of substance and less at the matter of form. Believing that the defendant was fully informed of the matter charged against him, notwithstanding' the cases cited to me of G'om. v. Boynton, 12 Cush. 499, U. S. v. Blenker, 32 Fed. Rep. 691, I am constrained to hold that this indictment is sufficient, and that the motion in arrest must be denied. My brother NELSON agrees with me fully in this matter, and it will be so ordered.
(Di8trict Court, W. D. Tennessee. November 15, 1888.)
FORGERY-OBLIGATION OF UNITED STATES-INDICTMENT-ALLEGATION OF IN' TENT. .
If the indictment be for falsely making and forging an obligation of the United States. it is sufficient to aver in the general language of the statute an intent to defraud, and the name of any person sought to be defrauded need not be mentioned, nor is any more specific ,averment necessary. such as might be required if the offense charged were that of passing or attempting to pass. uttering or publishing the forged security. Guilty knowledge. and an intention to defraud the United States, if no one else, are necessarily implied from the language of the Revised Statutes, § 5414, describing the offense.
SAME-WHAT CONSTITUTES-INDORSEMENT OF POST-OFFICE WARRANT.
It is an offense against the United States, and forgery, under Rev. St. § 5414, to falsely aud fraudulently write the name of the payee upon the back of a post-office warrant upon the treasury of the Uuited States, such indorsement being in a legal sense a part of the lDstrument itself.
The offenses denounced by Rev. St. §§5469, 5470, are not confined to the larceny of articles from the mails, or receiving articles stolen therefrom, and it is not essential to aver or prove all the ingredients of that offense to BUstain the indictment. Any taking' or abstracting the articles, or receiving them, when so taken, with the object described in the statute to "open," "secrete," "destroy," "embezzle," or "steal," is within the statute.
FROM THE MAILs-PLEADING AND PROOF.
INDICTMENT AND INFORMATION-REFERRING ONE COUNT TO ANOTHER.
It is not good pleading to refer to a former count in aid of the averments of another. but it is a matter of form only, and cured by section 1025 of the Revised Statutes.
Indictments for Forgery, and for abstracting and embezzling from the mails. On motion to quash· . lI. JV, McCorry, U. S. Dist. Atty. .W. W. Murray and E. L. Bullock, for defendants.
out in hax verba, avers that the defendant did, "with intent to defrl;lucl, falsely make and forge the name of 'Jas. J. Morgan' on the back ofawarrant," etc., (describing it.) The warrant, as described, and as by its words, is one of the securities or obligations of the United States which section 5414 of the Revised ,Statutes of the United. Statea to protect against forgery, counterfeiting, or "with
sued from th r post-office department for transportation of the mails, and
The indictment for forgery of the treasury warrant is--
UNITED STATES V. JOLLY.
intent to defraud." to use the language of the statute. Primarily, the implication is that the United States will be defrauded by such conduct; and the intent to defraud the United States is necessarily indicated by the statute by the very use of the words. "any obligation or security of the United States," and therefore it cannot be necessary to aver any specific intent to defraud the United States, or any other person who may be defrauded py the act complained of by the indictment. In an indictment for the common-law crime of forgery perhaps it might be necessary, in the absence of legislation changing the rule, to allege the name of some person intended to be defrauded. or that the name of that person was to the jurors unknown. Bish. Dir. & Forms, § 457. But our federal jurisprudence knows only statutory offenses as they are defined by acts of congrebs,and only a general intent to defraud is required or defned by this section of the Revised Statutes, which is intentionally so general as to protect all the securities of the United States, and a more specific intent to defraud particular persons other than those implied by the language used in describing the intent cannot be imported into the act of congress without usurping functions. In the case of U. S. v. CarU, 105 U. S. 611, the defect was that the indictment for "passing, uttering, and publishing" a forged obligation under Rev. St. § 5431, did not aver a guilty knowledge of the forgery by the defendant, wherefore the "intent to defraud" was not described sufficiently by using the language of the statute in that section, which· is identically the same as that used in section 5414, which we are considering. But the difference in the character of the two offenses, in this regard, is quite obvious. One may pass a forged instrument innocently, because he does not know it to be forged, and believes it to betgenuine; but one cannot innocently make or himself forge the instrument without guilty knowledge of the fact of the want· of genuineness, if his intention be "to defraud. "in the language of the statute. He' might, without intention to'defraud, make such an instrument, or counterfeit it by copying it or otherwise imitating it, idly, say, or for some lawful purpose.; but it is entirely sufficient in and by the very. language of the statute to negative that kind of innocent conduct by averring that the forgery was done with an intent to defraud. The difference is in the essential nature of the two offenses, and the case falls directly within the principle announced as an exception to the rule in the case of U. S. v. Carll,8upra: those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all, the elements necessary to constitute the offense intended to be punished.'; That is the case here. S. v. Brilton, 107 U. S. 655, 661, 2 Sup. Ct. Rep. 512. Nor is this case like that of Hooper v. State,8 Humph. 92, which was, again, an indictment for passing a counterfeit bank-note, where it was held that the indictment did not sufficiently charge the intent to defraud the person to whom the note was passed. That person might have known the note to be spurious, and so would not be defrauded, or some other circumstance might intervene to relieve the act of the fraudulent intention, which fact not at ail incomlistent act of passing,where-,
fore the indictment should allege the fraudulent intention specifically. But with the act of making or committing the forgery itself it is entirely different, as before pointed out. . .U. S.v. Otey, 31 Rep. 68. Meager as the indictment is, the objection that the intent to defraud is not more specifically set out by naming some person intended to be defrauded is not, therefore,· well taken. The next objection is that the indictment is only for the forgery of an indorsement upon the post-office wal'rant, which is not within the Revised Statutes, § 5414, but is at most only a common-Jawor state offense, of which this court has no jurisdiction. This is a very narrow view of the statute, and trims it to dimensions that would very materially impair its usefulness, and leave the obligations and securities of the United States at the mercy of forgers and counterfeiters. I do not comprehend why the llame of the payee is not as much a part of the instrument as that of him who, in behalf of the United States,signs the warrant or check. It is conceded that it is so, as appearing all the face of the instrument, but it is denied that it is so when placed on the back of it, because, it is urged that it is then a mere private writing used for a purpose wholly independent of the warrant, and only to pass title to it; and that it is no more forgery than it would be to hand the warrant over to another, if it were payable to bearer, as it might be, and pass it by mere delivery. It was very nearly held in U. S. v. Long, 30 Fed. Rep. 678, that the . mere impersonation of the payee would be forgery. Certainly it is, if, as in that case, the name of: the payee was signed to the receipt upon the money-order by the person impersonating him, and that under a statute quitt" as general as this we are considering. So, too, in Ex parte Hibbs, 26 Fed. Rep. 421,481, a postmaster who issued money-orders genuine in their form and substance to all intents and purposes, so far as these qualities related to his power to issue them, but designed to accomplish his fraudulent purpose of appropriating to himself, under that form of genuineness, the money belonging to the funds provided to pay money-orders,was held guilty of forgery under a statute quite as general as this. He made out the orders to a fictitious person, used "the name ofthat fictitious person through a bank to collect the money, and it was forgery. It is obvious to the court that the principle of these cases is correct, The very fact that the warrant is made payabJe "to order," rather than "to bearer;" when it would pass by delivery, like a banknote, shows that the practice of so writing them is intended to bring the' indorsement within the protection of the law against forgery. It constitutes about all the vaJue there is in so writing them, and the writing the name of the payee faJsely and fraudulently on the back is just as much a forgery of the instrument as any other· false writing concerning it. would be. It is in every legal sense a part of the instrument. itself. Theother of these twoindictulents is drawn under Rev. St. §§ 5469, 5470,; and charges in the first count that the defendant took from the mail,feloniously, the letter bontaining the above-mentioned warrant, and then and there opened and embezzled the said Jetter; and, in1he second oount;that he did feloniously "'receive" the said check" set out by words
and figures in the first count of this indictment," well knowing the same to hav:e been stolen or from the mail. It is objected that this indiotment does not contain .the necessary averments to constitute the crime of larceny or receiving goods stolen from the mails, inasmuch as it does not charge the technical larceny of the letter. If it was intended in Jones v. U. S., 27 Fed. Rep. 447, to hold that these statutes or the similar one-Rev. St. § 5467-involved in that case provide only against the crime of larceny of the letters or packets described in the statute, I cannot agree to that ruling. 'It has been ruled in this court always that these statutes were not confined to a technical larceny from the mails, but also punished the simple taking to open, embezzle, or destroy, or the , obtail1 ing of a possession by fraud or deception, etc. ,Of course, ,tech. ,nicallarceny would be included; but likewise acts and conduct not:at all amounting to technical larceny are denounced by the statute, as it seems to me is plainly indicated by the language used, the general scope and the evident purpose of the statutes to protect the mails against all manner of pilfering or other wrong-doing by taking from them that which ,should he safely kept in them until delivery to the addressee. The mails ·would be disastrously plundered, and all idea of their sanctity gone, unless this be the proper construction. It was said in U. S. v. Stone, 8 247, thllt the word "steal" isnot the technical word to describe the common-law crime of larceny. That word is not at all esl3ential to describe that crime, and it is a mistake, in my judgment, to ,ifuplyfrQm its use only the technical offense of larceny. It is the com'mon speeoh' to describe that. offense, no doubt, but not the technical words. To "feloniously take and carry away" are the technical words; the'word "steal" having crept from commoilSpeech into statutes, decis· ions; and indictments, perhaps. '1 have not followed out this conception because it is not necessary to establish it here, since the statute uses the word "take," without the word "feloniously," and in altogethera.different sense, in connection with "open," "secrete," "destroy," "obtain," , etc.', ,describing very to my mind, a dass of acts wholly disconnected with larceny, and for the obvious purpose of the most complete . protection of the mails from all kinds of interference and meddling with their contents, and are not at all confined to the punishment oflarceny. This,it-seems to me, must be so, and it is emasculating thes,e statutes to imply that they punish larceny only, from the use of the word "steal." The last objection is that the second count should be complete within itself, and should not refer to the other count in aid of its averments. , That is undoubtedly the best form of good pleading. Whether a count drawn as this is could be sustained at common law is very doubtful. , Perhaps it could not; and there seems to be authority both ways. But our Revised Statutes, § 1025, .forbid us to quash the indictmenHor that defect of fortn, as I think this clearly is, and we must therefore amend it by overlooking the defect, and reading the averments as if the words . Qf thefir£ltcountreferred to us describing the warrant were in this second ,count itself. It is not a technical amendlllent,butamounts ·to the same thing. I wish to say, however, that the courtoannotap-
prove such pleading, and desires that it shall be abandoned. The ordinary precedents, long established, should be adhered to as the safest, and affording no opportunity for objections like this. Motion overruled.
UNITED STATES '11. OWENS.
(Oircuit Court, lv. D. Tenne$8ee.
December 12, 1888.)
COUNTERFEITING-INDICTMENT-LIKENESS AND SIMILITUDE Oll' TREASUEY NOTES.
It is not essential, in an indictment for counterfeiting United 8tates compound-interest treasury notes, to aver tbat the alleged counterfeits are in the likeness and similitude of genuine notes authorized by the act of congress under which they purport to have been issued. This may sometimes be necessary under special statutes creating specific offenses as to particular issues of securities. but not under section 5431 of.,Revised Statutes, as interpreted by section 5413, providing a general law for punishing the forgery .of any and all of the obligations or securities of the United States.
SAME-DEsctUPTION OF OFFENSE.
The use of the words "false. forged, and counterfeited obligation of the United l::!tates" in the statute and in an indictment following its language. to describe the offense, is sufficient to imply, without more. that the alleged . counterfeit set out in lU13e verba in the indictment purports to be a genuine obligation of the United States, anll that it is likewise. intended to aver that there is or was outstanding or autborized by law 8 genuine obligation of which the alleged imitation was intended to be 8 forgery or counterfeit.
Indictment for Counterfeiting. On motion in arrest of judgment. H. W. McCorry, U. S. Dist. Atty:, and H. a. Ander8on, Asst. U. S. Dist·. Atty. John J. Du Puy, for defendant.
HAMMOND, J. The indictment in this case is for a violation of Re.vised Statutes,§ 5431, by passing, or attempting to pass, concealing, .with intent to defraud, and having in possession with like intent, two counterfeited compound-interest treasury notes of the United States, of .date July 15, 1864, which are set out in hf£C verba in all the counts of ,the indictment. It is only necessary to quoLe the following clause in the ·first count, the others to explain the objections that ,are now made to'the indictment on this motion to arrest the judgment: "That said defendant did feloniously utter, publish, and attempt to pass a certain false. forged, and counterfeited obligation of the United States, <to-wit, a certain false, forged, and counterfeited United States compound'Interest treasury note of the denomination of fifty dollars, which said false, forged, and counterfeited United States compound interest treasurynote is as follows, that is to' say:" (and here it is copied verbatim in the pleading.) It is objected that this pleading does not say in terms ,that this alleged counterfeited note is in the likeness or similitude of any genuine obligation of the United States, and that it does not aver that