United States v. Barnow

• Decision Date: 08 November 1915
• Docket Number: No. 454,454
• Citation: 60 L.Ed. 155,239 U.S. 74,36 S.Ct. 19
• Parties: UNITED STATES, Plff. in Err., v. M. J. BARNOW
• Court: U.S. Supreme Court

239 U.S. 74

36 S.Ct. 19

60 L.Ed. 155

UNITED STATES, Plff. in Err.,

v M. J. BARNOW.

No. 454

Argued October 18, 1915.

Decided November 8, 1915.

Solicitor General Davis and Mr. Robert Szold for plaintiff in error.

Messrs. Daniel Thew Wright, T. Morris Wampler, and Henry D. Green for defendant in error.

Mr. Justice Pitney delivered the opinion of the Court:

This case is brought here under the criminal appeals act (34 Stat. at L. 1246, chap. 2564, Comp. Stat. 1913, § 1704), to review a judgment of the district court (221 Fed. 140), sustaining a demurrer to an indictment founded upon § 32 of the Criminal Code of March 4, 1909 (35 Stat. at L. 1088, 1095, chap. 321, Comp. Stat. 1913, §§ 10,165, 10,196). By that section these offenses are prohibited:

(1) With intent to defraud either the United States or any person, the falsely assuming or pretending to be an officer or employee acting under the authority of the United States, or any department, or any officer of the government thereof, and taking upon oneself to act as such.

(2) With intent to defraud either the United States or any person, the falsely assuming or pretending to be an officer or employee, etc., and in such pretended character demanding or obtaining from any person or from the United States, or any department, or any officer of the government thereof, any money, paper, document, or other valuable thing.

The indictment contains six counts, of which the first, third, and fifth are based upon the former, and the second, fourth, and sixth upon the latter of these prohibitions. The first count charges that defendant, with intent to defraud a certain person named, did falsely pretend to be an employee of the United States acting under the authority of the United States, to wit, an agent employed by the government to sell a certain set of books entitled, 'Messages and Papers of Presidents,' and did then and there take upon himself to act as such agent, in that he visited the person named and falsely pretended to him that he was such an employee of the United States, employed as aforesaid for the purpose aforesaid. The third and fifth counts differ only as to the names of the persons mentioned and the dates of the alleged offenses.

The second count charges that defendant, with intent to defraud a certain person named, did falsely pretend to be an employee of the United States acting under the authority of the United States, to wit, an agent employed by the government to sell a certain set of books entitled, 'Messages and Papers of Presidents,' and in such pretended character did obtain from the person named the sum of $10, which he would not have given to defendant unless he had supposed him to be an employee of the government, and had supposed that the money was to be paid over to the government on account of the subscription price of the books, etc. The fourth and sixth counts are in like form.

It was and is admitted that there was not in existence such an employee or such an employment as it was alleged the defendant pretended.

The district court held that the gist of the offense is the false personation of an officer or employee of the United States, and in order to constitute such an offense there must be personation of some particular person or class of persons, since there cannot be a false personation of a supposititious individual who never existed or whose class never existed. Unon this construction of the statute, all of the counts fell.

We think this is to read the act in too narrow a sense. Not doubting that a false personation of a particular officer or employee of the government, or a false pretense of holding an office or employment that actually exists in the government of the United States, is within the denunciation of § 32, we think it has a broader reach. No convincing reason is suggested for construing it more narrowly than the plain import of its language. To 'falsely assume or pretend to be an officer or employee acting under the authority of the United States, or any department, or any officer of the government thereof,' is the thing prohibited. One who falsely assumes or pre- tends to hold an office that has a de jure existence is admittedly within its meaning. That is, where the assumption or pretense is false in part, but contains a modicum of truth, the statute is violated. Why should it be deemed less an offense where the assumption or pretense is entirely false, as where the very office or employment to which the accused pretends title has no legal or actual existence? It is insisted that the words next following 'shall take upon himself to act as such, or shall in such pretended character demand or obtain,' ect.—indicate an intent to punish only false personation of existing officers or employees, and not a false representation as to some supposititious employment by the government. But to 'take upon himself to act as such' means no more than to assume to act in the pretended character. It requires something beyond the false pretense with intent to defraud; there must be some act in keeping with the pretense (see People v. Cronin, 80 Mich. 646, 45 N. W. 479); but it would strain the meaning of the section to hold that the offender must act as a veritable officer of the government...