Elliott v. Hudspeth

¶4PHILLIPS, Circuit Judge.

¶5This is an appeal from an order denying a petition for a writ of habeas corpus.

¶6Petitioner was charged in the District Court of the United States for the Western District of Louisiana by indictment containing three counts, with violations of 18 U.S. C.A. § 76.1

¶7*390Petitioner, at his own request, was removed from the United States Penitentiary at Leavenworth, Kansas, to the District Court of the United States for the Western District of Louisiana, where he entered pleas of guilty to each count of the indictment. He was sentenced to a term of five years to commence at the expiration of the term he was then serving in the United States Penitentiary at Leavenworth, Kansas.

¶8Count 1 of the indictment charged that on or about January 26, 1935, in the Western District of Louisiana, petitioner, with intent to defraud E. C. Gibson, did knowingly, wilfully, unlawfully, feloniously, and falsely assume and pretend to be an officer and employee, acting under the authority of the United States, namely, an engineer in the employ of the United States Geodetic Survey, Soil Erosion Service, and did take upon himself to act as such.

¶9Count 2 charged' that petitioner, at the same time and place, with intent to defraud E. C. Gibson, did knowingly, wilfully, unlawfully, and feloniously, in such pretended character of officer and employee, claiming to act under the authority of the United States ds set forth in count 1, demand from Gibson a thing of value, to-wit, the sum of $10. The third count charged the same facts as count 2 except that it averred that petitioner obtained from Gibson a thing of value, to-wit, the sum of $10.

¶10Petitioner contends that the several counts of the indictment fail to charge an offense because there is no such federal officer or employee as an engineer in the United States Geodetic Survey, Soil Erosion Service, and that if they charge an offense, it is but a single offense and the sentence is excessive.

¶11There is a United States Coast and Geodetic Survey, with engineers commissioned as naval officers,2 but even if there were no such department or agency of the United States, and the whole pretense were false, the statute was violated. See United States v. Barnow, 239 U.S. 74, 76, 77, 36 S.Ct. 19, 60 L.Ed. 155, and Lamar v. United States, 241 U.S. 103, 113-116, 36 S.Ct. 535, 60 L.Ed. 912.

¶12The statute defines two separate and distinct offenses, one, the assuming and pretending to be an officer or employee acting under the authority of the United States and taking it upon himself to act as such, the other, in such pretended character, demanding or obtaining any money, paper, document, or other valuable thing. See United States v. Barnow, supra.

¶13It is clear that count 1 charges the first offense defined in the statute and that counts 2 and 3 charge the second offense defined in the statute. It follows that the sentence was not excessive.

¶14The order is affirmed.