Neall v. United States

• Decision Date: 27 October 1902
• Docket Number: 773.
• Citation: 118 F. 699
• Parties: NEALL v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

118 F. 699

NEALL v. UNITED STATES.

No. 773.

United States Court of Appeals, Ninth Circuit.

October 27, 1902

In Error to the District Court of the United States for the Northern District of California.

The plaintiff in error was convicted of forgery upon an indictment under section 5414 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 3662). The indictment charged as follows:

'That J. M. Neall, late of the Northern district of California heretofore to wit, on the 10th day of June, in the year of our Lord one thousand eight hundred and ninety-eight, at the city and county of San Francisco, in the state and Northern district of California, then and there being, then and there had in his possession a certain obligation of the United States, to wit, a certain certificate of deposit dated, Presidio of S.F., Cal., June 10th, 1898, for the sum of four hundred and sixty dollars, in favor of John Cranson, who was then and there a private in Company B, 4th regiment, United States Army, duly enlisted as such, the tenor of which said certificate of deposit is as follows to wit:

"Presidio S.F. Cal., June 10th, 1898.

"$460.00/100. Received this day of Private John Cranson, Co. 'B,' 4 Reg't U.S. Army, for deposit under secs. 1305 and 1306, R.S., four hundred and sixty dollars.

. . ., "Lt. Col. and Deputy Paymaster Genl. U.S.A.

''Attest: J. M. Neall, 1st Lieut. 4 Cavy. Commanding Company.'

'And that the said J. M. Neall, so having the said obligation of the United States in his possession as aforesaid, on the said tenth day of June, in the year one thousand eight hundred and ninety-eight, at the city and county of San Francisco, and within the jurisdiction of this honorable court then and there being, with intent to defraud the United States and the said John Cranson in the said obligation mentioned, did then and there unlawfully, knowingly, and feloniously falsely forge upon the face of the said certificate of deposit and obligation of the United States, in the place indicated for the signature of the Lt. Col. and Deputy. Paymaster Genl. U.S.A., a certain material indorsement and signature, of the tenor following, to wit, 'F. M. Coxe,' whereby the said J. M. Neall, in manner and form aforesaid, with intent to defraud, feloniously did falsely forge an obligation of the said United States, against the peace and dignity of the United States of America, and contrary to the form of the statute of the said United States of America in such case made and provided.'

To this indictment the plaintiff in error demurred. The demurrer was overruled, and the plaintiff in error thereupon pleaded not guilty, upon which plea he was tried before a jury, and was convicted and sentenced to two years' imprisonment in the penitentiary.

Crittenden Thornton, for plaintiff in error.

Marshall B. Woodworth, U.S. Atty., and Edward J. Banning, Asst. U.S. Atty., for defendant in error.

E. H. Crowder, Judge Advocate U.S. Army, amicus curiae.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge, after stating the case as above, .

The plaintiff in error assigns as error the ruling of the district court upon the objections to the indictment which were the grounds of his demurrer, and earnestly contends that the court had no jurisdiction of the offense charged in the indictment, for the reason that it appears on the face thereof that the plaintiff in error was, at the time when he was alleged to have committed the offense, an officer of the United States army, at a military post of the, united States, and is charged with having committed an offense against an enlisted soldier of the army, and that, therefore, he was amenable only to a court-martial under the provisions of the articles of war, section 1342 of the Revised Statutes (U.S. Comp. St. 1901, p. 944). We have given this contention the careful consideration to which its importance entitles it. The section of the Revised Statutes, 5414 (U.S. Comp. St. 1901, p. 3662), under which the indictment is found, refers in terms to 'every person who with intent to defraud falsely makes, forges, counterfeits, or alters an obligation or security of the United States. ' The provision is comprehensive in its scope, and it includes as well an officer of the army of the United States as all other persons within the jurisdiction of the United States, unless he is exempted from its operation by some provision of the constitution or some other statute. It is not contended that any statute in express terms gives exclusive jurisdiction to a court-martial of the offense which is charged against the plaintiff in error, but it is urged that such is the meaning and purport of the constitution and the articles of war. Reference is made to the fifth amendment, which declares the general rule that no person shall be held to answer for a capital or otherwise infamous crime unless on the presentment of a grand jury shall not apply 'in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger'; and to article 1, Sec. 8, of the constitution, which confers upon congress power to declare war, to raise and support armies, and to make rules for the government and regulation of the land and naval forces; and to the sixtieth article of war (section 1342, Rev. St. (U.S. Comp. St. 1901, p. 944)), which enacts that forgery committed by any person in the military service of the United States is an offense triable and punishable by court-martial with fine and imprisonment, and further provides that any one guilty of any of the offenses enumerated in the articles of war while in the military service of the United States, and subsequently dismissed, shall continue to be liable to be arrested and held for trial and sentence in the same manner and to the same extent as if he had not received such discharge. The plaintiff in error cites and relies upon, also, U.S. v. Bevans, 3 Wheat. 336, 4 L.Ed. 404, U.S. v. Mackenzie, 26 Fed.Cas. 1118 (No. 15,690), and U.S. v. Mackenzie, 30 Fed.Cas. 1160 (No. 18,313), as sustaining the view that it is the purpose of the constitution and the statutes to confer upon courts-martial the exclusive jurisdiction of such a case as this.

In the case first cited Marshall, chief justice, discussed the question whether a crime committed by a marine in the service of the United States on board a ship of war belonging to the United States lying at anchor in Boston Harbor could be tried for that offense in the circuit court of the United States for the district of Massachusetts. The conclusion which was reached was that under the eighth section of the act of April 30, 1790, providing for the punishment of certain crimes against the United States, no jurisdiction was given to the federal court of the offense charged, for the reason that the act gives such courts cognizance only of certain offenses on the high seas, or in any river, haven, basin, or bay 'out of the jurisdiction of any particular state,' and that the offense, having been committed in the Boston Harbor, was not out of the jurisdiction of Massachusetts, and therefore not within the jurisdiction of the federal court. It was held in that case, moreover, that the provision of the constitution extending the judicial power of the United States 'to all cases of admiralty and maritime jurisdiction' did not, of itself, confer jurisdiction of the offense, as it gave to congress only the power to legislate,-- a power which had not been exercised. The learned chief justice then proceeded to inquire whether section 3 of the act of 1790, which enacts 'that if any person or persons shall within any fort, arsenal, dockyard, magazine, or in any other place or district of country under the sole and exclusive jurisdiction of the United States, commit the crime of murder,' etc., brought the offense within the cognizance of the United States court, and concluded that the deck of a man-of-war is not a 'place,' within the purport of that section. He then proceeded to remark, in the language which is relied upon by the plaintiff in error:

'This construction is strengthened by the fact that at the time of passing this law the United States did not possess a single ship of war. It may therefore be reasonably supposed that a provision for the punishment of crimes in the navy might be postponed until some provision for a navy should be made. While taking this view of the subject, it is not entirely unworthy of remark that afterwards, when a navy was created, and congress did proceed to make rules for its regulation and government, no jurisdiction is given to the courts of the United States of any crime committed on a ship of war, wherever it may be stationed.'

We think this utterance of the court was intended only to direct attention to the fact that, when in the course of congressional legislation a navy was created, there was in the act creating it no express provision making crime committed on a ship of war, wherever it may be stationed, triable in the courts of the United States. The chief justice meant to say, in other words, that, when congress did create a navy, vessels of war were not be express legislation placed in the category of 'forts,' 'arsenals,' 'dockyards,' etc., as those terms are used in the crimes act of 1790, above referred to. The context of the opinion shows that the sentence so quoted was intended only to fortify the view of the court already expressed, that a ship of war was not a 'place,' within the purport of that act. We find in it nothing to sustain the contention of the plaintiff in error in the case at bar.

In the second case (U.S. v. Mackenzie) application was made to Betts, district Judge, under the crimes act of 1790 (section 8), to issue a...