60 F.2d 774 (7th Cir. 1932), 4783, Roberto v. United States

Docket Nº:4783.
Citation:60 F.2d 774
Case Date:July 15, 1932
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 774

60 F.2d 774 (7th Cir. 1932)




No. 4783.

United States Court of Appeals, Seventh Circuit.

July 15, 1932

Rehearing Denied Oct. 7, 1932.

Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division.

Clarence P. Parker and James L. McDowell, both of Chicago, Ill., for appellant.

George E. Q. Johnson, U. S. Atty., and Eugene A. Tappy, Asst. U. S. Atty., both of Chicago, Ill.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.


Appellant was charged in three counts of an indictment with having violated section 23 of the Naturalization Act of June 29, 1906 (title 8, § 414, U.S.C. [8 USCA § 414]) in falsely stating on oath, in a naturalization proceeding, that he was a single man. He first pleaded not guilty, but later withdrew the plea and filed successive demurrers

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which were overruled. Thereafter, he again pleaded not guilty and moved for a bill of particulars and then withdrew his plea of not guilty and entered a plea of guilty as to counts 1 and 2. The court entered a nolle prosequi as to the third count. A penitentiary sentence and fine were imposed upon each count. The penitentiary sentences ran concurrently. On appeal, it is argued that neither count of the indictment charged appellant with the commission of a criminal offense.

While the indictment ws not drawn with the attention to detail and with the precision which is always desirable, we cannot say that either count of the indictment is fatally defective.

The objections to the second count of the indictment are that it fails to charge that appellant's alleged false statement was made in open court; that his affidavit was not sufficient upon which to predicate false oath; and that it does not negative appellant's statement that he was unmarried.

Taking up the third objection first, we quote from the indictment: 'And the grand jurors, * * * do further present, that the said defendant, being duly sworn, and having taken his oath aforesaid, * * * unlawfully, feloniously, wilfully, corruptcy, and contrary to his oath, did swear and testify * * * amongst other things, in substance and to the effect following, that is to say, the said defendant, was not married, whereas the said grand jurors aforesaid, upon their oath aforesaid, do charge the fact to be that he, the said...

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