THE UNITED STATES 01" AMERICA
(Circuit Court, E. D. Wisconsin.
January 5, 1880.)
INDICTMENT-FRAUD, HOW ALLEGED.-An indictment charging fraud should aver the fraud with sufficient particularit:r to enable the defendant to prepare his defence, and plead the judgment as a bar to a subsequent prosecution.
G. W. Hazelton, U. S. Dist. Att'y, for the United States. Jenkins, Elliott et Winkler, for defendant. DYER, J. This is an indictment for presenting for payment to the pension agent in Milwaukee a false and fraudu. lent claim for pension moneys. 'fhe defendant was tried and convicted at the last term of the court, and the case is again np for consideration upon a motion in arrest of judgment. It is not without reluctance that I have come to the con· elusion with reference to the disposition of the motion which I am constrained to announce, since the evidence adduced on the trial tended strongly to show the perpetration of a gross fraud upon the governme'lt; but it is the duty of the court te: administer the law a,;cording to its best understanding, regardless of consequences. The defendant was indicted under section 5438, Revised Statutes, which provides that every person who presents for payment to or by any person or officer in the civil service of the United States any claim upon or against the government, or any department thereof, knowing such claim to be false, fictitious or f.audulent, shall be punished as the statute directs. The offence may in one view be regarded as a felony, and in another view as a misdemeanor, since the statute de· clares with reference to the punishment that the person offending shall be imprisoned at hanI labor for not less than one nor more than five years, or fined not less than $1,000 nor more than $5,000. The indictment contains three connts, bnt as they are equivalent in form reference to one will be sufficient. The first count charges that on the fourth day of December, 1877; the defendant did present and cause to be presentod for pay-
ment to a.nd by a person in the oivil service of the United States, to-wit, Edward Ferguson, a pension agent of the United States, at the city of Milwaukee, a claim against the government of the United States, to-wit, a claim for the sum ·of $24, then and there claimed and represented by the defendant to be due to him from the said government of the United States as a pensioner, under and by virtue of a certain instru· ·ment known as a pension certificate, which said pension certificate had been theretofore procured and obtained by the said Richard Goggin upon false and fraudulent proofs, and with· out the authority of law, and in fraud of the law governing pensions and pension certificates; he, the said Richard Gog· .gin, well knowing, at the time and place of making said claim, and of presenting the same for payment, that it was then and ihere false, fictitious and fraudulent. Objection is made to the indictment as not stating any offence, the argument being that no offence is described with such certainty as the law of criminal pleading requires. The reply of the learned district attorney is that it states the offence substantially in the language of the statute, and that this is sufficient. It will be observed that the gist of the offence, as we find it defined in the statutes, is the presentation for pilyment of a false and fraudulent claim. The indictment alleges no facts which the fraud; it is not shown how the fraud was perpetrated, nor wherein the claim was false, except that the defendant presented a claim which he represented to be due to him by virtue of a pension certificate, which had been theretofore procured upon false and fraudulent proofs, and by unlawful and fraudulent devices, and without authority of law. What the false and fraudulent proofs, and unlawful and fraudulent devices were, is not stated. The question is, are these allegations sufficiently certain, and do they contain statements of fact which will support a conviction? My impression, upon the argument, was that the objection urged by counsel for defendant was one which went rather to the form than to the substance of the indictment, and that, as he had not moved to quash, his -obj6otion was not good in arrest of judgment; but the rule
mUTED STATES V. GOGGIN.
is that any objection to an indictment which would be good upon demurrer. is fatal on motion in arrest. and this being so. the objection to the indictment, if well grounded in law. may be as well taken at the present stage of the proceedings as by motion to quash. In the case of the U. S. v. Watkins, 3 Cranch. Cir. Ct. Rep. 441, the court had occasion to state the rule with reference to certainty in alleging frauds in a case of false pretences, and it was there held that an indictment charging fraud shoula aver the means by which the fraud was effected; that fraud is an inference of law from certain facts, and the indictment must aver all the facts which constituted the fraud; that whether an act has been fraudulently done is a question of law, so far as the moral character. of the act is involved. '1'0 aver that an act was fraudulently done is, therefore. to aver a matter of law and not a matter of fact. (See pages 456,457,458 and 459.) It is true that this was a case of false fretences, and there mo,y be a well grounded distinction, as lirged by tlie learned counsel for the United Utate.':l, between such a case and the Cl1se in hand; because, in a C'alile of false pretences, it is undoubtedly essential thlLt th.e f.:wts and circumstances should be alleged with ffuch certa.inty that the court may see upon the face of the pleading that the pretences were false, anel that they were of sneh character, and marla under such circumstances, as constii:ute fa,Jse pretences within the meaning of the criminal !awj that they wore t\'3lied upon. acted upon, and that the party defrauded had II. right to rely upon them; and herein, and perhapi:! in some other respects, such a case is distinguishable from the precise question which we have in the case at br. But it is un·· doubted!y a sound princi;:>le that an indictment chargmg fraud of any sort ought to aver, with requisite particularity. wherein the fraud consisted, and the means by which it was eflected, and I have been unable to find any case which dispenses with the application of this rule. It. is true that many of the niceties and technicalities with reference to form in criminal pleading which once existed are not allowed now to prevail, but I do not understand that there has been any relaxatiou of the l'Ule with relt;;rtl.l,l.ce to certainty and clear·
ness as to the matter charged. It is also a general rule that in an indictment for an offence created by statute it is sufficient to describe the offence in the words of the statute. In the case of the U. S. v. Simmons, 96 U. S. 360, the supreme court had occasion to point out the precise scope and limitations of this rule, and after stating the rule Justice Harlan says, in the opinion: "But to this general rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defence, and plead the judgment as a br.r to any snbsequent prosecution for the same offence." And here, I think, we strike the fatal point in this indictment; for, after as carefnl and serious consideration as a case of this nature requires, I am unable to see how defendant could plead his present conviction under this indictment, and a judgment thereon, in bar of a second prosecution for the same offence. It is alleged, only, that he presented to the pension agent a claim for pension moneys nnder a pension certificate which was procured by false and fraudulent proofs, and Ulllawful awl frandnlent devices. The fraud should have been, by apt allegation, more particularly identified; it shonldhave been alleged what the proofs and devices were, aml wherein they were fraudulent; and it is, in my jUdgment, immaterial when the proofs were made, or devices resorted to-whether at the time of presenting the claim, or at a time anterior-and when made, as the basis for oltaining the pension certificate. If the fradulent devices had consisted of an act done when payment was demfmded, it would, I think, be clear that the nature of the devices, or particular fraud practiced at the time, should be alleged, and, if this is so, it seems also essential that they should be alleged, though they were, in fact, practiced at and before the time of obtaining the pension certificate. The offence, it is true, was one committed, not in 1867, but in 1877 and in 1878-that is, a claim was presented for payment at those times-but, going back to the origin of the alleged fraud,I do not understand why it is not
UNl'rED STATES V. GOGGIN.
as necessary to allege wherein the fraud consisted at its inception, and when made the basis for obtaining the pension certificate, as it would be, if it consisted of some device practiced at the very time the claim was presented for payment. It was necessary to show the alleged fraud and the acts which constituted it, on the trial, and it was, therefore, necessary that it should be alleged, at least with sufficient particularity to enable the defendant to plead any judgment which might follow, as a bar to a subsequent prosecution for the same offence. The allegation is that a claim was presented by the defendant, as a pensioner, under and by virtue of a certain instrument known as a pension certificate; but this certificate is not described so that it can be identified; and I think it should have been so described as to make it capable of identification-as by date, the names of the persons who purported to sign it, and the like-so as to satisfy the requirements of the rule as laid down by the supreme court in U. S. v. Simmons. If we adopt as authoritative, upon the qLIGstion under consideration, the case of the U. S. v. ]]eltilwe, 15 Inter. Rev. Rec. 32, which is a case somewhat in opposition to U. S. v. BallCLrd, 13 Inter. Hev. Hec. 1%, it is very clear that we should have to hGld this indictment insufficient; and I incline to the opinion that the cor· rect rule is stated in the former case. It was stated upon the argument that what is alleged in the indictment in regard to fraud in obtaining the pension certificate relates to the evidence of the offence, and not the olIence itself; but it is not the presentation of the claim for payment which makes the offence, it is the presentation for payment of a false or fmudtllent claim, and as no fraud can be committed but by deceitful practices, the particular deceitful practices by which the fraud is alleged to have been commit· ted, or which mftke the claim fraudulent, should be to such extent set forth as to make the fraud appear upon the face of the indictment. This may be, to a certain extent, aJleging the evidence of the offence, but it is rather the statement of essential facts which constitute the fraud, and therefore make the presentation for payment of the claim a criminal offence.
The point is one that cannot be made clearer by elaboration. I rest my judgment upon the fact that the allegations of the pleading are not sufficient, within the rule stated by the supreme court, to apprise the defendant with that certaintv which the law requires of the nature of the accusation again;t him, to the end that he may prepare his defence, and plead the judgment as a bc/,?' to any subsequent prosecution for the same offence. Judgment must be arrested.
and others v.
(Oircuit Oourt, D. Massachusetts.
November 24, 1879.)
1"1 BILL OF LADIXG.-Ex-
ceptions in n bill of lading breakage, leakage and rust, as well as tlw perils of t11e sea, do Ilot re11('\'(' 11 cnrrier from liability where a cargo of iron was injured by salt water, OWing to improper stowage and the defective construction of the ve"sel.
CLIFFORD, J. Carriers of goods, if common carriers, Contract for the safe custody, due transport and right delivery of the same, and, in the absence of any legislative regulation 'prescribing a different rnle, are insurers of the goods, and are liable at all events and for every loss or damage, unl" it happened by the act of God, 01' the public enemy, 01' the fault of the shipper, or by some other cause or accident expressly excepted in the bill of lading, and without fault 'n" negligence on the part of the carrier. The Cordes, 21 How. 23. Ship-owners and masters of ships employed It" general ships in the coasting or foreign tr'ar1e, or in genera l freighting business, are deemed common c;"1lTierd by water, and as snch are as much insurers of the goods they transport as common carriers by land, unless it is otherwise provided in the bill of luding. Story on Bailments, (7th Ed.) 501. Such a carrier's first duty, and one implied by law, and staunch, and well is to provide a seaworthy vessel,