United States v. Miskell

• Decision Date: 01 March 1883
• Citation: 15 F. 369
• Parties: UNITED STATES v. MISKELL. [1]
• Court: United States Circuit Court, District of Kentucky

15 F. 369

UNITED STATES v. MISKELL. ^[1]

United States Circuit Court, D. Kentucky.

March, 1883

Geo. M Thomas, Dist. Atty., for the Government.

Samuel McKee, for defendant.

BAXTER J.

The act under which the indictment in this case was framed (section 5438, Rev. St.) provides that 'every person who makes or causes to be made, or presents or causes to be presented, for payment or approval, to or by any officer in the civil military, or naval service of the United States, any claim upon or against the government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent, or who, for the purpose of obtaining, or aiding to obtain, the payment or approval of such claim, makes, uses or causes to be made or used, any false affidavit, etc., knowing the same to contain any fraudulent or fictitious statement,' etc., shall be punished, etc.

The indictment follows the statute. It contains one count for making and presenting, or causing to be made and presented for payment a false, fictitious, and fraudulent claim, etc and another count for having made and used a false affidavit, etc., for the purpose of obtaining the payment of a false, fictitious, and fraudulent claim, etc. Upon a trial had, the defendant was acquitted of the first and convicted of the crime alleged in the second count; and thereupon moved for a new trial. No evidence was offered by the government upon the trial tending to show that the claim, in support of which the alleged false affidavit was used, was either false, fictitious, or fraudulent. Hence we are called on to determine whether a conviction obtained for the making and using of a false affidavit, etc., to obtain payment or allowance of a claim upon or against the United States, can be sustained, without proof showing that the claim, in support of which such affidavit was made or used, was itself false, fictitious, or fraudulent.

The crime created and defined by the statute and formulated in the second count of the indictment is not the making or using of a false affidavit to obtain payment of a claim upon or against the government, but it is the making or using a false affidavit, etc., for the purpose of obtaining the payment or approval of a false, fictitious, or fraudulent claim, etc. In other words, the crime charged in the second count of the indictment under consideration is composed of two elements-- First, a...