United States v. Smith

• Decision Date: 03 January 1920
• Docket Number: 1358.
• Citation: 262 F. 191
• Parties: UNITED STATES v. SMITH.
• Court: U.S. District Court — District of Indiana

262 F. 191

UNITED STATES v. SMITH.

No. 1358.

United States District Court, D. Indiana.

January 3, 1920

L. Ert Slack, U.S. Atty., of Indianapolis, Ind.

Ferdinand Winter and Miller, Dailey & Thompson, all of Indianapolis Ind., for defendant.

ANDERSON District Judge.

An act of Congress passed August 24, 1912 (37 Stat. 553, c. 389 (Comp. St. Sec. 7313)), provides:

'That it shall be the duty of the editor, publisher, business manager, or owner of every newspaper, magazine, periodical or other publication to file with the Postmaster General and the postmaster at the office at which said publication is entered, not later than the first day of April and the first day of October of each year, * * * a sworn statement setting forth the names and post office addresses of the editor and managing editor, publisher, business managers, and owners. * * * ' Section 2.

This statute further provides:

'Any such publication shall be denied the privileges of the mail if it shall fail to comply with the provisions of this paragraph within ten days after notice by registered letter of such failure.'

Section 28 of the Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1094 (Comp. St. Sec. 10192)) provides as follows:

'Whoever shall falsely make, alter, forge, or counterfeit, or cause or procure to be falsely made, altered, forged, or counterfeited, or willingly aid, or assist in the false making, altering, forging, or counterfeiting, any bond, bid, proposal, contract, guarantee, security, official bond, public record, affidavit, or other writing for the purpose of defrauding the United States; or shall utter or publish as true, or cause to be uttered or published as true, or have in his possession with the intent to utter or publish as true, any such false, forged, altered, or counterfeited bond, bid, proposal, contract, guarantee, security, official bond, public record, affidavit or other writing for the purpose of defrauding the United States, knowing the same to be false, forged, altered, or counterfeited; or shall transmit to, or present at, or cause or procure to be transmitted to, or presented at, the office of any officer of the United States, any such false, forged, altered, or counterfeited bond, bid, proposal, contract, guarantee, security, official bond, public record, affidavit, or other writing, knowing the same to be false, forged, altered, or counterfeited for the purpose of defrauding the United States, shall be fined not more than one thousand dollars, or imprisoned not more than ten years, or both.'

On October 21, 1919, the defendant was indicted by the grand jury for the violation of the various clauses of this section. The indictment is in 20 counts, and these various counts are based upon four affidavits, dated, respectively, October 1, 1912, April 1, 1918, September 30, 1918, and March 31, 1919.

These affidavits are not charged in any count of the indictment to be forged or counterfeited, in the technical sense of the term. They are charged to be genuine as to their execution, but false as respects one of the material statements in them; that is, as to the ownership of the newspaper. Each count is based upon one of these affidavits, and each of them is averred to have been sworn to before a notary public.

Two objections are made to the indictment and to each count of it. One of the objections made is that--

'A notary public is not an officer authorized by any statute of the United States to administer an oath in reference to the matters to which said affidavit relates.'

It is earnestly contended that, this being so, the affidavit is not an affidavit, as alleged in the indictment, and that this defect appears upon the face of the indictment. If the defendant, as alleged in the indictment, presented these affidavits to the postmaster in Indianapolis as affidavits, he cannot now be heard to say that they are not affidavits.

In Ingraham v. United States, 155 U.S. 434, 15 Sup.Ct. 148, 39 L.Ed. 213, the Supreme Court had before it this question. Ingraham was indicted for presenting to the Third Auditor of the Treasury an affidavit in support of a fraudulent scheme against the government, and upon his trial the objection was made that the affidavit, which had been sworn to before a justice of the peace, was not admissible in evidence without proof that the justice had been duly commissioned and qualified as a justice of the peace. The Supreme Court said, on page 437 of 155 U.S. (15 Sup.Ct. 149, 39 L.Ed. 213):

'Even if Remington (the justice of the peace) had not been properly commissioned, or had not qualified, so as to entitle him, in law, to discharge the functions of a justice of the peace, the paper presented by the defendant to the Third Auditor of the Treasury for the purpose of obtaining the payment or approval of his claim, being in the form of an affidavit, must, for all the purposes of this prosecution, be taken to be an affidavit. If he knew that the statement in that paper, described in the indictment, was fraudulent or fictitious, he was not the less guilty * * * because of the fact, if such was the fact, that Remington had not been duly commissioned as a justice of the peace, and was not, for that reason, entitled to administer the oath certified by him. * * * He is estopped to deny that the document or writing so used was not what it purports to be, namely, an affidavit.'

The several counts of the indictment are therefore not bad upon this ground.

It is however, insisted by the defendant that the different paragraphs or clauses of section 28...