Gregorat v. United States

• Decision Date: 07 March 1918
• Docket Number: 3060.
• Citation: 249 F. 470
• Parties: GREGORAT v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

249 F. 470

GREGORAT v. UNITED STATES.

No. 3060.

United States Court of Appeals, Fifth Circuit.

March 7, 1918

Louis H. Burns, of New Orleans, La., for plaintiff in error. Joseph W. Montgomery, U.S. Atty., of New Orleans, La.

Before WALKER and BATTS, Circuit Judges, and NEWMAN, District Judge.

BATTS Circuit Judge.

Plaintiff in error was indicted for violation of section 23 of the act of June 29, 1906, in that he 'knowingly did give, in a naturalization proceeding, false testimony as to a material fact. ' The indictment alleges that in a naturalization proceeding Gregorat testified that he had never operated a saloon, nor been arrested, nor charged with the commission of crime, nor found guilty of violating any state law. The indictment is attacked upon the ground that it does not affirmatively state that the defendant had operated a saloon and that he had been arrested and charged with the commission of a crime, and that he had been found guilty of violating a state law; the allegation of the indictment being:

'Whereas in fact, it was not and is not true, and at the time of so swearing and deposing the said Josef Domenick Gregorat did not believe it to be true, that he had not operated a saloon, or that he had never been arrested or charged with the commission of a crime of any kind, or that he had never been found guilty of violating any state law,' etc.

Under the formerly well-recognized rules with reference to indictments in cases of perjury and false swearing, the indictment would doubtless have been insufficient. In any writing, other than an indictment, a statement that 'it is not true that he did not operate a saloon' would be accepted as equivalent to a statement that 'he did operate a saloon.' There is no reason why a different rule should apply to indictments. Instead of being insufficient for lack of words, the indictment under consideration demonstrates that there is much still to be accomplished in the matter of simplification of indictments. The objection to the indictment is not sustained.

The indictment is objected to upon the ground that it does not charge that the defendant gave false testimony as to a material fact 'required to be proved in such proceeding ' The quoted clause of the section is applicable alone to affidavits.

The transcript of part of the notes taken by the stenographer at the trial of the naturalization proceeding was introduced in evidence upon what the...