254 DIstrIct Judge. _
88 FEDERAI,o REPORTlllR.
and ' :, ,,:,:
Judges, an,.d SBIRAS, ., , ,
. THAYER, CirQuit Judge. ,Ben R,\Staton,the plainttlt in was indicted undE'W an indictment,containing two counts, in the district court of the. United States for tbe.Eastern district of Arkansas. The indictment on its. face purpqrted to have been framed on the of sections 5418,5421, and 5479 of the· Revised Statutes of the United States."The first count of the indictment that said Staton, on July 3, 1894, in the Western division of the Eastern district of Admnsas, "did tben and there willfully, unlawfully, willingly, falsely, and feloniously make and forge a certain affidavit and writing to his quarterly postal account and return for the quarter June 30, 1894, to the auditor for. the post-office department, which said affidavit and writing is in words and1J,gures as follows, to wit." The alleged forged affidavit was then setout inhrec verba, :the same being an affidavit which ,purported to have been sworn to before "M. R Stokes, J. P.." and was,in form and substance the usual affidavit which postmasters are to affix Qr.attach to their quarterly reports. The second count of the indictmeJ,lt charged the accused with the, commission of a similar offense On October 2, 1894,.in that he had attached to his quarterly return for the quarter ending September SO, 1894, a forged affidavit made, before "M. H. Stokes, J. P." The second count, however, differed from the first count in that it further alleged that M. H.,Stokes, justice of thepell,ce, did, not sign his name to said affidavit; that the name of the justi<;ehad been signed thereto by said Staton; and that the ,act was c.Qll1Jllitted by the accused "with intent to defraud the United States,(,lOntfary to the form ,of thestatuteiqsnch case made and provided." Thl'lfirst count of the indictment contained no allegations similar to th()se last aforesaid charging that the accused had signed the name of Stokes with an in{ent to defraud. On the trial of the indictment, the accused testified in his own favor, in substance, as follows: That while he did sign the name of "M. H. Stokes, 'J. P.," to each of the quarterly reports of date June 30 andSeptemlH:!r 30,1894, yet that the name of the justice was so signed by direction of said j,usticebecause the latter was busy at the time, and did not wish to take tp.e tl.'{}uble to aJ,li1 his official signature to the reports; that the returns were in all ,respects true and correct; and' that the defendant bad no purpose Or' intent to defraud the'United States or to obtain money or credit to which he was not .' . ' ..,. ., ., ,.' '. ' The defendant,rrequested the trial oo;ort to charge, the jury in his behalf as folIows: l items' lllbraced in the returns or accounts were 'correct, andeontained' no false'entry or claiDliRnd there was no i,u,tent oIi the"patfOf the to, government something that he was not 'entitled' to in the waYJ)fWQney or credit, heis entitled t()anacquittal." But the court declined to do so, and thereiIponcMl'ged'the jury to the 'contrary of ll'nd in substance as follows: That, even if the accused'd'U'fha:ve authority from Stokes to sign the latter'smame to the jur.a.ts"wJ1jch were. attached to the affidavits to his quarterly reports,Yl¥t;ill.S'a: perSOn clin·
STATON1V.UN.ETED STATES.
255
not administer an oath to himself, the fact that the accused signed the name of the justice of the':Peaeeto the returns, and presented the same to the government, when .hebad noUn fact sworn to them before the justice, constituted the crime of forgery, and that the jury should so find. No attempt is made by counsel for the government to support the action of the trial court in the respects last stated, under the provisions of sections 5418 and 5479 of the Revised Statutes, the same peing two of the sections referred to on the face of the indictment, under which it purports to have been drawn. These sections in express terms provide that the making, altering, forging, or counterfeitin:gofthe various'instruments and writings to which those sections refer shall be an offense when done "for the purpose of defrauding the United States"; and inasmuch as the trial court in its charge altogether ignored the intent with which the acts complained of had been committed, and instructed the jury that the accused was guilty of the crime of forgery if he signed the name of the justice to his reports, even with that officer's consent, and subsequently presented the reports to the government, it is manifest that there was error in the charge if we regard the indictment as founded on the two sections of the statute last above mentioned. . It is contended, however,-and this seems to be the sole reason urged in support of the charge,-that the indictment was drawn under section 5421 of the Revised Statutes, and that inasmuch as the defendant admitted that he had intentionally signed the name of the justice of the peace to his reports, and subsequently presented the reports to the auditor of the post-office department, the question of intept was eliminated from the case, and no finding thereon by the jury was requisite. It is a sufficient answer to this contention to say that indictment was not based on section 5421 of the statute, or, if it was the intention of the pleader to found it thereon, that it was insufficient. Section 5421 provides that "every person who falsely makes, alters, forges or counterfeits * * * any deed, power of attorney; order, certificate, receipt, or other writing, for the purpose of obtaining or receiving * *' * from the United States or any of their officers or agents any sum of money, * * * shall be imprisoned," etc.; and neither count of the indictment in question charged, as it should have done if drawn under that section, that the act complained' of 'was done for the purpose of obtaining from the United States a; sum Of money. Moreover, the second count of the indictmentexpre::Jsly charged that the act complained of was done "with intent to defraud the United States." We think it Clear, therefore, that the indictment must be regarded as based on sections 5418 and 5479 of the Revised Statutes, rather than on section 5421; that the element of intent was involved in the issue; and that the ,accused was entitled to have the. jury determine, it being one 'Of the' necessary ingredients of the offense charged in the bill; ,whether 'lie had been actuated with an intent to defraud the United States. " It results from these views that the judgment of the district court must be reversed, and the cause remanded for a new trial. It will be· so ordered.
256
88 I'JIlDJllRAL RJllPORTJIlR.
BURROUGHS v. ERij:ARDT. (Olrcult Court of Appeals, Second 01tcu1t. June 24, 1898.) No. 104 CUSTOMS DUTIEll-MONEY DEPOSITED WITH COLLEOTOR-RECOVERY
BAClX. Money deposited with tbecollector as security (additlonalto that of the Importer's bonds) for payment of duties assessed, and actually applied to the payment of duties, cannot be recovered back, in the absence of A protest, even If the duties were wrongfully assessed.
In Error to the Circuit Court of the United States for the Southern District of New York. This cause comes here upon writ of error sued out by the admin· istratrix of plaintiff below to review a judgment of the circuit court, Southern district of New York, in favor of defendant below, the collector of the port of New York, upon a verdict directed in his favor by the circuit judge. C. B. Barker, for plaintiff in error. Arthur.M. King, Asst. U. S. Atty., for defendant in error. Before WALLACE and LACOMBE, Circuit Judges. PER CURIAM. It is practically not disputed that if the $6,000 in controversy was deposited With the collector to secure the payment of duties assessed upon plaintiff's merchandise, even though such duties may have been wron,gly so assessed, it cannot be recovered back, since no protest was filed The difficulty with the case is that, even upon the plaintiff's own evidence, this is precisely the purpose for which the deposit was made. Plaintiff testifies that it was deposited because the government officers "did not consider [his] bonds were sufficient to protect the government; they wanted additional security." The amended complaint avers that the. deposit was made "as a guaranty of good faith in making entries for warehouse," and "as security to the United States against any loss in case the warehouse bonds were not sufficient to cover all the lumber!' But the only object of the warehouse bond is to protect the govern· ment against failure to pa1 duties; the only possible loss consequent upon insufficient bonds would be a loss of duties. The bond is security placed in the hands of the government, from which, in the event of the importer's fail,ure to pay duties assessed upon his goods, such payment may be obtained. The $6,000 in gold was manifestly deposited for a like purpose. We are unable to conceive of any theory upon which, assuming plaintiff's statements to be entirely accurate, a single dollar of it was to be paid for anything except duties. It was used up (except for the small balance returned) in making payments of duties assessed against plaintiff's g09dS, and, aaction of such duties, in the absence of any protest against be recovered back.