Lewis v. United States

• Decision Date: 04 November 1925
• Docket Number: No. 6830.,6830.
• Parties: LEWIS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

8 F.2d 849 (1925)

LEWIS v. UNITED STATES.

No. 6830.

Circuit Court of Appeals, Eighth Circuit.

November 4, 1925.

T. H. Davidson, of Muskogee, Okl., for plaintiff in error.

O. H. Graves, Asst. U. S. Atty., of Muskogee, Okl. (Frank Lee, U. S. Atty., of Muskogee, Okl., on the brief), for the United States.

Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.

VAN VALKENBURGH, Circuit Judge.

The grand jury for the Eastern district of Oklahoma returned against plaintiff in error and another an indictment consisting of two counts. The first charged the defendants therein with having in their possession a certain government obligation, to wit, a certain check, No. 465156, drawn upon the Treasurer of the United States at Muskogee, Okl., by one D. Buddrus, cashier and special disbursing agent for the Five Civilized Tribes, which said check was for the sum of $320, payable to the order of one Billy Davis; that, so having the same in their possession, they did willfully, wrongfully, fraudulently, and feloniously, with intent to defraud the said Billy Davis, payee as aforesaid, forge upon the back thereof a material indorsement and signature, to wit, that of said payee. The second count deals with the same check, and charges the uttering of the same, with intent to defraud Billy Davis, payee as aforesaid. In this count the check, with the forged indorsement, is described as a forged obligation of the government.

The defendant Lewis seasonably attacked both counts of this indictment by demurrer, which was overruled, and exceptions were duly preserved. At the trial which ensued a verdict of guilty upon both counts was returned. The main points raised by the assignments is that the indictment in each count failed to state an offense against the United States, and that the demurrer accordingly should have been sustained. It is conceded that the prosecution in this case must be founded upon one or more of three sections of the Criminal Code: Section 148, formerly section 5414 of the Revised Statutes, and section 151, formerly section 5431, or section 29, formerly section 5421 (Comp. St. §§ 10318, 10321, 10193).

Section 148, which deals with forgery, is as follows:

"Whoever, with intent to defraud, shall falsely make, forge, counterfeit, or alter any obligation or other security of the United States shall be fined not more than five thousand dollars and imprisoned not more than 15 years.

Section 151, which deals with the uttering of such forged instruments is in the following language:

"Whoever, with intent to defraud, shall pass, utter, publish, or sell, or attempt to pass, utter, publish, or sell, or shall bring into the United States or any place subject to the jurisdiction thereof, with intent to pass, publish, utter, or sell, or shall keep in possession or conceal with like intent, any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined not more than five thousand dollars and imprisoned not more than fifteen years."

The obligations or other securities of the United States contemplated by these two sections are thus defined by section 147 (Comp. St. § 10317):

"The words `obligation or other security of the United States' shall be held to mean all bonds, certificates of indebtedness, national bank currency, coupons, United States notes, Treasury notes, gold certificates, silver certificates, fractional notes, certificates of deposit, bills, checks, or drafts for money, drawn by or upon authorized officers of the United States, stamps and other representatives of value, of whatever denomination, which have been or may be issued under any act of Congress."

The check from Buddrus to Davis falls admittedly within this definition. The forgery charged consisted, not in counterfeiting or altering the body of that instrument, but in forging the signature of the payee in the indorsement on the back thereof. The second count charges the uttering of the instrument with such forged indorsement. It was evidently the purpose of the pleader to charge the offenses under sections 148 and 151 aforesaid.

But this court, in Gesell v. United States, 1 F.(2d) 283, has held that the forgery of an indorsement or assignment of a genuine obligation of the United States, as defined in section 147, cannot be prosecuted under sections 148 and 151, supra. Consequently, unless the indictment in its allegations satisfies the requirements of some other provision of the Criminal Code, it must be held insufficient. We are remitted to section 29 of the Code, which is held to apply to a transaction of this nature. That section reads:

"Whoever shall falsely make, alter, forge, or counterfeit, or cause or procure to be falsely made, altered, forged, or counterfeited, or willingly aid, or assist in the false making, altering, forging, or counterfeiting, any deed, power of attorney, order, certificate, receipt, contract, or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States, or any of their officers or agents, any sum of money; or whoever shall utter or publish as true, or cause to be uttered or published as true, any such false, forged, altered, or counterfeited deed, power of attorney, order, certificate, receipt, contract, or other...