UNITE!> ill.'ATEa' V. BOGGS.

837

statement on' the trial. For, as has been said on the cross-examination, Shepered was induced to say that "he did not think he swore falsely" because the defendant said "it was all right." But, on the facts admitted by him, the jury were of a different opinion; and the question was for them to decide, and not Shepered. As well might the famous burglar, Jack Sheppard, excuse himself for house-breaking, on the plea that he did not think it was burglary because the receiver of the stolen goods said "it was all right." , , The 'motion is' denied, and the defendant is directed to appearfor sentence.

UNITE!> STATES V. BOGGS.

(Di8iNet (Jourt, 8. D. lllinoUt. June Term, 1887.)

1.

B.

PERJURy-AFFIDAVIT TO SUPPORT PENSION CI,AIM.

Theofl'ehSeof perjury, as defined by section 5892, Rev. St. U. S., may be 'predicated,upon an affidavit to support a pension claim sworn to before a Ju&tice'of the peace. Regulations of the commissioner of pensions prescribed that" all evidence in a claim for pension (other than the declaration) may be verified before an ofllcer duly' authorized to administer oaths for general purposes. " Held, that a jnstice of the peace is an officer duly authorized to administer oaths, within the purView of said regUlations. ' Such regulations are proper, under section, 4748, Rev. St. U. S.,directing the commissioner of pensions to furnish claimants or ap{llicants with "all such printed instructions and forms as may be necessary In establishing andobtaining Said claim." An allegation in an indictment under section 5392, Rev. St. U. S., charging perjnry in an affidavit to support a pension taken before a justice of the peace, sufficiently avers, under section 5896. Rev. St. U. S., the official character of the officer taking the afJidavit, by alleging that said officer "was then Rnd there a person having competent authority to administer said oath." The officer's special authority need not be set forth.

PBN8IONS-REGULATIOl'l8 OF COMMISSIONER-AFFIDAVIT.

8. SAllE.

4.

PERJURy-INDICTMENT-SUFFICIENCY.

Indictment for Perjury. Motion in arrest of judgment. G. Van Hoorebeke, for the United States. John M. Palmer, for defendant.
ALLEN, J. The defendant, at the June term, 1886, was indicted under section 5392, Rev. St. U. S., which provides that "every person who, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, or certificate by him subscribed is true, willfully, and contrary to such oath,states or subscribes any material matter which he does! not believe to be true, is guilty of perjury." A trial was had at the last January term of this court, when the jury v.31F.no.6-22

888

.' FEDJmAL REPORTEB.

found him guilty. A motion in of judgment was made before the late Judge TREAT, and recently argued before me, upon the following of facts: (1) That William BoggS, the defendant, was sworn to affidavits, Exhibit C and D, before THOMAS S. LoY, a justice of the peace,duly commissioned and qualified, within and for the county of Effingham and state of Illinois. (2) That the affidavits ElChibi,ts C and Dare thl? affidavits upon which the perjury is predicated in the indictment, and the originals. transmitted to the commissioner of pensions, and filed as evidence in the pension claim of Jesse C. Young, certifi6ate No. 289,854. . '. (3) That THOlllAS S. Loy, the justice of the peace aforesaid, William Boggs, the defendant, and Jesse C. Young, the pension claimant, resided less than 25 miles from the county-seat of Effingham county, Illinois. (4) That the blank form affidavit. (Exhibit C) was furnished the pension claimant, Jesse C. Young, by the commissioner of pensions, which was afterwards filled out and sworn to and subscl'ibed by. said William Boggs, defendant, before said THOlllAS S. LoY, justice of the peace. (5) That thercJ.erk of Effingpamcounty"lllinois, under \lis. pand and official seal, had, previous to making affidavit Exhibit C, sent to the commissioner S. LoY, justice Of tb,e peace, and a of pensions the signature ·of said certificate thatBaid signature was genuine, in said certificate giving ,the date of said THOlllAS S. Loy's commission as such justice of the peace, and the time it would expire; and that said affidavits, Exhibits C and D, were sworn to by said defendant, William Boggs,while said Loy's commission as such tice of the peace was in full force:.. . ' .... (6)' That M.. J. ¥aloney testified .on the trial of this case that he was familiar with ,the practice of the penlilion bureau; that he ha4 been employed therein for several years as it clerk; and tllat it was a rule of the ,bureau to· admit and accept, as proof in pension claims, affidavits and papers sworn to before tices of the peace, other than 'declarations.. He did not testify tbat there were any written rules iIi the bureau. ' ' The indictment contains two counts, the first ofwhich charges the defendant with having taken an oathpefore THOMASS. LoY, "then and there a justice of the peace in and·lor the county of Effingham and state of Illinois, who was then i:md there a person having competent authority toarlminister,said oath; that a certain written certifiCate in the matter of a certain claim of Jesse O. Young for pension, under the laws of the United States, then and there subscribed by him is true, willfully and contrary to such oath, did then and there subscribe cel'tainmaterial matter in said certificate then and there' contained, which, he the said William Boggs did not then and there believe to be true,"-setting out such alleged material matter. The second count is substantially the same as the:first, except as to the dates and detail of alleged material matter. The contention- in support of the motion is that THOMAS S. Loy, the justice of.the peace before whOIll the oath was taken, was not a competent person,. and did not possess competent authority, to administer said oath; that, no law of the United States ha.ving given express authority to justices ofthe peace to·administer oaths to persons offering to be sworn in support of pension: claims" perjury' cannot be assigned upon oaths so taken, however false or corrupt. The question is not entirely free from difficulty. While it may be

UNITED STATES tI. BOGGS.

839

t.rue that a false oath does not necessarily constitute perjury, unless so declared by law, it would seem that if the officer before .whom the oath is taken be of a class having general authority to administer oaths, and that class has been designated by the head of the bureau or department having jurisdiction of the claim in aid of which the false oath is taken, perjury may be well assigned. Section 5396, Rev. St. U. S., provides that," in every presentment or indictment prosecuted against any perSOll for· peljury j it shall be sufficient to set forth'the substance of the offense charged Upon the defendant, and by what court, and before whom the oath was taken; averring such court or person to have competent authority to administer the same, together with the proper averment to falsify the matter wherein the perjury is assignpd; without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding, either in law or equity, or any affidaVit, tleposition, or certificate other than as hereinbefore stated; and without setting forth the commission or authority ofthe court or peraonbefore whom the perjury was committed." Under section 4748, Rev. St. U. S., it is made the duty of the' commissioner of pensions to furnish claimants or applicants for pensions, free of expense, "all such printed instructions and forms l'/oS, be necessl,l.ry in establishing and obtaining said claim." Acting upon this section, the commissioner of pensions prescribed, published, an,d distributed generally over the country, printed instructions aAP to the effect that "all evidence in a claim for pension (other than the declaration) may be verified before ail officer duly authorized to administer oaths for general purposes." It,must be admitted that a justice of the peace is an officer duly authorized to administer oathE! for general purposes. The indictn1ent avers, that THOMAS S. LoY, the justice of the peace before whom the oath was taken, "was then and there a person having competent authority to administer said oath;" .and, this averment, under the section of the statute'quoted, is deemed sufficient,without setting forth his special authority; congress'having, by section 4748, directed the commissioner of pensions to furnish printed, instructions to pension claimants, to be followed by them in establishing andobta:ining their claims, and that officer, having designated justices of the peace as persons before whom proof in aid of pension claims can be made, had the power to make such a regulation, the same having the force and effect of positive law; and, such officers so' designated possessed competent authority to administel.'sudi oaths as the one taken by the defendant. Section 4714,Rev; St. U. S;, provides that the declarations of pension claimants shall be made before a court of record, or before some officer thereof ,.custody of its seal; but it omits to declare before what officer or tribunal protlf in support or aid of the declaration shall be made. It is well known lthat the regulations prescribed by the commissioner of pensions have been :very generally followed, and, in the many thousands of affidavits in aid of pension ap'plicants, 'very few have been sworn to before any other officer than justices of the peace. Millions of dollars have been paid out by the government, and vast sums of money

:840
are being paid out daily, to pensioners upon claims aided and su pported by oaths administered by justices 'of the peace, in all the states and territories, and in pursuance of the prescribed regulations referred to. The practice in such cases has been too long established and recognized by the government to now hold that the justice of the peace, Loy, did not have competent authority to administer the oath to the defendant set out in the indictment. This view is in harmony with the reasoning in U. S, v. Bailey, 9 Pet. 268,'and not in conflict with U. S. v. Curtis, 107 U. S. 671, 2 Sup. Ct. Rep. 507, cited by counsel for defendant. The motion in arrest of judgment will be overruled.

FISH,

qui tam, etc., v.

MANNlNq

and others.

(Distriot qowrt, .8. D. Net/) York.

May 19, 1887.)

1.

ACTIONS FOR PENALTIES-PATENTs-TIlIIE OF STAl\IPING-DElIIunRER.

Upon statutory actions for penalties brought under se.ction' 4901 of the United States Revised Statutes; for stamping patented articles without consent of the patentees, etc., the pleader, in accordance with the state practice adopted by section 914, Rev. St. U. S., is not required to allege the stamping to have been on a precise dar, 'as at common law; an averment that it Was done "in or about June, 1886," is sufficient on demurrer.

2.

SAlliE-STATUTE TO BE PLEADED WITH CERTAINTY.

Under section 1897 of the New Xork Code of Procedure, the statute relied on, and the section thereof, must be referred to with certainty. It is insufficient to refer to different statutes, without specifying which.

8.

SAlIIE-PLEADING-ESSENTIAL FACTS-STATUTORY EXCEPTIONS.

All the essential facts must be. distinctly alleged. Exceptions forming a part of the statute constituting the offense should be negatived. In this case, held, on ·demurrer, necessary to allege (a) that the defendant had no patent; (b) that the stamped article contained the patented that it was stamped without consent of the plaintiff's "assigns or representatives."

John A. Wiedersheim Cb., for complainant. Stanley, Olarke Smith, .for defendants.
BROWN, J. This action is brought to recover $100,000 penalties for the alleged offense of stamping certain patented articles made by the defendants without the patentee's consent, under section .4901 of the United States Revised Statutes. A demurrer to the complaint has been interposed on various grounds. This offense is not made criminal by statute, although penaljand it is therefore to be distinguished, in some important respects, from the case cited of Boyd v. U. S., 116 U.S. 634, 6 Sup. Ct. Rep. 524.. The 8ufficiencyof the complaint is to be determined according to the rules applicable to civil actions, and according to the state practice in similar or analogous actions at common law, and not according to the analogies of criminal procedure·

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