Roberto v. United States, 4783.

• Decision Date: 07 October 1932
• Docket Number: No. 4783.,4783.
• Citation: 60 F.2d 774
• Parties: ROBERTO v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

60 F.2d 774 (1932)

ROBERTO v. UNITED STATES.

No. 4783.

Circuit Court of Appeals, Seventh Circuit.

July 15, 1932.

Rehearing Denied October 7, 1932.

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.

PER CURIAM.

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 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 was 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 appellants 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, corruptly, 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 defendant, then and there well knew that he, the said defendant, was married then and there to one Raye Roberto. * * *"

Our conclusion is that these allegations sufficiently charge appellant with making the false statement that he was not married. In view of the nature of the proceeding and the subject of inquiry, such false statement was in respect to a material relevant fact. United States v. Marcus (D. C. N. J.) 1 F. Supp. 29, decided July 30, 1932.

Appellant's contention that a violation of this section cannot be predicated upon a statement made upon information and belief may be disposed of by quoting from appellant's verification of the petition which he presented to the court and upon which he sought a naturalization decree.

"The aforesaid petitioner being duly sworn, deposes and says that he is the petitioner in the above-entitled proceedings; that he has read the foregoing petition and knows the contents thereof; that the said petition is signed with his full, true name; that the same is true of his own knowledge, except as to matters therein stated to be alleged upon information and belief, and that as to those matters he believes it to be true."

The false answer he made and for which he was indicted reads as follows: "I am not married." This answer was not on information and belief. Appellant's statement "that the same is...