United States v. Moore

• Decision Date: 02 April 1894
• Citation: 60 F. 738
• Parties: UNITED STATES v. MOORE et al.
• Court: U.S. District Court — Northern District of New York

60 F. 738

UNITED STATES v. MOORE et al.

United States District Court, N.D. New York.

April 2, 1894

William F. Mackey, Asst. U.S. Dist. Atty., for the United States.

John Laughlin, for Moore.

George W. Cothran, for Oishei.

COXE District Judge.

It is agreed by all that the indictment is founded upon the first paragraph of section 5421, of the Revised Statutes of the United States, which is as follows:

'Every person who falsely makes, alters, forges, or counterfeits or causes or procures to be falsely made, altered, forged or counterfeited; or willingly aids or assists in the false making, altering, forging, or counterfeiting, any deed power of attorney, order, certificate, receipt, or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States, or any of their officers or agents, any sum of money;' shall be imprisoned, etc.

The indictment alleges that on the 24th of October, 1892, at Buffalo, the defendants 'did then and there knowingly, wrongfully and unlawfully falsely make and willfully aid and assist in the false making of a certain affidavit and writing for the purpose of enabling another person, to wit, Christian Neusel, to obtain and receive from the United States of America a certain sum of money, to the jurors aforesaid unknown, then and there claimed to be due to the said Christian Neusel on account of his military services and disabilities incurred' during the war of the Rebellion. The indictment then sets out the affidavit in full. It contains the necessary facts to enable the applicant to obtain a pension. It is signed by him and by two identifying witnesses and states that all of the affiants appeared before the subscribing notary public. It also contains a jurat signed by 'A. J. Oishei, Notary Public,' in which he certifies that the affidavit was subscribed and sworn to before him, and that its contents were fully made known and explained to the applicant and witnesses before they swore to it. The indictment then proceeds to point out that the affidavit was falsely made for the reason that the claimant and the identifying witnesses did not appear and were not sworn before the defendant Oishei. The defendants demur on the ground that the indictment does not state an offense of which the court has jurisdiction

The authorities are unanimous in holding that the first paragraph of section 5421 is a forgery and not a perjury statute. It punishes one who falsely makes an affidavit and not one who makes a false affidavit. The words of the statute are ejusdem generis and are the words usually adopted to describe are crime of forgery. 'False making' may almost be said to be synonymous with 'forging.' U.S. v. Staats 8 How. 41; U.S. v. Barney, 5 Blatchf. 294, Fed. Cas. No. 14,524; U.S. v. Wentworth, 11 F. 52; U.S. v. Reese, 4 Sawy. 629, Fed. Cas. No. 16,138; U.S. v. Cameron, 3 Dak, 141, 13 N.W. 561; State v. Willson, 28 Minn. 52, 9 N.W. 28; Mann v. People, 15 Hun, 155; State v. Young, 46 N.H. 266; Com. v. Baldwin, 11 Gray, 197; Barb. Cr. Law, 97; Whart. Cr. Law, § 653; Pen. Code N. Y. § 520. It is clear then, if the indictment merely charges the defendants with making an affidavit which contains a false statement of fact, that the offense cannot be punished under the paragraph quoted. For reasons stated hereafter it is thought that the indictment is defective under any construction of the statute, but assuming now that it contains a full and clear statement of all the acts of omission and commission attending the fabrication of the affidavit and jurat, it amounts only to an averment that the notarial certificate is...