UNITED STATES". NEWTON
(D1.IttrUlt Court, S. Do .IoWa, C. D. November 17, 1891.)
Rev. StoU, S.'5 5440, provides 'tnat,OLittwo or more persons conspire, either to commit any oifeuBe against the or to defraud the U'uited States in any manneror'for anY' purpose, and one or more of such parties do any act to effect the objectef the conspiraoy, all the such conspiracy shall be liable, "etc. Rev. St. 0'.8. § 4002. proV1des companies shall be paie} for carrying the mails upon a basiB of the carried; such to be ascertained by actually weighing the mail carried during a certain number of days, to be fixed by the general. Belii, an Indictment charging railway officials with cOllspiring to deceive the officers alld defraud the,United States by the line a large amount of old newspapers, eto., in order to increase tbe mails at a tim,e when tbey were be;lug weighed, is suffioient, ,under section 5440, since it a to the "o!!ense'agllinst the United States." c' which is defined by Rev. St. U. S: 5 54.68prdviding a punishment 101' any persons ,combining, to defraud the United ,States by "obtaining, or aidillg to obtain, the payment 01 any'false 'or fraudulellt claim." "S,U-IB. , It was not neoElssary that the indictment should aver that the conteinplated fraud was suocessful, or the fraudulent mall matter of sufficient weight to elltitle the railway company to Increased oOoipensatioll, or that the forwarding of the matter would not be continued beyond tbe:period fixed for welghlag tlie'mails.
CoNSPJRAOJ:Tri :l>BJrHAUD THE UNITED'STATES-TRAKSPORTING MAtis-INDICTMBNT.
of railway officera for to defraUd the United States. by "deceiving· the' olJiclals" having charge a! the mails as to the amount of mail matter carried over the line, need not aver what partiCUlar officer was intended to be deceived.' ' . ,
;;AtLaw. Indictment for conspiraoy to defraud the United States. On· demurrer to indidment. Overruled. Lewis MileB, Dist. Atty., for the United States. Kauff'1M,n &- G'Iiern8ey, for defendants. , i Before S:amAs and WOOLSON, JJ.
" SRmAS, I.,By seotion 5440 ,of the Revised Statutes it is enacted that-' "It two or more' persons conspire. ,eithj!r to commit any offense the l]nited States. ot tb defraud tbeUnited St.teil in any manner. or for any purpose. and one or more of such parUfls do a,ny act to effect the object of the conspiracy. all the parties to such conspiracy shall be liable," etc.
Section 4002 provides the method by which the compensation to be paid to railway companies for the transportation of mail matter is to be ascertained, the average weight of the matter transported being the controlling factor; and, for the purpose of ascertaining such weight, it is enaoted that the average weight is to be ascertained by the actual weighing of the mails for such anumber of successive working days, not less than 30, and at suoh times as the postmaster general may direct, but not less frequentJy than once in four years. In the indictment now under oonsideration it is charged that John C. Newton was, at the times therein named, the vice-president and general manager of the Des Moines & Kansas City Railway Company, a corporation engaged in operating a line of railway from Des Moines. Iowa. to Cainsville, Mo., and over which line the public mails of the United
UNITED STATES Vi NEWTON.
were and are transported; that, for the purpose of ascertaining and fixing the rate of compensation to be paidby,the United to said railway company for the transportation of the mails over its line of road from and after July 1, 1,891, the .proper officers of the postal department ordered that the mail matter passing over the line of said railway, should be weighed for 30 successive working,days from and after April I, 1891, and that such w'eighing was done in accordance with such lawful order, and for the purpose aforesaid; that the defendants well knew that such weighing of the mails was about to be made for the pur.. poses aforesaid, and, for the purpose of deceiving the officials of the United States having charge of such weighing of the mails, and for the purpose of defrauding the United States by falsely causing it to appear that the average weight of mail matter transported over such line of railway :was largely in excess of the actual average am0unt usually carried over such road. and thereby causing the United States to pay to said railway company -a compensation largely in excess of the amount actually earned, the said defendants did conspire together to defraud the causing to be sent,over such line of railUnited States. by way, during the days the mail matter thereon was being weighed, a large amount of old newspapers, periodicals, and other like materials, weighing many hundred pounds; the same being so serit, not for the purpose of being delivered to the parties to whom it was addressed, for their use and benefit, but solely that it might be weighed during transportation, and thus fraudulently increase the weight of mail matter for which the eompany would be paid after the transportation of such material had ceased. To this indictment a demurrer has been filed upon several grounds, ,the principal one being that the object of the conspiracy is not shown to be criminal, under the laws of the United States, nor is it made to appear that the means made use of or contemplated in the carrying out of the conspiracy were in themselves criminal. A very able argument has been made by the counsel for the defendants in support of the propositions that to make out a case of indictable conspimcy to defraud the United States, under the provisions of section 5440,_ above cited,it must appear that the object of the conspiracy is to accomplish some act which the laws of the United States declare to be a crime or fraud; that it is not competent for the court or jury to define the acts which, if brought about, or attempted to be brought about, by means of a combination or conspiracy, will constitute a crime under this section, as being a criminal fraud; that to constitute a crime it must appear that when the acts complained of w&e done there was in existence a statute forbidding the doing thereof; that it cannot be supposed that congress, in enacting the general terms found in section 5440, relative to a conspiracy to defraud the United States, meant to declare that all acts which a jury might find would work a fraud upon the United States were therefore to be deemed crimes, and to be punishable as such, but that the true construction of the section is to hold that the same forbids and punishes all conspiracies to commit any offense against the United States,-that is, a conspiracy to do an act, which, if done, would itself be
FEDERAL REPORTER I
of the United States,-lIndfurther, all oonspiraciestodoacts or accomplish results which are forbidden by the stat'tltesof the' United States, and which, if done or would defraud the,United States in any manner, or for any purpose. In support. of these views are cited, among others, Btate v. Jonea, 13 Iowa, 269; Btate v. Potter,28 Iowa, 555; State v. Stevens, 30 Iowa, 391; U. S. v. Cruikshank, 92,U. S. 542; U. S. v. Britton, 108 U. S. 199, 2 Sup. Ot. Rep. 531; In'l"e Wolf, 27 Fed. Rep. 606; U. S. v. Watson, 17 Fed. Rep. 145. , ,Without entering upon a specific discussion of the general propositionsthus advocated by counsel for defendants, we may llaythatwe do not C9Dcur in the practical conclusions sought to be based thereon. We have aited 80 far only the provisions ofsection 5440, because counsel assume tbat the same constitute the only foundation forthepresent indictinent;but this is not the logical result of the very line of reasoning employed:by counselin support of the general propositions already stated. If the object sought to be accomplished by the alleged conspiracy to defraud is declared to be a punishable crime by any section of the statute of the United States, then counsel admit that, under, section 5440, an indictment charging a conspiracy to defraud the United States by means of some act,which, if done, would be thus punishable, is sustainable, it being also charged that some overt act in furtherance of the conspiracy; bas, been done: ,What then, in fact, does the indictment aver was ,the object:ofthe conspiracy charged againsithe defendants?:, ,Briefly stated, the object :of tbe conspiracy is averred to be the aiding the Des Moines & Kansas:Oity Railroad Company in obtaining paymeilt from the United States o.f a false and, fraudulent claim for services in transporting the publJic,mails .o.ver the line of its railway., .. The means by whichi it was proposed, to: this end are fully set forth in the indictment, and the statement of the means employed show that, j f they had been per.. niitted' to 'work out their iQ:tendedand .natural consequences, there would have been obtainedffomthe United States the payment of a false and fraudulentclaim,-.'\"'false, because it would bave included a large amount never'earned, and fraudulent, because ·such. amount: had ll11yincreased by the Iiefarious means set forth in the indictment. The object of the. conspiracy was not, as is .suggested bycQunsel, to increase the amount·of man matter passing over the line of railway, but to in..; crease, the amount of the claim against the United 8tatestor the transp9rtation of··mail matter over such railway from and after Julyl, 1891" or, in other words, the-defendants are charged with the offense of entering. into a combination orcbnspiracy to defraud the United States, by aJding.tbe Des Moines· & Kansas City Railroad Company in obtaining paymemt,ofa false and fraudulent claim,which would he a violation of the .provisioilS of seotion 5438, which enacts that "every person * * * who .enters. inti> any agreement, combination, or conspiracy to defraud tlie,UriitedStates,' or any department or officer thereof, by obtaining, oraidingto obtain, the payment of any false or fraudulentclaim/' shall be punished by fine or imprisonment; in other words,the entering into.
any agreement or combination to obtain, or aid in obtaining, thePl\Y" ment of a false or frau.dulent claim from the United States is declared, by this, section of the statute, to be a criminal defrauding of the United States, to be punished by fine or imprisonment. Therefore, an indict.. ment, which charges two or more parties with entering into a conspiracy to defrau.d the United States, by means of a combination to obtain, or aid inohtaiping, the payment of a false or fraudulent claim from the United States, the doing of some overt act in furtherance of the conspiracy being also charged, is sustainable under the provisions of section 5440, according to the doctrine of the authorities relied on by counsel for defendants, ,and no good reilson is now perceived why it would not be good under the provisions of section 5438. The indictment under consideration ,in apt language avers that the defendants conspired to.. gether to, defraud the United States by means of a combination or agree.. ment between themselves and others, whereby they purposed to place; or caused to be placed, in the mail-car used for transporting the mail over the line ofthe Des Moines & Kansas City Railroad Company, during the days when the weighing of the mail matter was to be done under the or.. derflof the pOfltal authorities, a large amount of old newspapers, the same no-t, beillg mailed for any legitimate purpose, but solely that thereby the claim on behalf of thl> railway company for compensation for carrying the mails after should belargely,(lQd fraudulently,increased, and that thereby the railway company would be enabled to obtain from the United States payment of a 'false and fraudulent claim, and the overt acts done in furtherance of such fraudulent conspiracy are set forth at length; in other words, the indictment charges a conspiracy to defraud the United States by means of an agreement or combination intended to aid the Des Moines & Kansas City Railroad Company in obtaining payrrteptof a false, and fraudulent claim for mail service from the United States; and; as the combining or agreeing' together to obtain payment from the United States of a false or fraudulent claim is itself a c1'inledefttfedfn the statutes of the United States, the indictment case contains all the requisites contended for in the argument of counsel for defendal11s and the authorities cited in support thereof. It is further contended in support of the demurrer that the indictment is flltapydefective in that it is not averred that the defendants spired 'any named person, or that it was the purpose of the conspiracy to secrete the object and purpose of the conspiracy; that it is not shown that necessarily the United States would have been defrauded,M the postal authorities were not bound by the weighing done during the named 30 days, but might have ordered another weighing; that it is not averred that the matter illegally weighed was of a weight sufficient to have entitled the railroad company to increased compensation; or that it was not contemplated that the mail matter illegally forwar(led should be continued to be forwarded after the expiration of the 30days during which ,the weighing was done. None of theseexceptions,are)Vell fO}lnded. To sustain a of cOllspiracy to defraud, it the. contemplatedfl'aud has I:?een cllrried
defraud theUnitediStates by aiding in obtaining payment:o( a false cla.im, is it necessary: to prove that payment was in fact obtained, nor isitreqtiired that the indictmen,t should aver what particular official might hnvebeen deceived if .theconspitacy had been carried to '8 :successful'issue. If the indictment was intended to charge a conspiracy to defraud some particularperson, by practicing a deceit upon him, then, asa.rgued by counsel, it 'might be necessary to aver the particulars ,of the intended the' named 'person; deceit, I1nd that the same would operate to but the indictment against the present defendanm charges a conspiracy to defraud the United States"the means to be employed being the aid given the railway company in obtaining payment from the United States the milils. The indictment of a false claim for services in avers the party intended to be rlefrauded, to-wit,toe United States, and that is all that is tequired in this particular. Without further extending this opinion, it is sufficient to say that we think the indictment charges an oflense against the laws of the United States, and states the facts relied on with fullness of detail sufficient to advise the defendants of the accuSl\tion laid against them. This being so, the demurrer thereto must be overruled; and it is 80 ordered. WOOLSON, J. I concur in the foregoing opinion.
to '8 suooegful ii'seue", nor, 'when :ihe charge is of B
s. D. New
York. November 19, 1891.)
COPYRIGHT OJ' PHOTOGltAPB-INFRINGBMENT-PLEADINo.
In a bill for an injunction against the copyright of a photograph, au allegation that complainant "is the author, lDventor, and proprietor of a certain photograph and negative thereof, known and entItled 'Photograph No. 23 of Lillian Russell, by B. J. Faiki N. Y.,!" is suftlcient without giving a detailed description of the method of prOQucing the photograph, or attaching a copy thereof to the bill.
It is suftlcient if the notice of inscribed on a photograph reads,"IS89. Copyrighted by B. J. Fa[k, New York, instead of "Copyright, 18811, by B. J. Falk,· as required by the literal directions of tll.e statute.
In Equity. Suit to restrain infringement of copyright. rer to bill. Demurrer overruled. lBaac N. Falk and Roland' Oox, for plaintiff. John B. Talmage and Augu8tu8 T. Gurlitz, for defendants.
COXE, J. The complainant, as the proprietor of a photograph of Lillian Russell, prays for an injunction restraining the defendants from infringing his copyright. The first objection taken by the demurrer, that the bill does not show that the oomplainant, at the time he pro-