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United States vs. Goggin.

petrated, nor wherein the claim was false, except that the defendant presented a claim which he represented to be due to him, by virtue of a pension certificate, which had been theretofore procured upon false and fraudulent proofs, and by unlawful and fraudulent devices, and without authority of law. What the false and fraudulent proofs and unlawful and fraudulent devices were, is not stated. The question is, are these allegations sufficiently certain, and do they contain statements of fact which will support a conviction? My impression upon the argument was, that the objection urged by counsel for defendant, was not one which reached the substance of the indictment, and that as he had not moved to quash, his objection was not good in arrest of judgment; but the rule is, that any objection to an indictment which would be good upon demurrer is fatal on motion in arrest, and this being so, the objection to the indictment, if well grounded in law, may be as well taken at the present stage of the proceedings as by motion to quash. In the case of The United States vs. Watkins, 3 Cranch Circuit Court Reports, 441, the court had occasion to state the rule with reference to certainty in alleging fraud in a case of false pretenses; and it was there held, that an indictment charging fraud should aver the means by which the fraud was effected; that fraud is an inference of law from certain facts, and the indictment must aver all the facts which constituted the fraud; that whether an act has been fraudulently done is a question of law, so far as the moral character of the act is involved; to aver that an act was fraudulently done, is therefore to aver a matter of law and not a matter of fact.

It is true, that this was a case of false pretenses, and there may be a well grounded distinction, as urged by the learned. counsel for the United States, between such a case and the case in hand; because, in a case of false pretenses it is, undoubtedly, essential, that the facts and circumstances should

United States vs. Goggin.

be alleged with such certainty that the court may see upon the face of the pleading that the pretenses were false, and that they were of such character and were made under such circumstances as constituted false pretenses, within the meaning of the criminal law; that they were relied upon—acted upon, and that the party defrauded had a right to rely upon them, and herein, and perhaps in some other respects, such a case is distinguishable from the case at bar. But it is, undoubtedly, a sound principle that an indictment charging fraud of any sort, ought to aver with requisite particularity wherein the fraud consisted, and the means by which it was effected, and I have been unable to find any cases which dispense with the application of this rule. It is true that many of the niceties and technicalities with reference to form in criminal pleadings which once existed are not allowed now to prevail, but I do not understand that there has been any relaxation of the rule with reference to certainty and clearness as to the matter charged. It is also a general rule that in an indictment for an offense created by statute, it is sufficient to describe the offense in the words of the statute. In the case of the United States vs. Simmons, 96 United States, 360, the Supreme Court had occasion to point out the precise scope and limitation of this rule, and after stating the rule, Mr. Justice HARLAN says in the opinion: "But to this general rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense;" and here, I think, we strike the fatal point in this indictment. For, after consideration I am unable to see how the defendant could plead his present conviction under this indictment and a judgment thereon, in bar of a second

United States vs. Goggin.

prosecution for the same offense. It is alleged only that he presented to the pension agent a claim for pension moncys under a pension certificate, which was procured by false and fraudulent proofs, and unlawful and fraudulent devices. The fraud should have been, by apt allegation, more particularly identified; it should have been alleged what the proofs and devices were, and wherein they were fraudulent; and it is in my judgment, immaterial when the proofs were made or devices resorted to, whether at the time of presenting the claim, or at a time anterior, if they were made as the basis for obtaining the pension certificate. If the fraudulent devices had consisted of an act done when payment was demanded, it would, I think, be clear that the nature of the devices or particular fraud practiced at the time should be alleged, and if this is so, it seems also essential that they should be alleged, though they were, in fact, practiced at and before the time of obtaining the pension certificate. The offense, it is true, was one committed, not in 1867, when the pension certificate was obtained, but in 1877 and in 1878, when payment of an installment was demanded; that is, a claim was presented for payment at those times; but, going back to the origin of the alleged fraud, I do not understand why it is not as necessary to allege wherein the fraud consisted at its inception and when made the basis for obtaining the pension certificate, as it would be if it consisted of some device practiced at the very time the claim was presented for payment. It was necessary to show the alleged fraud and the acts which constituted it, on the trial, and it was therefore necessary that the same facts should be alleged, at least with sufficient particularity to enable the defendant to plead any judgment which might follow, as a bar to a subsequent prosecution for the same offense. The allegation is, that a claim was presented by the defendant, as a pensioner, under and by virtue of a certain instrument known as a pen

United States. vs. Goggin.

sion certificate; but this certificate is not described so that it can be identified, as I think it should have been, as, by date, the names of the persons who purported to sign it, and the like, so as to satisfy the requirements of the rule as laid down by the Supreme Court in United States vs. Simmons, supra. If we adopt as authoritative upon the question under consideration the case of the United States vs Bettilini, 15 Internal Revenue Record, 32, which is a case somewhat in opposition to United States vs. Ballard, 13 Internal Revenue Record, 195, it is very clear that we should have to hold this indictment insufficient; and I incline to the opinion that the correct rule is stated in the former case.

It was urged upon the argument that what is alleged in the indictment in regard to fraud in obtaining the pension certificate, relates to the evidence of the offense, and not the offense itself, but it is not the presentation of the claim for payment which makes the offense, it is the presentation for payment of a false or fraudulent claim, and as no fraud can be committed but by deceitful practices, the particular practices by which the fraud was here committed, or which made the claim fraudulent, should have been so set forth as to make the fraud appear upon the face of the indictment. This may be in a certain sense, alleging the evidence of the offense, but it is rather the statement of essential facts which constitute the fraud, and therefore make the presentation for payment of the claim a criminal offense. The point is one that cannot be made clearer by elaboration. I rest my judgment upon the fact that the allegations of the pleading are not sufficient within the rule stated by the Supreme Court, to apprise the defendant with that certainty which the law requires of the nature of the accusation against him, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution.

for the same offense.

Judgment must be arrested.

The Davidson.

A presentment in the words of the statute is not always sufficient. It should apprise the defendant of what is intended to be proved against him with such certainty as to bar a second prosecution for the same offense: Commonwealth vs. Cook, 13 B. Monroe, (Ky.) 149. And the indictment should specify the nature and degree of the offense and also the particular facts and circumstances which render the defendant guilty of the offense. State vs. Raines, 3 McCord, 533; United States vs. Jackson, 3 Sawyer, 59; Quinn vs. State, 35 Indiana, 485; State vs. Barns, 25 Texas, 654; Millican vs. State, Id. 664; State vs. Pugh, 15 Missouri, 509. [Reporter.

THE SCHOONER DAVIDSON.

DISTRICT COURT-EASTERN DISTRICT OF WISCONSIN—
JANUARY, 1880.

IN ADMIRALTY.

LIEN OF SEAMEN REMAINING WITH WRECK IS PRIOR TO THAT OF SALVORS.-It is the duty of seamen to remain by the wreck of a vessel so long as their personal safety will permit, and save as much as possible from the vessel, and when they have done so, the fragments of the vessel and the outfit saved, constitute a fund pledged for payment of their wages, superior to the claim of the salvors. It would be otherwise if they had abandoned the wreck before the salvage service was begun.

The facts of this case as shown by the pleadings were these: On the 15th day of October, 1879, the schooner Davidson left Chicago on a voyage to northern ports on Lake Michigan. Libellants shipped on board as seamen. On the next day the vessel was stranded on Pilot Island Reef. On request for assistance from the master, Wolf & Davidson, of Mil

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