Summers v. United States
| Decision Date | 27 February 1926 |
| Docket Number | No. 2422.,2422. |
| Citation | 11 F.2d 583 |
| Parties | SUMMERS v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fourth Circuit |
H. E. Widener, of Abingdon, Va., B. F. Buchanan, of Marion, Va., and F. B. Hutton, of Abingdon, Va. (Beverly A. Davis, of Rocky Mount, Va., J. H. Chitwood, of Roanoke, Va., Buchanan & Buchanan, of Marion, Va., and Hutton & Hutton, of Abingdon, Va., on the brief), for plaintiff in error.
Joseph C. Shaffer, U. S. Atty., of Wytheville, Va., and C. E. Gentry, Asst. U. S. Atty., of Charlottesville, Va.
Before ROSE and PARKER, Circuit Judges, and WATKINS, District Judge.
L. P. Summers, the plaintiff in error, was tried in the District Court of the United States for the Western district of Virginia, at Roanoke, upon an indictment containing six counts charging him with violation of section 35 of the Penal Code, as amended by Act of Congress approved October 23, 1918 (Comp. St. Ann. Supp. 1919, § 10199). The result was a conviction upon counts 5 and 6 and an acquittal upon the other four counts. He was sentenced to confinement in the federal penitentiary at Atlanta, Ga., for a period of 15 months, which was well within the limit for which he might have been sentenced upon either of the counts upon which the conviction was had. Summers had served as United States attorney for the Western district of Virginia from June 6, 1922, until August 1, 1924, and the counts on which he was convicted related to a claim for personal services alleged to have been rendered by one Hattie Perkins as clerk to the said United States attorney for the month of May, 1924. Twelve assignments of error, some of which embrace numerous particularizing subdivisions, are presented in the record. In order to avoid repetition and unnecessarily prolonging this opinion these assignments may be grouped under the following comprehensive divisions: (1) Sufficiency of the indictment. (2) Proof of venue. (3) Variance. (4) Setting aside the verdict and discharge of the jury.
Upon the call of the case, counsel for the accused seasonably interposed a demurrer to all the counts in the indictment. It is admitted that each count in the indictment was set out substantially in the language of the statute. It is claimed, however, that there was no inducement showing where Hattie Perkins was clerk to the United States attorney; no charge that she was not entitled to the claim she received; no averment as to why the defendant approved the vouchers or made the certificates; no averment showing wherein the claim presented or certification was false; no allegation that the United States marshal had any right to pay the claims presented or certified; no allegation that the plaintiff in error was an official of the United States government; no allegation as to whom the claim was payable; that the vouchers were not sufficiently described; nor was there anything to show whether the indictment was brought under section 35 of the Criminal Code, or under the section referring to similar offenses by United States officials; and that, when read together as a whole, the indictment fails to state any offense against the United States.
The general rule applicable to cases of this nature is thus stated in Potter v. U. S. 15 S. Ct. 144, 146, 155 U. S. 438, at page 444 (39 L. Ed. 214): "The offense charged is a statutory one, and, while it is doubtless true that it is not always sufficient to use simply the language of the statute in describing such an offense (United States v. Carll, 105 U. S. 611 26 L. Ed. 1135), yet if such language is, according to the natural import of the words, fully descriptive of the offense, then ordinarily it is sufficient."
Where, as in the instant case, in addition to the embodiment of the words of the statute, the identical transaction is further particularized by the date, amount, and nature of the transaction, together with the place and names of the parties concerned in its performance, it is evident that only the ingenuity of able counsel would be able to discover any difficulty in determining the precise nature of the charge to be met. Frohwerk v. U. S., 39 S. Ct. 249, 249 U. S. 204, 63 L. Ed. 561; 3 Foster, Federal Practice, § 497, pp. 2637-2639. The fifth count, in addition to formal allegations, charges that the plaintiff in error unlawfully made and caused to be made and presented for payment and approval to the United States marshal for the Western district of Virginia, an officer in the civil service of the United States, a claim for personal services rendered by one Hattie Perkins as clerk to the United States attorney for the Western district of Virginia for the month of May, 1924, in the sum of $166.25, erroneously stated as $165.25, and that this claim was made and presented by the plaintiff in error, knowing it to be false, fictitious, and fraudulent. While proper consideration of careful pleading might have suggested the propriety of setting out the particular ground upon which the claim was charged to be fraudulent, namely, because the services had not been rendered, it still appears that no bill of particulars was requested, and it would be straining technicalities to conclude that the plaintiff in error or his counsel had any lack of understanding of the precise charge to be met.
However, even if this count should be stricken, the verdict should not be disturbed, since the plaintiff in error was convicted also upon the sixth count, which was in all respects sufficient, and the sentence was entirely within the limit of punishment to which the plaintiff in error was subject under that count. There is no merit in the suggestion as to the absence of the allegation that the United States marshal was clothed with the right to pay the claim, since the court must take judicial cognizance of the statute which devolves that duty on him. This count is drawn under the second clause of the statute, which makes it an offense for any one, whether an official or private citizen, to make any certificate containing any fraudulent or fictitious statement for the purposes prohibited by the statute. It is the character of the certificate itself, and not the official or unofficial relation of the one who is responsible for its making and presentation, that forms the basis of guilt. This count is more explicit than the fifth count, in that it particularizes the fraudulent character of the claim as one for services which had not actually been rendered. The making and presentation of the false certificate and of the false claim, whether by one on his own behalf or for the benefit of another, are both within the inhibition of the statute. The demurrer was properly overruled.
A review of the record discloses abundant evidence to go to the jury upon the question of proof of venue. The United States marshal, to whom the claim was presented, in his testimony produced the voucher and envelope in which it reached him through the United States mails at his office in Roanoke, Va., in the district within which the offense was committed and in which the trial was had. The evidence further shows that the locus of the transaction upon which the false claim was based, as well as the place of the consummation of the crime, was in that district.
When the voucher in question was presented in evidence, it embraced the following items:
Dollars Cts
For services rendered as clerk to U
S. attorney from May 1, 1924, to
May 31, 1924, inclusive
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