United States v. Medina.

• Decision Date: 31 August 1909
• Citation: 103 P. 976,15 N.M. 204
• Parties: UNITED STATESv.MEDINA.
• Court: New Mexico Supreme Court

15 N.M. 204

103 P. 976

UNITED STATES

v.MEDINA.

Supreme Court of the Territory of New Mexico.

Aug. 31, 1909.

Syllabus by the Court.

An indictment framed in the terms of the statute is sufficient only where by the statutory language the defendant is put upon fair notice of the charge against him.

Under Rev. St. U. S. § 4746, as amended by Act July 7, 1898, c. 578, 30 Stat. 718 (U. S. Comp. St. 1901, p. 3279), which penalizes the making of a false or fraudulent affidavit, it is not sufficient simply to allege that the affidavit was false. There must be a clear averment of the respects in which it is false equivalent to the assignment in perjury case.

A name pleaded as “Munnison” and proved as “Munnicon” is idem sonans, and there is no variance.

Under Rev. St. U. S. § 4746, as amended by Act July 7, 1898, c. 578, 30 Stat. 718 (U. S. Comp. St. 1901, p. 3279), which subjects to punishment one who knowingly certifies, when not true, that a witness has been sworn to an affidavit to be used in a pension case, administering the oath immediately before the taking down of the statement thereunder, equally with administering it after taking down such statement, is swearing the witness to such affidavit within the statute.

It was error, therefore, for the trial court to reject testimony for the defendant tending to show that he administered the oath to the witness, and the latter thereupon, having taken such oath, immediately dictated his statement to defendant, such testimony being material as showing a compliance with the law, and this even though the signing by the witness may have been postponed by illness to the next day.

Appeal from First Judicial District Court; before Justice John R. McFie.

Jesus M. Medina was convicted of violating the pension law, and he appeals. Reversed, with directions.

It was error, therefore, for the trail court to reject testimony for the defendant tending to show that he administered the oath to the witness and the latter thereupon having taken such oath immediately dictated his statement to defendant, such testimony being material as showing a compliance with the law and this even though the signing by the witness may have been postponed by illness to the next day.

A. B. Renehan and T. B. Catron, for appellant. D. J. Leahy, U. S. Atty., and S. B. Davis, Jr., Asst. U. S. Atty.

POPE, J.

Jesus M. Medina, the appellant, was indicted upon three counts for a violation of Rev. St. U. S. § 4746, as amended by Act July 7, 1898, c. 578, 30 Stat. 718 (U. S. Comp. St. 1901, p. 3279). All three counts were demurred to, the demurrer being sustained to the first count and overruled as to the remaining counts. A trial was had resulting in a verdict of guilty upon the second and third counts. After adverse ruling upon motion for a new trial the Court imposed a sentence of eighteen months upon each of these counts, the terms to run successively. The case thereupon came into this court by appeal.

The controlling statute is as follows: “That every person who knowingly or wilfully makes or aids, or assists in the making, or in any wise procures the making or presentation of any false or fraudulent affidavit, declaration, certificate, voucher, or paper or writing purporting to be such, concerning any claim for pension or payment thereof, or pertaining to any other matter within the jurisdiction of the Commissioner of Pensions or of the Secretary of the Interior, *** and every person, before whom any declaration, affidavit, voucher, or other paper or writing to be used in aid of the prosecution of any claim for pension or bounty land or payment thereof purports to have been executed who shall knowingly certify that the declarant, affiant, or witness named in such declaration, affidavit, voucher, or other paper or writing, personally appeared before him and was sworn thereto, or acknowledged the execution thereof, when, in fact, such declarant, affiant, or witness did not personally appear before him or was not sworn thereto, or did not acknowledge the execution thereof, shall be punished by a fine not exceeding five hundred dollars, or by imprisonment for a term of not more than five years.” The second count charges the defendant with a violation of the last clause of the statute, in that in a certain affidavit purporting to have been executed before him on August 5, 1904, and being for use in aid of a certain pension claim, the defendant “unlawfully and knowingly did certify that the affiant named in said affidavit, to wit, Rev. Ramon Medina, personally appeared before him the said Jesus M. Medina and was sworn thereto, whereas in truth and in effect the said Rev. Ramon Medina did not so personally appear before him, the said Jesus M. Medina, and was not so sworn to the said affidavit as he the said Jesus M. Medina, at the time of so certifying to said affidavit and writing then and there well knew.” The third count charges a violation of the first clause of the statute, in that the defendant “did unlawfully, knowingly, and willfully make and aid and assist in the making of a certain false and fraudulent affidavit, the tenor of which is as follows: [Then following in full the same affidavit involved in the second count]. The said affidavit being then and there an affidavit concerning a claim for pension in the said affidavit mentioned and the said Jesus M. Medina at the time of making and aiding and assisting in the making of the said affidavit then and there well knowing the same to be false and fraudulent.”

In dealing with the assignments of error we shall consider those urged against the third count first. It is urged as against the conviction under the third count that the indictment fails to charge an offense, in that it does not set forth the respect in which the affidavit was false. We are of opinion that this point is well taken. While the indictment follows the statute, it is, of course, well settled that this is sufficient only where the terms of the statute as pleaded put the defendant upon fair notice of the charge against him. As was said in Evans v. United States, 153 U. S. 584, 14 Sup. Ct. 934, 38 L. Ed. 830: “The rule that an indictment is sufficient if the offense be charged in the words of the statute is limited to cases where the words of the statute themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.” To the same effect is Miller v. U. S., 136 Fed. 581, 69 C. C. A. 355, a prosecution under the statute here involved. We cannot believe that an indictment charging the defendant simply with making a false affidavit is any more notice to him of what he is required to meet than an indictment charging him with having on the trial of a named cause simply sworn falsely. In the former case, no less than in the latter, he is entitled to know what is the particular matter to which it is alleged he has sworn falsely. Lines of proof available to sustain one feature of his affidavit might be totally irrelevant to uphold others. He is entitled to know definitely and specifically wherein his statement has been false. We find no authorities under the statute here involved directly ruling this point, but in all the indictments under the statute, and appearing in the reports, there seem without exception to be allegations specifying the particular false matter. Examples of these are found in United States v. Adler (D. C.) 49 Fed. 733; United States v. Wood (C. C.) 127 Fed. 172; Pooler v. United States, 127 Fed. 512, 62 C. C. A. 307. The third count of the indictment thus being in our judgment insufficient, we find it unnecessary to consider the remaining assignments of error so far as they affect only that count.

Coming now to the remaining assignments which affect both the second and third counts, it is alleged, first, that there was a variance between the affidavit...