UNITED STATES ". WALLACE.
On Demurrer to Indictment. Abiel Lathrop, U. S. Dist. Atty., and H. A. De SaU88Ure, Asst. U. S. Dist. Atty. J. P. K. Bryan, for defendant. SIMONTON, J. The defendant is indicted for violating 5438. Rev. St. 'l'he indictment contains two counts. The first is for making and false receipts, vouchers, accounts, and so forth, for the purpose of obtaining payment or approval of a false, fictitious, and fraudulent claim a.gainst the United States. The second is for presenting a false, fictitious, and fraudulent claim for payment to G. 1. Cunningham. marshal of the United States for the district of South Carolina. The defendant demurs to the indictment. This necessitates an examination of the language of the indictment. The indictment is brought under the first clauses of section 5438, which are in these words: "Sec. 5438. Every person who makes or causes to be made, or presents or causes to be presented. for payment or approval. to or by any person or officer in the civil, military, or naval service of the United States, any claim lIponor against the government of the United States, or any department or officer thereof, knowing sllch claim to be false, fictitious, or fraudulent, or Who, for the purpose of obtaining or aiding to obtain the payment or approval of sllcb claim. makes, uses, or causes to be made or used, any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowmg the same to contain any fraudulent or fictitious statement or entry." The first count, after reciting that the defendant, a deputy-marshal, was intrusted with the service of a warrant against one John Brooks, charged with violating section 5438, Rev. St., issued by a commissioner of this court, served said warrant, and arrested Brooks, and for the purpose of obtaining approval and payment of a false, fictitious, and fraudulent claim against the government of the United States, did then and there make and cause to be made a certain false, fictitious, and fraudulent accolint, affidavit, certificate, and voucher as to the number of miles traveled by him, the said L. W. Wallace, deputy-marshal, as aforesaid; and as to the employment of one J. H. Williamson as guard over the said John Brooks; and as to the number of miles traveled by the said L. W. Wallace, deputy-marshal, his guard, and said Brooks, in transporting Brooks from the alleged place of arreMt at Elloree, Orangeburg county, to Charleston, 8. C., and as to two meals furnished said Brooks, and to the employment of a guard over Brooks; setting out the account in full, headed: "United States of America to G. 1. Cunningham, United States Marshal, by Deputy L. W. Wallace, Dr.,"accompanied by copy of receipt of J. H.Williamson, a guard, and of .John Lewis for meals, with an affidavit beforeJ. Wesley Smi1h, United States commissioner, ofthe truth of the items. The count goes on to charge the fliisity of the account, and specifying the items, concluding with the allegation that defendant knew that. they were false. The second count charges that the defendant, a deputy-marshal, did present for payment to George 1. Cunningham, he being an officer in the civil service of the United States,-that is, being. United States marshal in and for the district of South Carolina, -a claim vAOF.no.3-10
against the government of the United States in the words and figures of ,t\1e iij the count, in this count, which is charged to be false, fraudulent, and fictitious in certain particulars set out in detail. .. The specific grounds of demurrer to the first count are: (1) That it sets out ,the charge in generaLtef1:m13, and does not state the specific charge,-,.,(1oes not desceud to particulars; that is to 8/1.y, "for the purpose of obtaining .approvalandpaymelillt of a false, fraud\1lent, and fictitious claim against the government of the United States,"without specifying the nature p,nd details of thefalsedraudulent, and fictitious claim, nor the name of the person or officer to whom presented. That it charges a false affidavit,and the copy of· the p.ffidavit in the .count shows that it .was .made before-a United States'oOInmissioner, who had no authority to administer such an oath. So, it is not an affidavit. Let us examine these. "ThEl of the indictmellt,is: First, to furnish the .accused with such a. deSQription of the charge against him as will enable'him to make hisdefeIlSe,.and avanhimself. of his conviction Or'acquittal for prosecution of the same cause; and, second, tq 'inform' the court, of ,the facts alleged, 'so that it may desufficie'rit'iii law tosuPpory;flo .conviction , if one factsjhquld be stated,anq., not conclusions of should bl3,had; fO.r .law alone. ,.,A crime is m!l.dtlup .oraets and intent,and these must be set forth in the indictment willh. reasonable particularity of time, place, ,Wd Again: apprised by the in.dictment. of the nature of; ,him, to the end .that he ,his defense, and plead the judgaibllrt<> iprps6Q\1tion,f9J," the Sl\me offense. An although jt follow the languagepf t4e Y.Hesa, 124 U. Sup. Ct. Rep. :5.71.; This p!lse because it lS' upon by. the deit as controlling authority. Let us .apply it tq We .inqui:J,"e, .what is the offepsecharged in this ,first count?, in Wl:lat c:hargemade7 The first count chargesihe maktng and causing.tq ,be made by the defendant ofl\ Certain ,false, and fraudulent a.cepunt, affidavit,<::ertificate, and voucher; then states the particular items of tpese, and declllres each of them in de,tailjo be false,;fictitious, and made for the purpose of .obtaining pay,ment by of the United States of a false, fie,titious, and fra,uqll;fflnt claim; that iato say, charging him. with a crime, ,theeount,recit,e& jiil,detail ..the which it designates to be criminal, andchargestpeiptElDt, which fixes,the criminality·. is not, as seems sup.posed,:aphar-ge that a false, etc'i claim. Were it the specieiH-;the details-of the claim must But the charge .is,that he mad.e f\p.qused a certain f!ll!3e aC<;lou11,t, youcher, etc., for the pur:pQse of obtaiIliag :payment orapprQvp.1 of the '. made up. And ,inmaking the specifical;lts are set out in, ;<;letail, with. the aocount prepared uppnthe false, fictitious, and fraud\11en,t ofthese ,facts. It SI'l,ems,'to me, that this apprises the reasonable