Bailey v. United States
| Decision Date | 07 June 1926 |
| Docket Number | No. 4754.,4754. |
| Citation | 13 F.2d 325 |
| Parties | BAILEY v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John W. Ray, of Phœnix, Ariz. (W. L. Barnum and R. C. Stanford, both of Phœnix, Ariz., of counsel), for plaintiff in error.
Geo. T. Wilson, Asst. U. S. Atty., of Phœnix, Ariz.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
This is a writ of error to review a judgment of conviction under section 29 of the Criminal Code (Comp. St. § 10193). There is no controversy over what we deem to be the controlling facts. Some time prior to April, 1921, one George Frederick Boland died intestate at Tucson, Ariz., leaving an estate in Pima county, in that state, subject to administration. The only property belonging to the estate having any value or calling for administration was a claim against the United States for compensation of some kind, and a claim for insurance as a soldier. Roy J. Hockrey, a half-brother of the decedent, consulted an attorney residing in Phœnix in reference to these claims, but was informed by the attorney that he could not give proper attention to the matter, as it would take him out of the county. The attorney thus consulted then introduced the half-brother to the plaintiff in error. Pursuant to this introduction, the plaintiff in error was retained and employed to collect the claims in question. He immediately caused the half-brother to be appointed administrator of the estate, and thereafter prosecuted the two claims against the government in the name of the administrator before the proper department or departments. As a result of his endeavors the claim for compensation was allowed in the sum of $190.32, but the claim for insurance was disallowed. Whether the disallowance of the latter was final or not is not material.
A check or draft for the amount of the claim, as allowed, payable by the United States, through its Treasurer, to the order of Hockrey, as administrator of the estate of George Frederick Boland, came into the possession of the plaintiff in error, as attorney for the estate, and the latter indorsed the check or draft in the name of the administrator, adding his own name to the indorsement. He then deposited the check or draft to his own account in the bank. Pursuant to this indorsement the amount of the check or draft was paid by the United States to the bank. This occurred early in the year 1922. The plaintiff in error did not account to the administrator for the money thus collected and received until some time early in the year 1925, when he was called upon by a special agent of the government. The special agent then presented a photostatic copy of the draft or check, and the indorsement thereon by plaintiff in error, and demanded payment. The plaintiff in error admitted that the indorsement was his and paid the amount to the special agent. Later the present indictment, containing two counts, was returned against the plaintiff in error. The first count charges the forgery of the indorsement on the check or draft, for the purpose of receiving from the United States, through its Treasurer, the amount thereof, and the second count charges the uttering and publishing of the forged indorsement with intent to defraud the United States.
More than three years and four months elapsed between the date of the commission of the offenses charged and the date of the return of the indictment by the grand jury, and because of this lapse of time the plaintiff in error demurred to the indictment and interposed a plea in abatement, based on the three-year statute of limitations. The demurrer and plea were overruled and upon these rulings the first assignment of error is based. The amendment of November 17, 1921, to section 1044 of the Revised Statutes (42 Stat. 220 Comp. St. Ann. Supp. 1923, § 1708), contains the following proviso: "Provided, however, that in offenses involving the defrauding or attempts to defraud the United States * * * the period of limitation shall be six...
To continue reading
Request your trial
-
Palomo v. State Bar
...401, 404-405; Crahe v. Mercantile Trust & Savings Bank (1920), 295 Ill. 375, 129 N.E. 120, 121; but see, e.g., Bailey v. United States (9th Cir.1926) 13 F.2d 325, 326-327; John Bean Mfg. Co. v. Citizens Bank of Gainesville (1939) 60 Ga.App. 615, 4 S.E.2d 924, 926; Dacus v. Maryland Casualty......
-
Morris v. Ohio Cas. Ins. Co.
...37 A.L.R.2d 453, 491-497. Therefore, while we recognize that the decisions on this question are in conflict, see Bailey v. United States (C.A. 9, 1926), 13 F.2d 325 and Vandiver v. McFarland (1986), 179 Ga.App. 411, 346 S.E.2d 854, we believe that the better rule is that an attorney possess......
-
Hopper v. United States
...in the bill of exceptions that the motion was made at the conclusion of the evidence. We have held the exact contrary. In Bailey v. United States, 9 Cir., 13 F.2d 325, in reversing the judgment of the lower court finding the defendant guilty of defrauding the United States, Judge Rudkin's o......
-
Pope v. State
...was authorized to find that appellant had falsely indorsed the Morrisons' names on the $2,500 check. The holding in Bailey v. United States, 13 F.2d 325(2) (9th Cir.1926), is also distinguishable from the case at bar. In Bailey, the defendant attorney was still employed as such at the time ......