Pooler v. United States

• Decision Date: 21 January 1904
• Docket Number: 471.
• Citation: 127 F. 509
• Parties: POOLER v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

127 F. 509

POOLER v. UNITED STATES.

No. 471.

United States Court of Appeals, First Circuit.

January 21, 1904

David D. Stewart, for plaintiff in error.

Isaac W. Dyer, U.S. Atty.

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

PUTNAM Circuit Judge.

Daniel H. Pooler was indicted, convicted, and sentenced in and by the District Court for the District of Maine, and thereupon took out this writ of error. The record contains a demurrer to the indictment, which is general; a motion in arrest of judgment, which is general, except that it specifies that the alleged pension certificate hereafter referred to was not set out in haec verba. There is also a bill of exceptions, which apparently raises three distinct propositions. The assignment of errors also objects that the court passed sentence on Pooler prior to the disposition of the proceedings against him by this court. Except in these particulars, the record is very general; and the brief for the plaintiff in error does not quite comply with our rule 24 (90 F. lxiii, 31 C.C.A. lxiii), which requires that it should open with a concise abstract of the case, 'presenting succinctly the questions involved in the matter in which they are raised,' with, next in order, 'a specification of the errors relied on,' setting out 'separately and particularly each error asserted. ' Notwithstanding this we think we have apprehended the precise points intended by the plaintiff in error.

We will first lay aside the proposition denying the duty of the District Court to pass sentence pending a writ of error, or an application therefor. While the necessity of doing this may well be considered as subject to the grave objections stated by the learned counsel for the plaintiff in error, yet the practice in the federal courts in this respect is that of the common law, and has been uniform since the first federal judiciary act was passed. It cannot now be questioned. Indeed, it may well be doubted whether, in view of article 7 of the amendments to the Constitution, prohibiting the re-examination of facts tried by a jury 'otherwise than according to the rules of the common law,' even Congress has power, in this respect, to make any radical change. It is settled, by so long a line of authorities that it would be superfluous to refer to them, that in this particular the federal courts proceed according to the common law, in the sense in which the expression is used in this amendment to the Constitution, and give no consideration to any local practice of the courts of the state of Maine or of any other state.

On searching through the record, including the demurrer, the motion in arrest of judgment, and the bill of exceptions, and also the briefs of counsel, the main propositions which we understand are in issue are as follows:

(1) That the records of the Pension Office, or a copy thereof were exhibited in evidence in lieu of the alleged pension certificate.

(2) That the conviction was under section 5438 of the Revised Statutes (U.S. Comp. St. 1901, p. 3674), which, so far as the offense alleged is concerned, is claimed to have been repealed by the act of July 7, 1898, c. 578, 30 Stat. 718 (U.S. Comp. St. 1901, p. 3279).

(3) That there is neither allegation nor proof that prior to the indictment there had been any proceedings in accordance with the requirements of the act of December 21, 1893, c. 3, 28 Stat. 18 (U.S. Comp. St. 1901, p. 3270), which we will refer to more particularly hereafter.

(4) That the alleged pension certificate referred to in the count which we will soon quote should have been set out by its tenor.

The indictment contains four counts. It is stated by counsel that counts 1 and 3 were abandoned, and that the United States proceeded only on counts 2 and 4. We find nothing in the record supporting these propositions, and, as the demurrer was to the entire indictment, and the sentence was a general one, not beyond what was permissible in case of a conviction on a single count, it will be sufficient if it is established that any count meets all the objections raised by the plaintiff in error. We are satisfied that the second count does, and therefore we herewith insert it at length:

'2. And the grand jurors aforesaid, upon their oath aforesaid, do further present that said Daniel H. Pooler, on the fourth day of December, in the year of our Lord nineteen hundred and one, at Augusta, in the said District of Maine, for the purpose then and there of obtaining and aiding to obtain the payment of a claim upon and against the government of the United States by an officer in the civil service of the said United States, to wit, by the then pension agent at Augusta, aforesaid, then and there authorized by law to receive and pay the same as by law directed, to wit, a claim for an invalid pension, and which pension he, the said Daniel H. Pooler, then and there claimed to be due him under pension certificate numbered eight hundred forty-three thousand six hundred and one (843,601) as the identical person named therein, to wit, as Daniel R. Hodsdon, who served in Company D Fifth Regiment, Maine Volunteers, in the War of the Rebellion, and which said Daniel H. Pooler, then and there well knew, in this, that in said claim the said Daniel H. Pooler averred that he was the identical person named in pension certificate numbered eight hundred forty-three thousand six hundred and one (843,601) dated the twenty-eighth day of January, in the year of our Lord eighteen hundred and ninety-three, who served in Company D, Fifth Regiment, Maine Volunteers, when in truth and in fact he was not the identical person named in the pension certificate as aforesaid, who served in Company D, as aforesaid, in his own name or in the name of Daniel R. Hodsdon, as he, the said Daniel H. Pooler, at the time of making said claim, then and there well knew-- did make and use and cause to be made and used a certain false voucher in the words and figures following, to wit: --

INVALID

Be it known, That I, Daniel R. Hodsdon, do solemnly swear that I am the identical person named in pension certificate No 843,601, dated 28 day of Jany, 1893, now in my possession; that I served in Company D, 5' Regiment, Me.

Volunteers; that my name is inscribed on the rolls of the Augusta Agency, at the rate of 12 dollars per month.

That I have not been employed or paid in the Army, Navy, or Marine Service of the United States from (1) 4 day of Sept., 1901, to the present time; that I am entitled to the pension described in this voucher; that I have not forfeited my right, title, or interest therein; and that my present post-office address is W. Palmyra, County of Somerset, State of Maine.

DANIEL R. HODSDON. (Pensioner's signature.) (Signature must be written letter for letter as it is written in the pension certificate.)

(If pensioner signs by mark, two witnesses who can write.)

FLORA E. FRENCH.

Officer must make the contents of the affidavit fully known to the pensioner before signing or swearing.

The pension certificate must be exhibited to the magistrate when this voucher is executed. STATE OF MAINE,

COUNTY OF SOMERSET, ss.

Subscribed and sworn to before me this 4th day of Dec. 1901, and I certify that the pensioner, above named, has this day exhibited to me his pension certificate, above described, and was fully identified as the pensioner named therein, and that he signed the following duplicate receipts in my presence.

(Magistrate's signature) T. F. FRENCH. (Official character) 4. C.P.M. (P.O. address) W. Palmyra, Maine.

(The magistrate must certify to any erasures or alterations.)

The pensioner will sign these receipts in the presence of the magistrate. $36 DEC. 4, 1901.

Received of SELDON CONNOR, U.S. Pension Agent at Augusta, Me., Thirty-six 00/100 dollars by check No. 461,613, dated Dec. 9, 1901, being for 3 months' and -- days' pension due me on pension certificate from the 4 day of sept., 1901, to the 4 day of Dec., 1901, for which I have signed duplicate receipts.

DANIEL R. HODSDON. (Sign name as above.)

(Witness who can write.) FLORA E. FRENCH.

In the left-hand margin is written the following: ASSISTANT TREASURER,

Boston, Mass.

cher is worthless if executed prior to the last date specified in the receipt.

Original.

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In the right-hand margin is written the following: This voucher is worthless if executed prior to the last date specified in the

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which then and there contained a fraudulent and fictitious statement, as he, the said Daniel H. Pooler, then and there well knew, in this, that in said voucher said Daniel H Pooler averred that he was the identical person named in pension certificate numbered eight hundred forty-three thousand six hundred and one (843,601), dated the twenty-eighth day of January, in the year of our Lord eighteen hundred and ninety-three, who served in Company D, Fifth Regiment, Maine Volunteers, when in truth and in fact, he was not the identical person named in the pension certificate as aforesaid, in his own name or in the name of Daniel R. Hodsdon, as he, the said Daniel H. Pooler, at the time of making said claim, then and there knew, against the peace and dignity of the said United States and contrary to the form of the statute of the said United States in such case made and provided.' The main contention seems to be the proposition we have numbered 2, to the effect that a conviction under section 5438 of the Revised Statutes (U.S. Comp. St. 1901, p. 3674) cannot be maintained. Various statements were made by the parties with reference to proceedings in the District Court, indicating that the court and the United States had in view only that section; but ordinarily this would not be of great consequence, if the...