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
lnn'rEDSTATES 11. WALLAtlE.
certainty of the nature of the accusation against He can prepare his defense to it, and if at"any time hereaftet he be called to account foJ' these same acts, (vop-cher, account, etc. ,) he can plead the result of a trial on this indictment fOf his defense . . It is further contended that the name of no person or officer in the service oNheUnited States is stated in the count. to whom this claim was to be Is this necessary? The first ciause forbids the making or presenting for payment or approval" to or by any person or officer in the civil, mnitary, or naval service ofthe United States" any claim against the government of the United States, etc., which is known to be false, fraudulent, and fictitious. The second clause forbids the making or using of any false bill, account, etc., for the purpose of obtaining the paymell;t or approyal "of any such claim;" that is to say, any claim so presented or to be presented- to any officer in the civil, military, and naval service of the United States, and known to be false, fraudulent, and fictitious. This being so, the omission to state the person to whom the claim was, or was to be, presented is fatal. The preparation of a claim against the government,however fraudulent, and fictitious the claim may be, is not a crime. It must be prepared for the purpose of presented. Not only so, as thegoverllment of the United States is.impersonal, acting and acteduponby:ll.nd through its agents, such claiiil must be prllsented or be prepared for presentation to an agent of the United States, and he must be the proper agent·. The presentation of a claim for munitions of war furnished to the United States to the postmaster at Charleston, or for naval stores to the internal revenuecollector,' or for carrying the mails to the district attorney, however fictitious, false, and fraudulent either of them may be, would not violate this section. To complete the offense, therefore, it must be proved that the false vouchers, etc., were prepared for the purpose of presentilig the false claim for payment or approval to or by any person or officer in the service of the United States-authorized to approve, audit, or pay the same; and if this is to be' proved,' it· must be alleged. U. S. v. Glover, 32 Fed. Rep. 142. to the alleged a'flidavit, without deciding the question whether a commissioner can administer such an oath, it is enough to say thlJ"t the count charges the use of a false , fictitious, and fraudulent account, certificate, and voucher, as well .as affidavit, and the account, whether sworn to or not, set out in the count, will sustain this charge. Second Count. The indictment charges the presenting for payment of a claim against the United States to George 1. Cunningham, marshal, etc. The account setout in the count is 'I United States of America to George I; Cunningharil,United States Marshal, Dr." Surely this was not presenting a claim against the United States, or any department or officer thereof, to a person in the civil, military, or naval service of the United States. 'Mr. Cunningham could pot pay for the government bis own claim againsttbe government, nor was he the proper agent of the govaudit,' or pay this clait;n. This makes it unnecessary to discuSS anybther grOUnd of demurrer to the eount. Demurrers are sustained. -
FEDERAL REPORTER, vol. 40.
In t'e DOHRENDORl" et al.
(C'ircuit Oourt, D. KanBIU.
February, 21, 1889.)
DESlIlBTION nOM MILITABY SERVICB-SOLDIBBs-MINoRS.
One who remains in the military service of the United States for more than two years after attaining his majority, receiving pay therefor, is within the meaning of Rev. St. U. S. p. 234, art. 47, providing that "any .. .. .. soldier who, having received pay, or having been duly enlisted in the service of the United States, deserts the same, shall .. * * suffer * * * any punishment * * * which a court-martial may directl " and the court-martIal's finding cannot be reviewed on h:abeaB corpus, though hiS enlistment was void because of hill minority.
On Petition for Habea8 COrpU8. C. W. .P. Da88ler, for petitioners. A,·thur Murray, Acting Judge Advocate, and W. O. Perry, U. S. Dist. Atty., BREWER,J.The August W. Dohrendorf is 10 the military prison. under sentence of a for the crime of desertion. The single question is as to ,the jurisdiction of that court. He enlisted November 23, 1$!34, being then a minor, aged 20 years and 9 months. His parents were living, and did not consent. to his enlistment. He continued in the !lervice until October" ·1887, when he deserted. This petition for hili! discharge is brought by his mother and himself. Questions of the right of a party to ,8 discharge from the military service, who enlisted, fl,S a minor between the ages of 16 and 21, without the ,consent of his parents or guardians, have been Jrequently before the ,courts, and some very careful and elaborate opinions prepared thereon. I shall therefore enter into no discussion of the question here presented, ·but simply state my conclusions. Article 47 of the rules and articles of war (Rev;. St. U. S. p. 234) provides that"Any officer or soldier who, having received pay, or haVing been dilly en'listed, in the service of the United States. deserts the same, shall. in time of , war, suffer death, or such other punishment as a court-martial may direct; .and in tiuie of peace, any punishment excepting death, which a court-martial may direct." , Assuming that the contract was void, und that he or his parents could lit any time have, avoided it, yet, three months after his from that time the control of his par,enlistment, he became of age, 'ents and their right to his services ceased. He Wias his own master. He continued in the service for more than two yea.rs thereafter; receiving pay for his services. !;Ie comes, therefore, within the letter of the article, asa soldier who had received pay." As such he was amebable cannot be thus to the jurisdiction of the court-martial, and its ,-collaterally questioned. In reZimmerman, 30 Fed. Rep. 176, and cases '-cited, in the opinion; In re Hearn, 32 Fed. Rep. 141; Tn re Spencer, post, 149, (districtc9,urt of Kansas, opinion recently flIed by FOSTER, J. 1) . and case's cited therein. The petition will be denied, and the prisoner remanded. .