Wherefore this defendant prays that the said indictment, and each and every count thereof, may be quashed, and that he may be hence discharged. Burdett, Wardwell & Snow, for John W. Trafton.

Charles K. Cobb, for James A. Shedd.

C. P. Searle, Arthur P. Hardy, and Melvin O. Adams, for William Monroe.

H. N. Allen, for Grunberg, Baitler, and Burman.

Henry P. Moulton, U. S. Atty.

PUTNAM, Circuit Judge. On motions to quash, the court accepts only such propositions as raise clear points of law. Any involved question should be raised by demurrer or motion in arrest of judgment, where the court must meet the issues and dispose of them, holding them under consideration if necessary for that purpose; but a motion to quash, being addressed to the discretion of the court, and interposing avoidable delays, unless clearly justified, should be decided on the spot, and therefore our practice as to such motions is as stated.

Except on two propositions, we need only refer to Pettibone v. United States, 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed. 419, and Dealy v. United States, 152 U. S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545. In view of the nature of the conspiracy alleged, those cases cover every other point now brought to the attention of the court. It is to be borne in mind, in considering and applying the suggestions of counsel, that the pith of the offense is contained in the first seven or eight lines of the indictment. Six persons, including all who are represented here by the motions to quash, are charged with "unlawfully, willfully, knowingly, and designedly conspiring, combining, confederating, and agreeing to defraud the United States of America of large sums of money, to become due and payable to the United States of America as customs duties accruing upon divers importations of merchandise to be thereafter imported and brought by said. Grunberg, Baitler, and Burnham from a foreign country, to wit, from the republic of Switzerland, into the United States of America, to wit, into the port and collection district of Boston and Charlestown, in said district of Massachusetts." Every element is here which is necessary to make out to the common understanding an offense. But, according to the settled practice on indictments for conspiracy, whether the means to be employed are in themselves lawful or unlawful, it is not sufficient to merely allege in such general terms that the defendants have conspired to defraud. The indictment must allege, to some extent at least, the means intended to be used in defrauding.

What we have read from the indictment covers everything which the letter of the statute requires, except the overt act. All which follows is to be construed in reference to that fact.

Of course, there are various ways of defrauding the customs. Parties may conspire to defraud by smuggling in goods at night; they may conspire to defraud by bribing the customhouse officers; they may conspire to defraud by forging invoices; they may conspire to defraud by false invoices; and the pleader must ordinarily

show, in a general way, which of those methods the parties intended. The indictment must go at least so far as to point out something as to the way in which the parties intended to defraud, because there cannot be a conspiracy known to the grand jury, without some knowledge of the general line in which it was to march. Therefore the grand jury are supposed to know this, but they are not supposed to know all the details. The conspirators themselves may not have known them. They may agree on a general purpose to defraud by the use of false invoices, or by smuggling at night, and the rest they may leave for further consideration. They may even leave it for chance, to be determined according to the success or emergencies of the enterprise. Therefore it never has been necessary that, with reference to such details as have been called to our attention, the grand jury should be charged with knowledge.

Á criticism has been made with reference to the word "entry." In one of the cases cited the court went so far as to hold that it might determine from the context whether the word "entry" was used in a technical sense or in a popular sense. In this case the meaning of the word is determined from the context. It is clearly a customhouse entry. It is also clear that it is not necessary to declare that the collector had power to liquidate. It is not necessary in an indictment to allege what the law itself determines, and the law determines that, on the certificates named in the indictment being received by the collector, he is authorized to liquidate the duties.

As to the setting out the tenor of any paper, in Pooler v. United States (C. C. A.) 127 Fed. 509, the court had occasion to go over this topic carefully. In the federal courts, at least, it is not necessary to allege the tenor of an instrument unless it touches the very pith of the crime itself, as forgery or counterfeiting. The tenor of an instrument is never alleged in conspiracy indictments of the class at bar, where, as we have said, the setting out of the means is only incidental to the description of what is the substance of the offense. The suggestions made with reference to the effect of section 3169 of the Revised Statutes, as amended in 1875 (Act Feb. 8, 1875, c. 36, 18 Stat. 312 [U. S. Comp. St. 1901, p. 2060]), is very striking, but we can come to only one conclusion on these motions. We will not consider ourselves bound, so far as this point is concerned, by anything we now determine, if the point comes before us again, with full time for consideration, on a motion in arrest of judgment. We now think that the United States have an option, where customs officers and individuals have combined, to proceed against the customs officers under the new law or against all under the Revised Statutes. The new statute is so framed that it seems to permit a severance to such an extent that probably a single customhouse officer who has conspired with merchants may be indicted, whether the merchants are joined in the indictment or not; but take the case of one customhouse officer and one merchant. The merchant could not be indicted alone under any existing law, unless there is some statute of the United States which we do not know of, without joining the customhouse officer; and we cannot now accept the proposition that Congress intended to go so far as to enact that, because one is a custom

house officer, the merchant who conspires with him, when there are only two conspiring, shall be free from punishment as a conspirator. Therefore, at least for these motions, we cannot give that proposition effect, and all the motions are overruled.

UNITED STATES v. SWAN.

(District Court, E. D. Missouri, E. D. June 15, 1904.)

1. FORGERY-PENSION AFFIDAVIT-STATUTES-CONSTRUCTION.

The forgery of an affidavit by a pensioner, to be used in contesting his deserted wife's claim for one-half of his pension, as authorized by Act March 3, 1899, c. 460, § 1, 30 Stat. 1379 [U. S. Comp. St. 1901, p. 3288], is not an offense within Rev. St. U. S. § 5421 [U. S. Comp. St. 1901, p. 3667], providing that any person who falsely forges any writing for the purpose of obtaining or receiving, or enabling any other person, directly or indirectly, to receive, from the United States, any sum of money, shall be imprisoned, etc.

Motion in Arrest of Judgment.

D. P. Dyer, U. S. Dist. Atty.
J. J. Howard, for defendant.

ADAMS, District Judge. The accused was indicted under the provisions of section 5421 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3667], which reads as follows:

"Every person who falsely makes, alters, forges, or counterfeits

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.

He was tried, and found guilty as charged.

The particular charge laid in the indictment against the accused is that he forged an affidavit by signing the name of Alvin G. Burkey to it, and, after so doing, forwarded the same to the Commissioner of Pensions at Washington "for the purpose of obtaining from the United States a sum of money, to wit, the sum of $12 per month." From other averments of the indictment it appears that the accused, Swan, was a pensioner of the United States, receiving a fixed pension of $12 per month; that Martha J. Swan, his wife, pursuant to the provisions of the act of March 3, 1899, c. 460, § 1, 30 Stat. 1379 [U. S. Comp. St. 1901, p. 3288], presented her claim. for one-half of her husband's pension on the alleged ground that she had been deserted by him, and was of good moral character, and in necessitous circumstances; and that, while her claim was so pending before the Commissioner of Pensions, Swan made and used the forged affidavit set out in the indictment by way of resisting or defending against the claim of his wife. The motion in arrest, now under consideration, raises the question whether the making and using of the forged affidavit for such a purpose is within the comprehension of section 5421, supra. The indictment discloses that Swan's imme

diate purpose was to make use of the forged writing to prevent his wife's obtaining one-half of the pension, which had already been allowed to him. It is contended by the United States attorney that the effect of his act was to enable him to continue to draw the whole amount of his pension which had been theretofore granted to him. The argument is that, if he could defeat his wife's claim, he would thereafter collect it all as he had done theretofore, and, for this reason, that the use of the forged writing to defeat her claim was, in effect, the use of the writing to obtain the money himself. The offense denounced by section 5421 obviously is the making of the forged writing in aid of a claim against the United States, with the purpose and intent of thereby obtaining for the claimant, or some other person, a sum of money from the United States. The forged writing must have such direct relation to the object to be accomplished as to evince an intent or purpose on the part of the forger to thereby obtain money. The gist of the offense is as much the wrongful obtaining of the money as the forgery of the means to do so. Both of these elements must concur to constitute the offense. The forged writing must obviously be the means whereby the money was intended to be secured. In the light of these obvious reflections, what does the indictment disclose? Swan's real intent and purpose was to prevent the United States from paying money to his wife. She was making a claim for it, and he, instead of aiding her, was resisting the claim made by her. He was making no claim against the United States for himself. His right had already been established. At the worst, his remote intent and purpose was to defend and protect an existing right of his own, and not to extract any more money than was due him, but to prevent its division with his wife. This remote intent and purpose is not, in my opinion, the proximate actuating intent and purpose denounced by the statute in question. A penal statute should not be extended by implication. As said by a distinguished English jurist: "It would be exceedingly wrong that a man should, by a long train of conclusions, be reasoned into a penalty, when the express words of the act of Parliament do not authorize it." Rex v. Bond, 1 B. & Ald. 392. "Penal statutes are not enlarged by intendment, and acts not expressly forbidden by them cannot be reached merely because of their resemblance, or because they may be equally and in the same way demoralizing and injurious; * * * nor can a statute be extended beyond its grammatical sense or natural meaning by any plea of failure of justice." Sutherland on Statutory Construction, §§ 352, 355, and cases cited. The plain and natural meaning of the language employed in section 5421 is, in my opinion, to prevent the making or using of a forged writing in asserting a claim against the United States for the purpose of obtaining money on that claim, and it would, in my opinion, be a strained and unwarranted construction of this highly penal statute to hold that a forged writing made to resist a claim asserted against the United States would fall within its comprehension merely because the ulterior effect of the claim, if successful, would prevent the forger from collecting from the United States an amount of money otherwise conceded to be due him. To extend the statute to cover such

a state of facts would involve a train of reasoning resulting in new legislation, rather than in the construction of an existing statute. This kind of argument might prevail in a civil action, but it is too indirect and forced for a criminal case.

The motion in arrest must be sustained.

In re WILDE'S SONS.

(District Court, S. D. New York. June 9, 1904.)

1. BANKRUPTCY-REFEREES

INGS.

JURISDICTION-ADMISSIBILITY OF EVIDENCE-RUL

Since a referee in bankruptcy is required not only to take evidence, but to determine issues of fact and law based thereon, he has power to exclude inadmissible evidence offered under objection.

2. SAME HEARINGS-PRESENCE OF REFEREE.

A referee in bankruptcy, having power to rule on the admissibility of testimony offered before him, is bound to personally hear the evidence, unless his presence is waived by the parties.

In Bankruptcy.

Morris J. Hirsch, for Bennett & Co., creditors.
Smith & Bowman, for trustee.

HOLT, District Judge. This motion involves the question whether a referee in bankruptcy has any power to exclude evidence. As I understand it, an officer appointed to simply take testimony for the use of the court-as, for instance, an examiner in an equity suit-has no jurisdiction to exclude or pass upon testimony. Unless the parties refer any question of the admission of testimony to the court, he is obliged to take all that is offered. But I think that whenever any officer is appointed whose duty it is to take evidence, and also to exercise any judicial duty in regard to it-as to decide issues or to state the facts or law in an opinion or report-it is his right and his duty to exclude inadmissible evidence upon objection. Why should he admit evidence which it would be his duty to disregard if admitted? Substantially all the cases in which evidence is taken by referees in bankruptcy, either in their character as referees or as special commissioners, are cases in which they either decide questions outright, or draw conclusions from the evidence in the shape either of a report or an opinion, and I think that in all such cases the referee has the right to exclude evidence which he deems inadmissible. If error is committed by such exclusion, any party interested can take up the matter immediately on a certificate, or can urge the alleged error on final hearing. I am aware that there are authorities to the contrary for which I feel sincere respect, but none of them is necessarily controlling upon me, and I am not able to concur with them. The delay and expense of a bankruptcy system under which a referee has no power to exclude testimony, however irrelevant, is so great that such a method of procedure should not be permitted unless the principles of law absolutely require it. In my opinion, they do not require it in proceedings before referees in bankruptcy.