142
FEDERAL REPORTER.
raises the question as to the construction of these provisions of the statutes. Usually, a contract made by a minor may be avoided at his election, provided it is done before ratifying it after he arrived at age. This, even at coniman law" he could not do When the contract was for his benefit. ·. are to be construed It is clear that congress provid¢d by. these sections that a minor under 16 years of age cannot be enlisted, done, it would be absolutely void,and he could not be held to service; but His also clear that if he be 16 years old he can legally' enlist. . Congr.ess, having so authOl'ized, makes such enlistment legal,andthereby confers capacity on such minor to make the contract of enlistment. If the relator was by the law made competent to enter into this contract when over 16 years of age, he cannot for himself avoid it. Section 1117, requiring the written consent of parents or guardians, when under 21 years of age, was for the benefit of such. parents, who might assert their right to his custody befote majority, and does not affect the capacity of the minor to bind himself. It can hardly be maintained that congress intended to authorize a minor 16 years of age to enlist in the military servioe, and, after having so enlisted, to desert the service at any time before arriving of age, at his will and pleasure. Under section 1117, he could only be taken from the service on the application of the parents or guardian entitled to his custody, to either the secretary war or through the instrumentality of the courts. In this construction of the statute lam borne out by several decisions of the courts. InreDavison, 21 Fed. Rep. 618;' U. S; v. Gibbon, 24 Fed. Rep. 135; The only case to the contrary cited ,is U. S. v. Hanchett, 18 Fed. Rep. 26:, where the judge did discharge the relator under his own appliilll,tionbefore he bfJCame 21 years of age. " The prayer of the petition is therefore denied, and he is remanded to the custody of the
UNITED STATES
V.
REIcHERT and others. GLOVER and others.
'ii.
(Gu'cuit Goure.D. Galifornia. September 5. 1887.)
1.
CONSPIR:4.0,"""" AGAINST UN!TBDS"'ATBS - WRATCONBTITUTBS....,. FRAUDULENT CLAI:M;S. j.. '., . .
Section5'loS. St." so far as it declares that every person who enters into any agreement,dombinatioil. or ·conspiracy to defraud the government of the United States. or anv department or officer thereof, by obtaining. or aiding to obtain, the l'asment or allowance of ans false or fraudnlentclaim, shall be punished WIthout requiring' any .act in of the conspiracy, is modified by section 5440, Rev. St.· as amended by the act of March 17, 1878. which declares that if two or more persons conspire either to commit any ·ofthe United States. orto defraud tJ;te l!nited States in any mannfJl'i·or,/ora'nY purpose, and oile or more ofsnch partIes do any act to effect the
ST4.T;E8
v.
REICIIERT.
143
, object, of allthepar,tiea to shall be liable the pe;naltysp'eclfied; so that a mer\3 conspIracy, Without some overt aCtm execution 'of it, is not an indictable offense. '2. SAME-INDICTMENT.
.s.
An indictment alleging a conspiracy, without allegi.ng the execution of any act to carry it into eJIect, is. ,therefore fatally defective.·
, Where an iRdictmen:t alleges as part of the conspiracy that a false. ficti· tious; and fraudulent claim was to be presented to the United States surveyor .' general for allowance. and payment, it should also allege that such officer was authorized to allow and approve the claim, and for, the omisllion of this aIle· glttionthe indictment is defective. ' SAME-ABBREVIATIONS OF WOllJ;lS IN INDlCTMENT-:"TlliRMS OF SCIENCE OR ART.
SAME-FRAUDULENT CLAIMS-PRESENTMENT TO SURVEYOR GENERAL.
·4.
In an indictment charging a conspiracy to procure the Il.llowance of a false and fraudulent claim forcompeosation for a survey of land claimed to have been made by defendant. a description of the property alleged to have been surveyed. and for which the fraudulent claim is charged to have been pre· sell.ttld,shouldbe mll,dein ordinary language. Ab'\lreviations of p,loyed by men of science arts will not answer, witllout full tiOn: of their meanIng in ordInary language. I>',
j'
,.
'.
Aftel" the demurrer to the plea in abatement in the case of United States 'v. Benson, 31 Fed. Rep. 896, and several other similar cases, including was sustained, and the defendants ordered to plead to the inthe dictments,' the defendants filed' a.. demurrer' to 'the indictments, and the t? the indictwept case argu;d. indict,other cases (14 m all) are substaJ;ltlally ahke, WIth the ex.ception of..the fourth count, hereafter mentioned. Each indictment has four counts: · The first count 'alleges that Theodore Reichert and the other are named, "hEiretofore, to-wit,on'the seventh"day of in the year oiiriLordone thousand eight hundred anll eighty-four, at the city and county of San Francisco, state and'district of California, or this honorable court, did unfawfully, corruptly, and combine, 'and agree 0gether, and with divers other 'persons 'to the said grand jurors unknown, to cornmit an offense against the United States, by knowingly making and causing 1;0 belnadea falfle, fictitious, and fraudulent clailiI upon and against'the United States, knowing, the same to be faJae, fictitious, and fraudulent, for the payment to them, and to divers other persons to the saidgrandju'fOl.'S a large sum of money, to-wit l the ,sum of :one,thousand .and, seventy-two dollars, DlOreor which ,said false, fictitious,. and fraudulent cla,im consistEld ,and WIlS to consist of a certain false,fictitious, _and survey oi certain public lands of the United ,Stat('ls, towit, the surveying,marking, and establishing the exteriodinesofTps. Rs, 21,22,23 E.; alld Tps. 5 N., Rs. 22 and 23 East M. D.M.,and in false, fictitious, and fraudulent field-notes of such false, fictitious, .and frau,dulent survey of said public lands of the United States; and which said false, fictitious, and fraudulent c1a,im, upon and against the U,nited States, based upon such false, fictitious, and fraudulent survey ,and field-notes thereof, WIlS designed and intended to be presented to the United States. surveyor general for California, for his allowancl;l and ap'proval, contrary to the form of the statutes of the United States in such
.,
'
.
of
1.44
case made and provided, and against the peace and dignity of the TJnited States: ii · The second count is sjmllar to the first, except that it alleges that the cqnspiracy was to commit an offense against the United by presenting and causing to be presented a false, fictitious, and fraudulent claim upon and against the United States, etc. The third count a:lleges (Jopspiracy to defraud the United States, but in other respects is simila:l'"to the first count. The fourth count alleges an act committed "in execution and in furtherance and pursuance of said unlawful and corruptcohspiracy," but does not what said "unlawful and corrupt conspiracy" was. , TheJaw on .w,liich the indictmentspufport to be founded is in section 5438'and section, 5440, as amended, of the Revised Statutes. Section .. . 5438 provides that"Every person who enters into any agreement, combination. or conspiracy to defraud the gdverDtnent of thetrnited:States, ()r any or officer thereof, by obtaining or aiding to obtain the payment or allowance of any false or fraudulent claim, shall be imprisoned at hard labor for not less than one nor more than five years, 01' fined not less than one thousand or more than fi'le: thoUlilanddollars." . . Section 5440,. as amended by the of May 17, 1879, provides:
"If two,or m'or!! persons conspire either to commit any offense against the United states or to defraud the Unitlid States in any manner,or for any purpose, :and one, or more of such partles do any act to effect the object of theconspiracy, all the: ,parties to such oonspiracy. shall be liable to a penalty of not more than ten dollars,or. t() imprisonment for not more than tW() years, or to both fine and imprisonment, iuthe discretion oBbe court." Yol21, St. p. 4. .
John T. Oas&y, U. S. Dist. Atty., for the United Statea. McAUister, Van Duser &; Eames, for defendants.
On the twenty-ninth of August the court gave its decision on .:the demurrer, pel' Mr. Justice FIELD, orally,asfollows: We :have had under consideration the demurrers to the several indictments .against' Reichert et al., for a conspiracy to defraud the United States,' or to commit some other offense against the United States, and we have come to the conclusion that all the indictments are fatally defective. Thefii'st and second counts in the indictment in the above case allege a c6nspiracyto commit an offense against the Unued States, but do not allege the performance of any act in furtherance of the conspiracy, :or, in the language ofthe statute, "any act to effect the object of the conspiracy;"nor :tio they allege that the surveyor general of the United States for Oltlifornia, to whoni the alleged fraudulent and fictitious claims were to be 'presented, was authorized to allow and apprr)Ve theln. The third . couht in the irtdictment alleges a conspiracy to difrattd the United States, ;bnt, like the other counts, 1ails to aver the performance of any aeL in
, UNITED STATltS ". REICHERT.
145
furtherance of conspira<ly, or that the United States surveyor general for California was authorized to allow and approve the claim which was to be presented to him. The fourth count alleges the performance of acts in furtherance of the "said unlawful and corrupt conspiracy," but does not set forth what the.said conspiracy w:as. No such direct reference to anyone of the preceding counts is made as to bring the conspiracy averred in one of them within the meaning of those terms. State v. Longley, 10 Ind. 484. The circuit judge is of opinion that the count is defective only in tbe last particular stated, namely, that it does not aver authority in the surveyor general to allow.and approve the claim which was to be presented to bim; and that where tbe charge is of a conspiracy to defraud the United State8,byobtaining or aiding to obtain the payment or allowance ofa and fmudtrlcllt claim, it is not necessary to aver theptirfobnance orany act in furtherance of the conspiracy. In this respect'I am, to agree with him. I am of opinion that section 5440 Rev. St., amended by the act oiMay 17, 1879, (21 St. 4,) qualifies the provisions of section 5438; and that a conspiracy to defraud the United States, or to commit any other offense against tbe United States, is not, of itself, .an indictable offense, unless the conspiracy be followed 'by same act in furtherance of it,-that is, to effect its object. Section 5440 applies to conspiracies to defraud the United States in any manner or for any purpose, and of course embraces the particular conspiracy mentioned in section 5438,-to defraudthe'governmentof the United States byuobtaining or aiding to obtain the payment or allQwance of any false or fraudulent claim." As, under section 5440, the conspiracy to defraud must be followed by some act to effect that object, to constitute a public offense, it would seem that, to the extent in which the section differs in that particular from the offense of defrauding the United States mentioned in the preceding section, (5438,) it must be held to qualify and amend that section. Were this not so, we should have a general provision that in case of a conspiracy to defmud the United States in any manner, or for any purpo8e, it would be necessary to show the doing' of .some act to effect its object by one or more of the conspirators, to constitute the offense, with a previous provision that, in case of a conspiracy to defraud the United States in a 8pecified way, there would be no necessity of showing any act to carry the conspiracy into effect. Consistency is given to the statute by treating the latter section as qualifying the preceding one. But I agree with the circuit judge that the absence of any averment of authority in the surveyor general to allow and approve the claim which was to be presented to him is, of itself, a fatal defect. The counts in all the indictments for conspiracies similar to those alleged in the indictment against Reichert are defective in one or mote of grounds stated. The demurrers to all the indictments are therefore sustained. TM Court. Asthe in which the indictments are s.ustained ID.ay be avoided upon new indictments. does the district attorney desire the parties to be held for fmthar proceedings?
. 146 4\nswet FEDERAL RmpORTER.
that the defendants be held to grand,juryof the circuit. The"Oourt· .An order will.be eptefed that they 'thus held.
DistrictAtwrney.
the-rlineteenth,day of November, in the year of our Lord one thousand eight ,11ulldred:andeighty-four; city aOQ, county ofSan ,Francisco, state and 4j.strict and of this llOnorable court, did unlllwfu,Ily, corrUptly, and wickeQIY,coPllpire, combiBl'l' and agree together, and with divers other persons to the sliid 'grand jurors to defraud the United State.s, by presenting and 'cansing to be presentea fictitious, and upon and 'against the United States, hi order to secure 'thealJowanceaodpayment:tothe'said James R. Glorer, and ,to divers.. other pe;rsonsto tlie $aijf.g'lland jurQrs unknow.n, of !lum .qf money, to-wit, .the sum ;ofo,qe hunared dQIIars, IqQl'eorless; which said false, fictitious, and fraudulent claim consistell an4 was to consist of aeartain false, fictitious, and frauduletlt sllrvey Jandso{ the. United States, to-wit, the .slitvey, marking, and establish'ingthe eXteddr Iities of Tp. 1 S.· R. 1 W.;Tp. lS.;R.16W.; Tp. lS.,R;17'W.;Tpil N.,R.16 W.l Tp.l N., B.17W;j:Tp.2·N.· R.16 W.;Tp.,2 N.,Rd7 W.,S.B.M.,-andio eel'· tain, false,dctitjous, audfra\1.duleIj.t Of such, ,false, fictitious, and of the aforesaid: lands of theV'nited States j :which an9 Claim lipon the UJlited States \\:38 desIgned "and mtended to,ibt presented to the United State8survejor genel'alfor the state ofCalif6mia, for approval 'and allowance. And the ·grand jurors aforesaid, on i their oath aforesaid, do 'further say that the ,said JamesR. Glov.er, in execution and in furtherance and pursuance of the ·84id unla,wful, corrupt, couspiracy, ,agreement. land CQmbinatipn, ,M ,to-wit, on the.t«irteeuth day of July, in the yearA. ',]).1885; dld,at the state and district of California, before M. F. Reillv, a comcircuit court, Nhitli'cihmit. disiiict, of California, make, stgiJ,' and exehri'te, 'it certain false and corrupt' oath,atlidavit, and certificate, 'wherein M,'thesaid'James R'.Gloverdhen and there falsely, COrl'Uptly" and 'fraUdUlently did depose, declare,. in 'substance, and effect·that he ,Pa.d. in his ow;n,PJ'oper person,; made all :act\.tal survey of certain public lands ,pi the. United States, to·.wit,all those patts ,Or 0,:£ th,e south, east, and bounl'lary li'ries of'fp.)S:,'R. I' :\V.,()f the San Behlardino base and . meridian, state. dfQalifornia, and that the field-notes' accompanying and to ac'eompany the 'said false and corrupt oath, affidavit, Bind certificate were true and correct ,field-notes of such survey; and that he had marked and established . !the corner monuments of such survey as iIlequired bylaw,tM surveying man',llakand,sutyeyiqginstructions.. Whereas,in truth and ill fact. no such surhad been ,mAde. and the said pretended did not represent a bonafide survey; and no such cornermoilUments Ylad been marked and established, which said false and fraul1ulent oath, affidavit, and certificate, and which said false, fictitious, and fraudulent field-notes of suilh pretended survey, were designed and intended to be,presented to, and were thereafter pre-sented to, the United States surveyor general for California, for the purpose
Subsequently, on the fifth of September, the United States district attorney m()ved fOf It rehearing in three' of the cases; OLl the alleged ground that the fourth count in the indictment in those cases was not covered by the decision rendered. The fourth count in the indictment against and othefs (and the:fourthcount in the other three cases is sim'Hat tOit)avers: ,: 'ITbat said Glover and tbe other'defendants named heretofore, to-wit, on
UNIT£DSTATES 'l!. MORRISSEY.
147
o1secuting the. and paymenHo,tbe said Jarnes R. Glover, and to divers tbesaid grand jUTorsuriknown, of aforesaid.su'm of'money, more <>t MIS, all.1n furtherance and execution of the said aforesaid. Contrary totbe form of t.be of the 'United States in such case made and provided, and against the peace and dignity of the United States. .. . .
to
oN MOTION .FOR 'A, REHEARING' IN SOME OF THE CASES.
After argument, the court denied the motion; FIELD, J., observing that the count was subject to the objection stated when the decision was made,-namely, that it fails to aver that the surveyor general of the United' States for California, to whom the .alleged false, fictitious, and fraudulent cll1.ini. was to be presented, WM authorized to allow and approve oHt. The court also held that the count was defective in not describing the propertj inl'elition to which the <lI.11eg¢ false, fictitious, and survey wMmade inintelligi1:>le An indictment. is to. be read to the accused unless' the reading is waived. The lallguage should ther.efote be ,so plain that one of ordinary intelligence can understand its meaning. For that purpose, COmmon words are to be used as descriptive of the matter.' Abbreviations of words employed or in \fill notan,swer, full explanaby,men,pf tiono! their meaning in ordinary language: ' The use. of the initials A. D. toindieate the rear of'our Lord is an exception because of its universality. Arabic figures and Roman letters have also become indicative. of num.bers as fully as .wordE\ written out could be. They are' of such generlil use as to be known of all men. They therefore may be employed in indictments. But the initials ,here ,ha.ve reference to the puplic ,ll;l.nds as marked on the public surveysj they are signs used in a particular department of public business, and not matters of general and univeral knowledge by all speakers of the English language. The same objection applies to the initials S. B. M., supposed to denote San Bernardino meridian. .'l'4ere is no averment eX<lept'in this way that the land alleged to have been,:surveyedlies in the state California. . '['he iridictIllent is !J,lso'defective in that the accused 'knew that the .claim waafalse,.ficthious, and fraudulent· ·
UNmD
STATES "'. MORRISSEY.
(C'ircuit Oourt, E. D.. Mi88ouri, E. D.· . April 21, 1887.) 1. ELEC'l'IONB-VIOLA.TION:OJ ' UNITEDBTATES LAWB-,-CONSTRUCTION OP STATUTE. 11) Rev. St. U. S, § 55:l4,eJl.acting .that where. by the laws of a state,
na.ma 9.f a candidate for representative or delegate in congress.. and the names of' candidates for i1tate offices, are required to be on the SQme ballot, "it shall be deeml)d sufficient prima facie evidence to convict...any person :voting or offering to vote unlawfully, under the provisions of to prove that the pe;aon so charged cast, or offered to cast, such tIcket or ballot wherein the name of Iluchrepresentativeor delegate in congress might by