law, to denote the actual crime itself, the
felonious intent becomes an essential ingredient to constitute it.
The term signifying the crime committed, and not the degree of
punishment, the felonious intent is of the essence of the offense
-- as much so as the intent to maim, or disfigure, in the case of
mayhem, or to defraud, in the case of forgery, are essential
ingredients in constituting these several offenses.
But in cases where this felonious intent constitutes no part of
the crime, that being complete, under the statute, without it, and
depending upon another and different criminal intent, the rule can
have no application in reason, however it may be upon
authority.
The statute upon which the indictment in question is founded
describes the several acts which make up the offense, and then
declares the person to be guilty of felony, punishable by fine and
imprisonment. The transmission or presentation of any deed, or
other writing, to any office or officer of the government, in
support of, or in relation to, any account or claim, with the
intent to defraud the United States, knowing the same to be false,
are the only essential ingredients. The felonious intent is no part
of the description, as the offense is complete without it. Felony
is the conclusion of law from the acts done with the intent
described; and makes part of the punishment; as, in the eye of the
common law, the prisoner thereby becomes infamous, and
disfranchised. These consequences may not follow, legally speaking,
in a government where the common law does not prevail, but the
moral degradation attaches to the punishment actually
inflicted.
This question arose in a case before Park, J., on the Northern
Circuit, in 1831, on the trial of an indictment for burning stacks
of grain, which is made felony by the 22 & 23 Car. II. The
second count charges the prisoner with aiding and abetting, and an
objection was taken, that the indictment should have averred that
he was feloniously present aiding
Page 49 U. S. 46
and abetting. Park, J., was inclined to think the objection
fatal; but allowed the trial to proceed, and the prisoner was
acquitted on the facts.
Canon's Case, 1 Lewin's Northern
Circuit 227.
It again arose before Lord Lyndhurst, C.B., at the Durham
Assizes, in 1834, on an indictment under the Statute of Mayhem, 9
Geo. IV., ch. 31, § 2. An objection was taken after conviction
that the indictment did not allege that the prisoner upon the
prosecution feloniously did make an assault &c., but it was
held that, as the indictment described the offense in the words or
terms of the statute, it was sufficient. Deacon on Cr.Law, Suppt.
1652, 1681,
Rex v. Thomas Liddle.
This statute, after describing the acts constituting the
offense, concludes, like the one before us, that every such person
shall be guilty of felony, and, on conviction, shall suffer death.
The decision therefore bears directly upon the question in hand,
and, as the principle seems to have been given up in the country
from whence it was derived, and, at best, is here but the merest
technicality, it is difficult to perceive any ground for still
giving effect to it. It would be otherwise, if the felonious intent
was descriptive of the offense, and not simply of the
punishment.
We shall therefore direct that it be certified to the court
below that the indictment is not fatally defective, for the reason
the acts charged to have been committed by the defendant are not
charged to have been committed feloniously or with a felonious
intent.
2. With respect to the second question certified.
The court are of opinion that the offense charged in the
indictment comes within the statute.
The only doubt that can be raised is whether the writing
transmitted or presented to the commissioner in support of the
claim for a pension should not, within the meaning of the statute,
be an instrument forged, or counterfeited, in the technical sense
of the term, and not one genuine as to the execution, but false as
it respects the facts embodied in it.
The instruments referred to in the first part of the section,
the false making or forging of which, with the intent stated, is
made an offense, probably are forged instruments in a strict
technical sense, and there is force, therefore, in the argument,
that the subsequent clause, making the transmission or presentation
of deeds or other writings to an officer of the government a
similar offense, and reference to the same description of
instruments.
Page 49 U. S. 47
But this is by no means a necessary conclusion upon the words of
the statute. Indeed, upon this construction, it is not easy to see
the materiality of the clause, because the uttering and publishing
of the forged instruments mentioned in the first clause, as true,
is made an offense, the same as the forging, and it is quite clear
that the acts provided against in the subsequent clause amount to
an uttering and publishing. If restrained, therefore, to forged
instruments, the clause would seem to be unnecessary.
The deeds and other writings mentioned are not connected with
those in the preceding paragraph, as would have been natural, and
almost of course, if intended to describe similar instruments. The
language is "any deed, power of attorney," &c., not, the
aforesaid deed, which words must be in effect interpolated, upon
the construction contended for.
The clause therefore may well be regarded as providing for a
distinct and independent offense -- one essential to the protection
of the government against fraudulent claims, and which consists in
the transmission or presentation of false or counterfeit papers to
any officers of the government in support of an account or claim,
with intent to defraud.
The case is within the mischief intended to be guarded against;
and, also, within the words; and we think the considerations urged,
founded upon the form and structure of the general provision,
though plausible, and calculated to excite doubts, not sufficient
to take it out of them.
A genuine instrument containing a false statement of facts, used
in support of a claim, the party knowing it to be false, and using
it with the intent to defraud, presents a case not distinguishable
in principle, or in turpitude, or in its mischievous effects, from
one in which every part of the instrument is fabricated, and when
the one is as fully within the words of the statute as the other,
we may well suppose that it was intended to embrace it.
We shall direct, therefore, that it be certified to the court
below, that the acts charged in the said instrument to have been
committed by the defendant do constitute an offense within the
provisions of the act above referred to.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Northern
District of New York, and on the points and questions on which the
judges of the said circuit court were opposed in opinion, and which
were certified to this Court for its
Page 49 U. S. 48
opinion, agreeably to the act of Congress in such case made and
provided, and was argued by counsel. On consideration whereof, it
is the opinion of this Court:
1st. That the indictment is not fatally defective for the reason
the acts charged to have been committed by the defendant are not
charged to have been committed feloniously, or with a felonious
intent, and,
2d. That the acts charged in the said indictment to have been
committed by the defendant do constitute an offense within the
provisions of the first section of the act of Congress, approved
March 3, 1823, entitled "An act for the punishment of frauds
committed on the government of the United States." Whereupon it is
now here ordered and adjudged by this Court, that it be so
certified to the said circuit court.
