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UNITED STATES CIRCUIT COURT, MIDDLE DISTRICT OF ALABAMA.

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Before Woods, circuit justice, and Bruce, district judge.

Heard upon demurrer to the indictment.

WOODS, circuit justice:

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The defendant is indicted under Section 5438 of the Revised Statutes. So much of the section as refers to the charges against him is as follows: Every person who makes, or causes to be made, or presents, or causes to be presented for payment, or approval to or by any person or 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 canses to be made or used, any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, any person, so offending in any of the matters set forth in this section, shall be punished, &c. The defendant is charged in an indictment, containing four counts. The first count alleges that the defendant, claiming to be a deputy marshal of the United States, did present for approval, on a day mentioned, to George Turner, then late marshal of the United States, he being then and there an officer in the civil service of the United States, a false, fictitious, and fraudulent claim against the Government of the United States, with intent to defraud the United States, which claim was an account purporting to have been for services rendered and payments made by said deputy marshal in the case of the United States vs. Isaac Hart, in a criminal proceeding before W. H. Hunter, commissioner of the circuit court of the United States, dating from January 19, to January 25, 1880, inclusive, and in favor of the said George Turner, the then late marshal, as aforesaid, which claim was false, fictitious, and fraudulent in the following statements and entries therein contained. (Here follows a recitation of the alleged false, fictitious, and fraudulent entries.)

The count then proceeds: "The defendant, well knowing the same to contain the said false, fraudulent, and fictitious entries."

The second count charges that the defendant did "use a false affidavit of the correctness of the claim mentioned in the first count, for the purpose of aiding to obtain the payment of said claim, knowing the same to contain false, fraudulent, and fictitious statements and entries," as follows, to wit: (Here follows a copy of said entries, identical with those contained in the first count.)

The count then proceeds as follows:

He, the said Paul Strobach, deputy marshal as aforesaid, well knowing the same to contain each and every false, fraudulent, and fictitious statement and entry aforesaid.

The third count charges that the defendant, claiming to have been a deputy marshal of the United States, did cause said George Turner, then late marshal of the United States, to present to and for approvaĺ by the district court of the United States for the middle district of Alabama, in open court, at the May term, 1880, the Hon. John Bruce, judge of the United States district court for the middle district of Ala

bama, then and there presiding, as well as to and for the approval of said Hon. John Bruce, district judge, presiding as aforesaid, he being then and there an officer in the civil service of the United States, a false, fictitious, and fraudulent claim upon and against the Government of the United States.

The count proceeds to describe the claim in the same terms as those used in the first count, and concludes with the averment that the defendant well knew said claim to be false, fictitious, and fraudulent in each of the statements and entries aforesaid.

The fourth count is, in all respects, similar to the second.

To this indictment the defendant filed his demurrer, alleging grounds of demurrer to each count, which we shall proceed to consider.

The law now in force, regulating the taxation of costs and the approval of the accounts of clerks, marshals, and district attorneys, is the act of February 22, 1875, and entitled "An act regulating fees and costs, and for other purposes." (Sup. to Rev. Stat., vol. 1, p. 145.) So much of this act as is pertinent to this case is as follows:

SECTION 1. "That, before any bill of costs shall be taxed by any judge or other officer, or any account payable out of the money of the United States, shall be allowed by any officer of the Treasury in favor of clerks, marshals or district attorneys, the party claiming such account shall render the same with the vouchers and items thereof to a United States circuit or district court, and in the presence of the district attorney or his sworn assistant, whose presence shall be noted on the record, prove in open court, by his own oath or that of other persons having knowledge of the facts to be attached to said account, that the services therein charged have been actually and necessarily performed, as therein stated, and the court shall thereupon cause to be entered an order, approving or disapproving the account, as may be according to law and just."

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Previous to the enactment of this law, the matter of the approval of the accounts of clerks, marshals, &c., was regulated by section 846 of the Revised Statutes, which provided that such accounts should be examined and certified by the district judge of the district for which the officers were appointed, before they were presented to the accounting officers of the Treasury Department for settlement.

The elements of the offense, created by section 5438, which it was the purpose of the first and third counts to charge, are as follows:

"The presentation for approval to any person or officer in the civil service of the United States of a claim against the United States, which the party presenting knows to be false, fictitious, or fraudulent."

The elements of the offense prescribed by the statute, which it was the purpose of the second and fourth counts to charge, are as follows: "The using, for the purpose of aiding to obtain the payment of a false, fictitious, or fraudulent claim upon or against the Government of the United States of a false affidavit, knowing the same to contain any fraudulent or fictitious statement or entry."

If the counts of this indictment charge against defendant, as required by the rules of criminal pleading, an offense against the United States, they will be good and sufficient in law. We shall, therefore, consider the counts and look into the particular grounds of demurrer to ascertain whether this has been done.

It is alleged, as ground of demurrer to the first count, that it does not sufficiently charge that Turner, to whom the account was presented for approval, was an officer in the civil service of the United States, because it is alleged that when the account was presented he was the late marshal. There is, however, besides the averment that he was late marshal, a distinct averment that he was then an officer in the civil service of the United States. Now, if a marshal, whose time has expired, can, by

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