Dimmick v. United States

• Decision Date: 05 May 1902
• Docket Number: 785.
• Parties: Dimmick v. U.S.
• Court: U.S. Court of Appeals — Ninth Circuit

116 F. 825

Dimmick v. U.S.

No. 785.

United States Court of Appeals, Ninth Circuit.

May 5, 1902

Geo. D Collins, for plaintiff in error.

Marshall B. Woodworth, for the United States.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS Circuit Judge.

The plaintiff in error was charged by indictment with the commission of certain crimes against the laws of the United States. The indictment contained four counts, on the first and fourth of which the jury impaneled to try the case returned a verdict of guilty, upon which a judgment sentencing him to imprisonment in the state prison was entered. The second and third counts of the indictment are eliminated from consideration by the verdict of not guilty in respect to the third and the action of the court below in sustaining a demurrer to the second count. The first count charged, in effect, that on the 7th day of April, 1900, at the city and county of San Francisco, Cal., Dimmick knowingly, unlawfully, and feloniously presented to W. K Cole, who was then and there cashier of the mint of the United States at San Francisco, a certain claim for payment which Cole was authorized to pay, and which claim was for the sum of $498.37, for 4,997 pounds of sheet lead, and 1,911 pounds of lead pipe, which sheet lead and lead pipe had theretofore been purchased at San Francisco by the United States for its mint at that place from the Selby Smelting &amp Lead Company, a corporation, the particular items of which claim appear in a copy of the claim annexed to the indictment marked 'Exhibit A' and made a part thereof, and which shows upon its face the items to have been brought by the United States mint at San Francisco of the Selby Smelting & Lead Company, aggregating in amount $498.37, and upon which claim appeared the following indorsements: 'Paid, March 26th, 1900. Selby Smelting & Lead Company, per H. B. Underhill, Jr., Scy. Correct: Frank A. Leach, Superintendent.'

The indictment in its first count alleges that the said claim at the time and place of its presentation for payment by Dimmick to Cole as such cashier was

-- 'False, fictitious, and fraudulent, in this: That the said claim had theretofore, on the twenty-sixth day of March, in the year of our Lord one thousand nine hundred, been wholly paid by the United States, and the articles set out in said claim had theretofore, to wit, on the said last-mentioned date, been fully paid for by the United States, and that at the time and date, been fully paid for by the United States, and that at the time and place of making the said claim and presenting the same for payment the said claim was not due or owing by the United States to the Selby Smelting & Lead Company, or to any other person, and was not due or owing at all. That on the twenty-sixth day of March, in the year of our Lord one thousand nine hundred, the said Selby Smelting & Lead Company aforesaid had received from the United States of America the said sum of four hundred ninety-eight and thirty-seven one-hundredth ($498.37) dollars in full and complete payment of said claim, and for the articles set out therein. That the said Selby Smelting & Lead Company had no other or further charge or claim against the United States of America, or against the mint of the United States at San Francisco, state and Northern district aforesaid, on account of said claim or of the sale of the articles therein set out. The said Walter N. Dimmick then and there, at the time and place of the presentation of said claim as aforesaid, well knew that said claim was false, fictitious, and fraudulent as aforesaid, and well knew that said claim had been paid on said twenty-sixth day of March, in the year of our Lord one thousand nine hundred, and then and there well knew that on the twenty-sixth day of March in the year of our Lord one thousand nine hundred, the said Selby Smelting & Lead Company aforesaid had received from the United States of America the said sum of four hundred ninety-eight and thirty-seven ($498.37) one hundredth dollars in full and complete payment of said claim, and of the articles set out therein, and he then and there well knew that the said Selby Smelting & Lead Company had no other or further charge or claim against the United States or against the mint of the United States at San Francisco, state and Northern district aforesaid, on account of said claim or for the sale of the articles therein set out; and he, the said Walter N. Dimmick, intended then and there and thereby to defraud the United States of America.'

The fourth count is as follows:

'That Walter N. Dimmick, late of the Northern district of California, heretofore, to wit, on the seventh day of April, in the year of our Lord one thousand nine hundred, and at divers other times from and including the said seventh day of April, in the year of our Lord one thousand nine hundred, to and including the thirtieth day of April, in the year of our Lord one thousand nine hundred, at the city and county of San Francisco, state of California, in the district aforesaid, and was not an authorized depositary of public moneys. That the said Walter N. Dimmick, not being an authorized depositary of public moneys of the United States, then and there knowingly, unlawfully, willfully, and feloniously used a portion of the public moneys of the United States of America, to wit, the sum of four hundred ninety-eight and thirty-seven one hundredth ($498.37) dollars, lawful money of the United States of America, for a purpose not prescribed by law; that is to say, the said Walter N. Dimmick then and there used the said money for his own uses and purposes.'

The first count of the indictment is based on section 5438 of the Revised Statutes, which, so far as applicable, is as follows:

'Every person who makes or causes to be made, or presents or causes to be presented for payment or approval to or by any person or officer in the civil, military, or naval service of the United States, any claim upon or against the government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent, * * * shall be imprisoned at hard labor not less than one nor more than five years, or fined not less than one nor more than five thousand dollars.'

The fourth count was based upon section 5497 of the same Statutes, which reads as follows:

'Every banker, broker, or other person not an authorized depositary of public moneys, who knowingly receives from any disbursing officer or collector of internal revenue or other agent of the United States any public money on deposit or by way of loan or accommodation, with or without interest, or otherwise than in payment of a debt against the United States, or who uses, transfers, converts, appropriates, or applies any portion of the public money for any purpose not prescribed by law, and every president, cashier, teller, director, or other officer of any bank or banking association who violates any provision of this section, is guilty of an act of embezzlement of the public moneys so deposited, loaned, transferred, used, converted, appropriated, or applied, and shall be punished as prescribed in section five thousand four hundred and eighty-eight.' The objections urged on the part of the plaintiff in error to the first count of the indictment, and to such of the evidence and to such parts of the charge of the court below to the jury as related to that count, are chiefly based upon the proposition that in order to constitute the false, fictitious, or fraudulent claim referred to in section 5438 of the Revised Statutes it is essential that the bill, voucher, or other thing used as a basis of the claim should in and of itself contain some 'fraudulent or fictitious statement or entry. ' 'The test,' says the counsel for the plaintiff in error, 'of a 'false, fictitious, or fraudulent claim,' as suggested by the statute itself, is this: Is the bill, voucher, or claim used by the defendant to obtain the payment (in this case the document 'Exhibit A' attached to the indictment) a bill, voucher, or claim containing any 'fraudulent or fictitious statement or entry'? If not, then the claim is not within the terms of the statute, and the courts would be guilty of usurpation in placing it there by force of construction. In this case the prosecution concedes, and the indictment shows, that the claim, bill, and voucher, designated in the first count as 'Exhibit A,' does not, and never did, contain any 'fraudulent or fictitious statement or entry'; therefore we insist the case as presented by the first count is not within the statute.'

We think there is nothing in this position of counsel for the plaintiff in error. The character of the claim-- that is to say, whether true, genuine, and honest, or false, fictitious and fraudulent-- must be determined in view of all of the facts and circumstances attending it. If it be originally forged, or otherwise fraudulently concocted, its presentation for payment, with knowledge of the facts, must necessarily be fictitious and fraudulent. Every whit as much so is a similar demand based upon a claim originally valid, but which the party presenting the claim knows has theretofore been paid, and is no longer a subsisting, honest, and just demand, or which he knows he is wholly unauthorized to present and demand or receive any money on. The contention that in presenting the claim in question to the cashier of the mint, and receiving thereon $498.37 of the government's money, ...