Curley v. United States

Citation130 F. 1
Decision Date01 March 1904
Docket Number506.
PartiesCURLEY et al. v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

In Error to the District Court of the United States for the District of Massachusetts.

For opinion below, see 122 F. 738.

1. CONSPIRACY TO DEFRAUD THE UNITED STATES-- STATUTES-- CONSTRUCTION.

Rev St. Sec. 5440 (U.S. Comp. St. 1901, p. 3676), providing that if two or more persons conspire either to commit any offense against the United States or to defraud the United States in any manner for any purpose, and one or more of such parties do any act to effect etc., should be construed as declaring not only against conspiracies to commit offenses, but also to conspiracies to defraud the United States, and to punish such conspiracies when supplemented by an overt act, though the wrong has not become effectual in its purpose.

2. S CONSPIRACY TO DEFRAUD THE UNITED STATES-- SUBSEQUENT RIGHTS-- CREATION.

Rev. St. Sec. 5440 (U.S. Comp. St. 1901, p. 3676), prohibiting and providing for the punishment of conspiracies to defraud the United States, applies with equal force to rights of the United States created subsequent to its passage, as well as those previously existing.

3. CONSPIRACY TO DEFRAUD THE UNITED STATES-- CONSPIRACY TO DEFRAUD.

The term 'defraud,' as used in Rev. St. Sec. 54440 (U.S. Comp. St. 1901, p. 3676), prohibiting and providing for the punishment of conspiracies to defraud the United States in any manner whatsoever on the doing of any act, by any of the conspirators, intended to effect the object of the conspiracy, should not be construed as limited only to frauds respecting property rights, but to include the deprivation of a right by deception or artifice.

4. CONSPIRACY TO DEFRAUD THE UNITED STATES--

Defendant H., desiring to procure appointment as a letter carrier, a position in the classified civil service of the United States, unlawfully agreed with defendant C. that the latter should falsely impersonate H. at a civil service examination, and do all acts required by the examiners, and sign H.'s name to the examination papers to be delivered to C. for examination while he should impersonate H. C., in pursuance of such conspiracy, gained entrance to the examination, and falsely signed H.'s name to a declaration sheet which was required to be in the handwriting and on the honor of the applicant. Held, that such facts constituted a conspiracy to defraud the United States, prohibited by Rev. St. Sec. 5440 (U.S. Comp. St. 1901, p. 3676).

Heman W. Chaplin and Henry W. Dunn, for plaintiffs in error.

Henry P. Moulton, U.S. Atty., and William H. Lewis, Asst. U.S. Atty.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

ALDRICH District Judge.

This case, novel in its character and aspects, has been argued with marked ability and clearness on both sides. The statement of the case appearing the record sufficiently presents the general situation to enable us to consider the questions involved under the assignment of errors. It is as follows:

'The indictment is for conspiracy against the United States, and sets forth that Hughes, desiring to procure an appointment as letter carrier, a position in the classified civil service of the United States, and for the purpose of procuring the placing of his name on the list of persons eligible to appoint as letter carriers, and for the purpose of defrauding the United States, unlawfully agreed with Curley that the defendant Curley should falsely impersonate Hughes at a civil service examination, and do all acts required by the board of examiners, and sign the name of Hughes to such examination papers as should be delivered to Curley for examination while he should personate said Hughes; that Curley, in pursuance of said conspiracy, did falsely and unlawfully gain entrance to an examination, and, for the purpose of defrauding the United States, did falsely make a certain writing known as a 'Declaration Sheet.' There are also allegations of presenting false papers to an officer of the United States.
'The indictment contains three counts: The first, a conspiracy to defraud the United States, under section 5440, Rev. St. (U.S. Comp. St. 1901, p. 3676); the second, a conspiracy to commit an offense against the United States, to wit, an offense set out in section 5418, Rev. St. (U.S. Comp. St. 1901, p. 3666), to falsely make a writing for the purpose of defrauding the United States; the third, a conspiracy to commit an offense against the United States, the offense being under section 5418, Rev. St., to wit, to present a false writing to an officer of the United States.'

The various counts of the indictment set out with particularity the object of the conspiracy, the means employed, and the acts done in furtherance thereof. The first count also sets out verbatim the application for examination, the regulation vouchers, three in number, the answers of which are required to be in the handwriting of the voucher, all of which purport to be signed by Hughes; and the second and third counts set out what is called the 'Declaration Sheet,' which purports in its phraseology and signature to be in the handwriting and upon the honor of Hughes, such examination papers being originally supplied, as is understood, by the government, and show some of the precautionary regulations of the civil service department of the government, designed for the purpose of ascertaining the qualifications of applicants for official position in the Post Office Department.

The case first came up for consideration before Judge Brown in the District Court upon general demurrer, wherein the point was taken that neither count of the indictment set forth an offense against the laws of the United States. The demurrer was overruled, and the defendants excepted. The case was subsequently tried before Judge Lowell and a jury, the defendants were convicted, and after sentence the case was brought to this court by writ of error.

The assignments of error are based upon exceptions duly taken, and are against alleged error in overruling the demurrer to the various counts, and to alleged error upon the subsequent trial in refusing to grant the request for a ruling to the jury that there was no evidence to warrant a verdict of guilty, for the reason that the facts alleged and in evidence set forth and constitute no crime against the United States, and alleged error in refusing to rule that neither count of the indictment charged an indictable offense, for the reason that the facts alleged and in evidence set forth and constitute no crime against the United States.

No point was taken at the trial that the proofs did not sustain the allegations of the indictment, or that the elements of the wrong complained of were not described with sufficient certainty and particularity to bring the indictment within the rule (United States v. Cruikshank et al., 92 U.S. 542, 558, 23 L.Ed. 588) which requires, where statutes use generic terms in declaring an offense, that the indictment must descent to particulars and describe the wrong. The sole or principal contention in that court was that the facts alleged did not constitute an offense within the meaning of the statute. And the principal contention of the defendants here is that the word 'defraud,' in its ordinary common-law acceptation, has reference to property and property rights, and the case largely, and perhaps wholly, depends upon the sense in which the word 'defraud' was used in the statute under consideration. Was it intended to limit the scope of the statute to frauds upon property and property rights of the government, or was it intended to use the word in a broader sense, and for the protection of intangible rights, privileges, and functions of the government?

Speaking generally, the wrongs, whatever they are, contemplated by the second part of section 5440 (page 3676), under which the first count of the indictment was drawn, must relate to a purpose to defraud the government, and the false papers contemplated by section 5418 (page 3666) must have reference to a like purpose, and counts 2 and 3 are drawn upon that theory. This being so, the question of construction, raised under one section, in effect relates to the other, and the same is true as to the various counts, so far as we can see, and this is so because the purpose to defraud is an essential element of section 5418 and the second part of section 5440, as well as an essential feature of the various counts of the indictment.

Some stress has been laid upon the position, though it is not the main contention, that section 5440 of the statute should not be construed broadly in either of its aspects, but strictly. In support of this position it is suggested that, if construed broadly, it will include offenses with penalties different from those of the statute in question. The answer to that particular argument, quite likely, is that, while the purpose of statutory laws describing particular offenses in respect to the various ramifications of the government deal with completed wrongs, the purpose of the statutes in question was to deal with wrong in its incipient stages. The case In re Coy, 127 U.S. 731, 8 Sup.Ct. 1263, 32 L.Ed. 274, involved a count based upon the first part of section 5440, and alleged a conspiracy to commit an offense against the United States which related to the federal election laws-- an offense which was punishable by law-- and the indictment was sustained. The case of United States v. Sacia (D.C.) 2 Fed. 754, involved an allegation of conspiracy to defraud the government of its rights under a will, and while the expression in that case, that the statute in question doubtless intended to meet the party to the fraud against, the government on the very...

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