Full text of "A treatise on federal criminal law and procedure, with forms of indictment and writs of error and the federal penal code"

See other formats

11V

1111

mow- Affl\im\\\Am\\*'k

ill

II II a

< ■ . •',

iiiii

llllllil^

1111

§E

mmi

"ill

llll IP!

THE LIBRARY

THE UNIVERSITY

OF CALIFORNIA

LOS ANGELES

SCHOOL OF LAW
GIFT OF

HARRY G SADICOFF

A TREATISE

Federal Criminal Law

S OF INDICTMENT

AND

WRIT OF ERROR

AND

THE FEDERAL PENAL CODE

WILLIAM H. ATWELL,

Ex. U. 8. Attorney, Dallas, Texas.

Southwestern University, 1889.
University of Texas, 1891.

Third Edition

Columbia, Missouri
E, W. STEPHENS PUBLISHING COMPANY

1922.

Dedicated to that splendid character — my friend — the
Honorable Edward R. Meek, United States District Judge
for the Northern District of Texas.

T
At <v& *t

S487S2

PREFACE TO FIRST EDITION

The many years I have served as United States Attor-
ney have convinced me that the majority of the bar will
welcome a sort of compendium of Federal Law and Pro-
cedure and indictment forms, that may be of instant as-
sistance to them, when called into a criminal case in the
Federal Court.

No especial claim of originality is made for the pages
that follow. Keference books, annotations, dictionaries,
encyclopedias, and reports of the Courts have been fre-
quently and studiously consulted. A great portion of
the work, however, has been taken from my own anno-
tations, made during my service as an official.

In the preparation of the volume, I have been conscien-
tiously aided by my clerk and private secretary, Mr. J.
A. Lantz.

The book is offered with the prayer that the labor of
some fellow attorney may be somewhat lightened.

Yours verv earnestly,

WILLIAM H. ATWELL.
August 1, 1910.

PREFACE TO SECOND EDITION

In 1910 the first edition of my work on Federal Crimi-
nal Law was published. It was generously received by
the profession. Many complimented it — a few criticized
it. The five years that have passed since then have been
fat with decisions. I have tried to cite, and believe I
have cited, in the present volume, all of these new de-
cisions. I have also added another chapter on Practice
Suggestions.

In this book should be found, if not all of the decided
law with reference to a statute, a quick index to where

vi PREFACE.

sucli law may be found, and this is often all the busy,
painstaking lawyer wants.

WILLIAM H. ATWELL.
Dallas, Texas, March 1, 1916.

PREFACE TO THIRD EDITION.

Congresses and courts have been working so rapidly
since the publication of my Second Edition, in 1916,
that this Third Edition is necessary.

Regardless of political opinions it may be conceded
that the hegemony of the Federal Court is at hand.

That those who enter that tribunal may find some as-
sistance here is my prayer.

WILLIAM H. ATWELL.
Dallas, Texas, April 1, 1922.

ALPHABETICAL TABLE OF CASES.

EXPLANATION.

(The following table of cases shows cases cited in this volume;
if a case is cited more than once there will he a semi-colon between the
first and second citations. The letter P means the page in this volume
that the case will be found; thus, Wetzel v. U. S., 233 F. 904, p. 246,
means that Wetzel v. U. S. shown at 233 F. page 904, will be found in
Atwell's Federal Criminal Law at page 246 of this volume.)

Abbate v. U. S., 270 F. 735, p. 508.

Ackley v. U. S., 200 F. 218, p. 175.

Aczel v. U. S., 232 F. 652, p. 44.

Adams Express Co v. Key, U. S. Sup. Ct., May 13, 1907, p. 574.

Adams v. New York, 192 U. S. 575; 192 U. S. 586; 192 U. S. 585;

Law Ed. p. 64; 65; 67.
Adams v. U. S., 259 F. 214, p. 248.
Adler v. U. S., 182 F. 464, p. 60; 81; 182 F. 464.
Agnen v. U. S., 165 U. S. 36, p. 603; 42.
Alerta v. Moran, 9 Cranch 359, p. 420.
Alexander v. U. S., 57 F. 830, p. 133.
Alexis v. U. S., 129 F. 60, p. 163.
Allen v. U. S., 115 F. 4, 194 F. 664, p. 71; 286.
Allis v. U. S., 155 U. S. 117; 155 U. S. 123; p. 142; 92.
Ammerman v. U. S., 185 F. 1; 216 F. 326; 185 Fed. 1; 267 F. 136,

p. 283; 57; 72; 112.
American Express Co. v. Iowa, 196 U. S. 133, p. 574.
American Lithographic Co. v. Werckeister, 102, 21 U. S. 603, p. 14.
American School v. McAnnulty, 187 U. S., 104, p. 198.
American Slate Co. v. O'Halloran, 229 F. 77, p. 141.
American Steel Co. v. Davis, 261 F. 800, p. 47.
Amos v. U. S., 41 Sup. Ct. Rep. 266, p. 6.
Anderson v. Moyer, 193 F. 499, p. 144.
Anderson v. Patten, 247 F. 382, p. 247.
Anderson v. U. S., 170 U. S. 510, 42 Law Ed. 1126, 273 F. 21; 269 F. 65;

260 F. 55, p. 535; 44; 56; 36.
Andrews v. U. S., 224 F. 418, 162 U. S. 420, p. 171; 418; 134; 234.
Anduaga v. U. S., 254 F. 61, p. 51.
Angelus v. Sullivan, 246 F. 54, p. 234.
Anzine v. U. S., 260 F. 827, p. 235.
Apgar v. U. S., 255 F. 16, p. 20.
Appleby v. Chiss, 160 F. 984, p. 202.
Arver v. U. S., 245 U. S. 366, p. 234.
Athanasaw v. U. S., 227 U. S. 326, p. 640.
Atwell v. U. S., 162 F. 97, p. 110.
August v. U. S., 257 F. 388, p. 75; 126.
Ayala v. U. S., 268 F. 296, p. 44.

(vii)

viii Table of Cases.

Babcock v. U. S., 34 F. 873, p. 287.

Badders v. U. S., 240 U. S. 391, p. 56; 200 U. S. Supt. Ct., 1916.

Bachanan v. U. S., 233 F. 257, p. 432.

Back v. State, 62 Ala. 432, p. 209.

Baender v. U. S., 260 F. 832, p. 262.

Baer v. Rooks, 50 F. 898, p. 90.

Bailey v. State of Ala., 219 U. S. 219, p. 522.

Bailey v. U. S., 259 F. 88, p. 573.

Bain v. U. S., 262 F. 664, p. 618; 69.

Baird v. U. S., 196 F. 778, p. 654.

Balcom v. U. S., 259 F. 779, p. 82.

Baldwin v. U. S., 238 F. 794, p. 509.

Baldwin v. Frank, 120 U. S. 678, p. 439.

Baldwin v. Pacific, 199 F. 291, p. 125.

Balke v. Moyer, 206 F. 559, p. 99.

Ball v. U. S., 163 U. S. 663, 41 Law Ed. 300, 147 F. 32, 162 U. S.

662, 136, 35 Law. Ed. 384, p. 533, p. 103; 40; 100.
Ballard v. U. S., 245 F. 837, 237; p. 113, p. 573.
Ballew v. U. S., 160 U. S. 195, p. 99.
Balliet v. U. S., 129 F. 689, p. 19; 40.
Ballman v. Fagin, 200 U. S. 195, p. 13.
Bandy v. U. S., 245 F. 100, p. 118.
Bank v. British N. America, 91, N. Y. 110, p. 592.
Bank of U. S. v. Moss., 6 Howard, 38, p. 99.
Bank v. Whitman, 100 U. S. 689; 94 U. S. 343, p. 592.
Barber v. U. S., 35 F. 886, p. 289.
Barbot v. U. S., 273 F. 919, p. 509.
Bark v. Piatt, 172 F. 777, p. 594.
Bardick v. U. S., 236 U. S. 79, p. 651, 211 F. 493.
Barnap v. U. S., 40 Sup. Ct. Rep., 374, p. 308.
Barnes v. U. S., 166 F. 113, p. 177.
109 Barrels of Whiskey v. U. S., 94 U. S. 86, p. 578.
Bartel v. U. S., 227 U. S. 427, p. 179.
Bartlett v. U. S., 106 F. 885, p. 19.
Barton v. U. S., 202 U. S. 344, p. 220.
Baskin v. U. S., 149 F. 740, p. 284.
Bassett v. U. S., 9 Wallace 38, p. 97.
Bates v. Breble, 151 U. S. 149, p. 246.
Bates v. U. S., 269 F. 563, p. 134.

Battle v. U. S., 209 U. S. 36, 52 Law Ed. 671, p. 530.
Batts v. U. S., 273 F. 35, p. 241.
Bayland v. State, 69 Md. 170, p. 209.
Beavers v. Henkel, 194 U. S. 87, p. 28.
Beavers v. Haubert, 198 U. S. 86, p. 19.
Becharias v. U. S., 208 F. 143, p. 376.
Beckerman v. U. S., 267 F. 185, p. 462.
Belden v. U. S., 223 F. 726, p. 735.
Benbrook v. U. S., 186 F. 153, p. 575.
Eelfi v. U. S., 259 F. 822, p. 235.
Belknap v. U. S., 150 U. S. 588, p. 98.
Bennett v. State, 225 S. W. 375, p. 76.
Bennett v. U. S., 194 F. 630, p. 639.
Benson v. McMahon, 127 U. S. 457, p. 236.
Benson v. U. S., 240 F. 413, p. 45.
Bentall v. U. S., 262 F. 744; p. 242; 595.
Berg v. Bas. Co. & Harrison, U. S. Supt. Ct., Oct. 1916, Mar. 16. 1917.

p. 415.

Table of Cases. ix

Bergen v. Shaw, 249 F. 466, p. 82.

Bergin v. State, 188 S. W. 423, p. 20.

Bernard v. Lea, 210 F. 583, p. 119.

Bernstein v. U. S., 238 F. 923, p. 365; 95.

Berry v. Seawall, 65 F. 744, p. 133.

Berry v. U. S., 275 F. 680, p. 8.

Berryman v. U. S., 259 F. 200, p. 475.

Bese v. U. S., 144 F. 374, p. 542.

Betts v. U. S., 132 F. 228, p. 197; 132 F. 240, p. 57.

Bettman v. U. S., 224 F. 819, p. 201.

Beyer v. U. S., 251 F. 40, p. 636.

Biggerstaff v. U. S., 260 F. 926, p. 43; 635.

Billingsly v. U. S., 178 F. 653, p. 602.

Billingsley v. U. S., 274 F. 86, p. 241.

Bingham v. Bradley, 241 U. S. 511, p. 129.

Blackman v. U. S., 250 F. 449, p. 95, 202 F. 98, 105, p. 198.

Blackstone v. U. S., 261 F. 150, p. 635.

Blake v. U. S., 71 F. 286, p. 292.

Blanc v. U. S., 258 F. 921, p. 10.

Blair v. U. S., 250 U. S. 273, p. 18; 233.

Blanton v. U. S., 186 F. 965, p. 199.

Bliss v. U. S., 105 F. 508, p. 256.

Blisse v. U. S., 263 F. 961, p. 126.

Blitz v. U. S., 153 U. S. 308, p. 133.

Blunt v. U. S., 255 F. 332, p. 509.

Bolland v. U. S., 238 F. 529, p. 360.

Bomharger v. U. S., 219 F. 841, p. 176.

Bonfoey v. U. S., 253 F. 802, p. 199.

Booners v. U. S., 257 F. 963, p. 600.

Boone v. U. S., 257 F. 963, p. 57.

Booth v. U. S., 139 F. 252; 154 F. 836, p. 196; 87.

Boren v. U. S., 144 F. 801, p. 706.

Bosselman v. U. S., 239 F. 82, p. 301.

Botsford v. U. S., 215 F. 510, p. 174.

Bowes v. U. S., 229 F. 960, p. 178.

Bowers v. U. S., 148 F. 379, p. 162.

Boyd v. U. S., 116 U. S. 616, p. 15.

Boyle v. U. S., 259 F. 803, p. 235.

Brace v. U. S., 149 F. 871, p. 282.

Bradford v. U. S., 129 F. 49, p. 371.

Bradley v. U. S., 264 F. 79, p. 625.

Bram v. U. S., 168 U. S., 532, 42 Law Ed. 568, p. 62.

Bridgment v. U. S., 140 F. 577, p. 359.

Brinkman v. Morgan, 253 F. 553, p. 655.

Bromberger v. U. S., 128 F. 346, p. 161.

Brookerson v. State, 225 S. W. 375, p. 76.

Brooks v. U. S., 146 F. 223, p. 197.

Brownson v. Schulter, 104 U. S. 410, p. 99.

Brown v. U. S., 150 U. S. 93, 148 F. 379; 143 F. 60; 143 F. 60; 260 F.

752; 257 F. 703; 233 F. 353; 724, p. 248; p. 439; 168; 2; 606; 189;

54; 235.
Brown v. Walker, 161 U. S. 591, p. 107.
Breece v. U. S., 106 F. 686, 127 F. 761, 226 U. S. 1, p. 42.
Bruce v. U. S., 202 F. 98, 105, p. 792.
Bryant v. Robinson, 149 F. 321, p. 247.

Bryant v. U. S., 105 U. S. 941, p. 387; 91; 238, 257 F. 383; 257, 386.
Brzezinski v. U. S., 198 F. 65, p. 280.
Buessell v. U. S., 258 F. 811, p. 120.
Burdick v. U. S., 236 U. S. 79, p. 17.
Burrell v. Montana, 194 U. S. 578, p. 13.
Burton v. U. S., 196 U. S. 283, p. 327.

x Table of Cases.

C. v. Burk, 105 Mass. 376, p. 538.

C. v. Delaney, 1 Grant p. a. 224, p. 366.

C. v. Kingsbury, 5 Mass. 106, p. 366.

Caldwell v. Parker, U. S. Sup. Ct., Apr. 1920, p. 248.

Caha v. U. S., 152 U. S. 211, p. 281.

Caldwell v. U. S., 256 F. 805, p. 181.

Callan v. Wilson, 127 U. S. 549, p. 80.

Callahan v. Chicago, 158 F. 988, p. 84.

Callahan v. U. S., 240 F. 683, p. 538.

Cameron v. U. S., 192 F. 548, p. 17; 108.

Caminetti v. U. S., U. S. Sup. Ct. Nov. 1916, p. 636.

Campbell v. U. S., 221 F. 186, p. 142.

Cannetto v. U. S., 275 F. 42, p. 617.

Cannon v. U. S., 116 U. S. 55, 29 Law Ed. 561, p. 563.

Cape Fear, etc., v. Pearsal, 90 F. 437, p. 133.

Carlisle v. U. S., 194 F. 830; 194 F. 827; p. 72; 133.

Carey v. U. S., 265 F. 515, p. 635.

Carpenter v. Winn, 221 U. S. 533, p. 69.

Carter v. McClaugry, 183 U. S. 365; p. 220; 365.

Caryle v. U. S., 16 Wallace 147, p. 408.

Castle v. Lewis, 254 F. 917, p. 105.

Chadwick v. U. S., 141 F. 225, p. 238.

Chadwoski v. U. S., 194 F. 858, p. 616.

Chambers v. U. S., 237 F. 513; p. 76; 84; 201.

Chambliss v. U. S., 218 F. 154, p. 86.

Champion v. Ames, 188 U. S. 321, 47 Law Ed. 492, 95 F. 453; p. 207,

447; 448.
Charles v. U. S., 213 F. 707; 213 F. 717; 183 F. 566, p. 193; 301; 621.
Chavez v. U. S., 261 F. 174, p. 433.
Chelson v. Hoyt, 3 Wheat, 245, 4 Law Ed. 381, p. 286.
Chen Kee v. U. S., 196 F. 74, p. 115.
Chicago v. Giles, 235 F. 804, p. 454.
Chicago, etc., Railroad v. Chicago, 166 U. S. 226, 41 Law Ed. 979, p

432.
Chinese Laborers Case, 13 F. 291, p. 551.
Chin v. U. S., 118 F. 543; 264 F. 639, p. 76; 92.
Chin Fong, 258 F. 849, p. 117.
Chin Sing v. U. S., 227 F. 397, p. 630.
Chin Yah v. Caldwell, 187 F. 592, p. 115.
Chin Yow v. U. S., 208 U. S. 8; 52 Law Ed. 369, p. 105.
Chitwood v. U. S., 153 F. 551, p. 163.
Christopoula v. U. S., 230 F. 788; 230 F. 789, p. 44; 301.
Ciafridini v. U. S., 266 F. 471, p. 122.

Cincinnati v. Kentucky, U. S. Sup. Ct. Apr. 1920, p. 645.
Clark v. U. S., 211 F. 916; 202 F. 740; 211 F. 917; 245 F. 112; 265 F.

104; 269 F. 329, p. 82; 175; 179; 201; 382; 459.
Clark v. Express Co., U. S. Sup. Ct. Jan. 1917, p. 507.
Clay v. Waters, 178 F. 385, p. 618.
Cling v. U. S., 118 F. 538, p. 367.
Clinton v. Englebrecht, 80 U. S. 449, 13 Wallace, 20 Law Ed. 650, p.

53.
Clune v. U. S., 159 U. S. 590; p. 133; 155; 363.
Coastwise Lumber Co. v. U. S., 259 F. 849, p. 68.
Cochran v. U. S., 147 F. 206, 157 U. S. 293, p. 104; 604.
Coffee v. U. S., 116 U. S. 445, 29 Law Ed. 684; p. 577.
Coffey v. U. S., 116 U. S. 436, p. 286.
Coffin v. U. S., 156 U. S. 862; 156 U. S. 445; 156 U. S. 432; p. 91; 93;

248.

Table op Cases. xi

Cohen v. U. S., 214 F. 32; 157 F. 651; 170 F. 715; 214 F. 23; p. 59;

124; 280; 288; 641.
Cohn V. U. S., 258 F. 353, p. 462.
Cole v. U. S., 269 F. 250, p. 274.
Coleman v. State, 44 Tex. 109, p. 118.
Coleman v. U. S., 268 F. 468, p. 294.
Collins v. U. S., 253 F. 609; 219 F. 671; p. 123; 141.
Colt v. U. S., 190 F. 305, p. 197; 305.
Commonwealth v. Culver, 126 Mass. 464, p. 60.
Commonwealth v. Davine, 155 Mass. 224; 29 N. E. 515, p. 288.
Commonwealth v. Jackson, 132 Mass. 16, p. 87.
Com. v. Tuck, 20 Pick. 356, p. 152.
Com. v. Stebbins, 8 Gray, Mass. 492, p. 237.
Connors v. U. S., 158 U. S. 408, p. 122.
Conrod v. U. S., 127 F. 798, p. 155; 371.

Cook County Nat. Bank v. U. S., 107 U. S. 445, 27 Law Ed. 537, p. 318.
Cook v. U. S., 138 U. S. 185, 34 Law Ed. 906, p. 528.
Coomeer v. U. S., 213 F. 2, p. 179.
Cooper v. U. S., 247 F. 45, p. 43.
Corenman v. U. S., 188 F. 424, p. 133.
Corley v. State, 50 Ark. 305, p. 60.
Counselman v. Hitchcock, 142 U. S. 547, p. 617.
Couture v. U. S., 265 F. 525, p. 236.
Coyne v. U. S., 246 F. 120, p. 113.
Crane v. U. S., 259 F. 480, p. 201.
Crain v. U. S., 162 U. S. 625, p. 49.
Creekmore v. U. S., 237 F. 734, p. 35.

Cross v. North Carolina, 132 U. S. 140, 33 Law Ed. 287, p. 569; 645.
Culver v. U. S., 257 F. 63, p. 237.
Cummins v. U. S., 238 F. 844, p. 599.
Curley v. U. S., 130 F. 1, p. 344.
Cutting v. Van Fleet, 252 F. 100, p. 34.
Curtis Publishing Co. v. Fed. 270 F. 881, p. 149; 235.

Dahl v. U. S., 234 F. 618, p. 365.

Dalton v. U. S., 154 F. 61, p. 197.

Danciger v. Cooley, U. S. Sup. Ct. Jan. 7, 1919; p. 453.

Danciger v. Stone, 188 F. 511, p. 452.

Daniels v. U. S., 196 U. S. 459; 196 F. 459, p. 280; 616.

David v. Beason, 133 U. S. 33, p. 559.

Davis v. Beason, 133 U. S. 333, 33 Law Ed. 637, p. 174.

Davis v. State, 138 Ind. 11, p. 71.

Davis v. U. S., 274 F. 928; 247 F. 394; 107 F. 753; p. 4; 26; 430.

Davy v. U. S., 208 F. 238, p. 301.

Day v. U. S., 229 F. 534, p. 573.

Dean v. U. S., 266 F. 694, p. 510.

Debs v. U. S., 249 U. S. 211, p. 181.

DeBarr, 179 U. S., 320, p. 195.

DeFour v. U. S., 260 F. 597, p. 247.

Degnan v. U. S., 271 F. 291, p. 88.

DeLomos v. U. S., 91 F. 497, p. 255.

DeMoss v. U. S., 250 F. 87, p. 89; 507.

Denning v. U. S., 247 F. 463, p. 641.

DeOrzco v. U. S., 237 F. 1008, p. 51.

Dernberger v. B. & O. 243 F. 21, p. 238.

Dewitt v. Skinner, 232 F. 444, p. 246.

Dexter v. Kellas, 113 F. 48, p. 127.

Dickinson v. U. S., 159 F. 801, p. 79.

xii Table of Cases.

Diggs v. U. S., 220 F. 546; 220 F. 545, p. 118; 640.

Dill v. U. S., 152 U. S. 539, p. 372.

Dimmick v. U. S., 116 F. 825; 135 F. 257; 121 F. 638; 116 F. 825; 121

F. 638; p. 71; 229; 317; 359; 412.
Ding v. U. S., 246 F. 80; p. 117; 233.
Dobbins Distillery Co. v. U. S., 96 U. S. 395.
Dodge v. U. S., 258 F. 300, p. 91.
Doe v. U. S., 253 F. 903, p. 182.
Dolan v. U. S., 133 F. 444; p. 54; 57; 94.
Donnell Co. v. Wyman, 156 F. 415, p. 202.
Doremus v. U. S., 262 F. 849, p. 510.
Dorsey v. U.S., 101 F. 746, p. 603.

Doss v. Tyack, 14 Howard 296, 14 Law Ed. 428, 14 F. 296, p. 53; 54.
Dow v. U. S., 82 F. 904; 226 F. 145, p. 117; 604.
Doyle v. Union Pacific R. R. Co., 147 U. S. 430, p. 92.
Dreier v. U. S., 221 U. S. 394, p. 16.
Drew v. Thaw, U. S. Sup. Co. Oct. Term, 1914, 235 U. S. 432; p. 107;

547.
Duff v. U. S., 185 F. 101, p. 582.
Dukes v. U. S., 275 F. 142, p. 9.

Dunn v. State, 224 S. W. 893, 40 111. 465; p. 20; 209.
Dunn v. U. S., 238 F. 508, p. 20.
Dunlop v. U. S., 165 U. S. 486; p. 172; 238.
Duplex v. Deering, 41 Sup. Ct. Rep. 173; 252 F. 722; 41 Sup. Ct. 172,

p. 141; 236; 367.
Durland v. U. S., 161 U. S. 306, p. 191.
Durst v. U. S., 266 F. 65, p. 475.
Dusold v. U. S., 270 F. 574, p. 508.
Duvall v. Dyche, 275 F. 440, p. 507.
Duvall v. U. S., 154 U. S. 548, p. 422.
Dwinnel v. U. S., 186 F. 754, p. 364.
Dyar v. U. S., 186 F. 620; 106 F. 623, p. 87; 101; 198.
Dye v. U. S., 262 F. 6; p. 122; 242; 365.
Dyer v. U. S., 179 F. 160, p. 133.

Easterday v. McCarthy, 256 F. 651, p. 366.
Easton v. The State, 188 U. S. 200, 47 Law Ed. 456, p. 645.
Eber v. U. S., 234 F. 221, p. 119.
Edelstein v. U. S., 149 F. 642, p. 13.
Edgington v. U. S., 164 U. S. 361, 41 Law Ed. 467, p. 85.
Edwards v. U. S., 226 F. 848; 259 F. 686, p. 201; 382.
Elder v. U. S., 243 F. 84, p. 84.
Eisenberg v. U. S., 261 F. 598, p. 58; 75.
Ellis v. State, 65 Miss. 44, 7 Am. 634, p. 60.
Elmer v. U. S., 260 F. 646, p. 76.
Elrod v. U. S., 266 F. 55, p. 635.
Klvvell v. U. S., 275 F. 775, p. 7.
Kmeralds v. U. S., 154 F. 839, p. 659.
Emanuel v. U. S., 196 F. 317; p. 53; 197.
Enders v. U. S., 188 F. 75, p. 588.
Ennis v. U. S., 154 F. 842, p. 161.
England v. U. S., 272 F. 102, p. 635.

Epstein v. U. S., 271 F. 282; 196 F. 354, p. 5; 8; 131; 284..
Erbaugh v. U. S., 173 F. 434, p. 190.
Erhardt v. U. S., 268 F. 326, p. 91.

Espy v. Bank of Cincinnati, 18 Wallace 619, p. 592.
Estes v. U. S., 227 F. 818, p. 659.

Evans v. Trenton Zab, 764; 153 U. S. 584; 153 U. S. 507; p. 177; 312;
603.

Table of Cases. xiii

Ewing v. U. S., 136 F. 53; 240 F. 241, p. 189; 52.

Exparte Avery, 235 F. 248, p. 234.

Exparte Bain, 121 U. S. 13, p. 9.

Exparte Beck, 245 F. 967, p. 120.

Exparte Blodget, 192 F. 73, p. 106.

Exparte Birdsey, 244 F. 972, p. 129.

Exparte Bohnian, et. al., 4 Cranch 75, p. 408.

Exparte Byers, 32 F. 404, p. 529.

Exparte Calloway, 246 F. 263, p. 234.

Exparte Caset, 18 F. 86, p. 97.

Exparte Chin, 224 F. 138, p. 117.

Exparte Charlton, 185 F. 880, p. 128; 547.

Exparte Cohen, 245 F. 667, p. 234.

Exparte Clark, 100 U. S. 399, p. 438.

Exparte Crookshank, 269 F. 980, p. 645.

Exparte Crowley, 268 F. 1016, p. 129.

Exparte Curtis, 106 U. S. 371, Lawyers Cooperative Edition, Book 27,

page 232, p. 324.
Exparte Doran, 32 F. 76, p. 187.
Exparte Fairbanks Co., 194 F. 978, p. 135.
Exparte Finegan, 270 F. 665, p. 508.
Exparte Flores, 272 F. 783, p. 118.
Exparte Friday, 43 F. 916; 43 F. 920, p. 98; 158.
Exparte Gerlach, 247 F. 616, p. 234.
Exparte Geisler, 50 F. 411, p. 651.
Exparte Gilmore, 11 Cal. 624, p. 98.
Exparte Glenn, 111 F. 261, p. 11.
Exparte Graves, 269 F. 461, p. 105.
Exparte Graham, 215 F. 813, p. 128; 548.
Exparte Gregory, 210 F. 680, p. 116.
Exparte Harvell, 76 F. 997, p. 47.
Exparte Hibbs, 261 F. 421, p. 222.
Exparte Lair, 177 F. 789, p. 632.
Exparte Lamar, 274 F. 160, p. 248.
Exparte Lange, 18 Wallace 163, p. 97.
Exparte Lennon, 150 U. S. 393, p. 372.
Exparte Loo, 210 F. 995, p. 178.

Exparte Lyman, 247 F. 611; 202 F. 303; p. 95; 304; 374.
Exparte Jackson, 96 U. S. 727; 263 F. 110, p. 5; 313.
Exparte Jin Hing, 211 F. 73, p. 106.
Exparte King, 246 F. 848, p. 120.
Exparte Houghton, 8 F. 897, p. 250.

Exparte Hudgings, 39 Sup. Ct. Rep. 331, 249 U. S. 378, p. 3; 35.
Exparte McCusky, 40 F. 74, p. 9.
Exparte McLeod, 120 F. 10, p. 300.
Exparte Mitchell, 256 F. 229, p. 117.
Exparte Montgomery, 244 F. 967, p. 129.
Exparte Orocco, 201 F. 106, p. 414.
Exparte Peake. 144 F. 1020, p. 99.
Exparte Peters, 12 F. 46, p. 152.
Exparte Robinson, 19 Wallace 505, p. 300.
Exparte Riggins, 134 F. 404, p. 437.
Exparte Scherer, 195 F. 334, p. 128.
Exparte Shores, 195 F. 627, p. 304.
Exparte Snow, 120 U. S. 274, 30 Law Ed. 658, p. 563.
Exparte Siebold, 100 U. S. 371, p. 438.
Exparte Thaw, 209 F. 954; 214 F. 423, p. 101; 128.
Exparte Tongue, 29 Oregon 48, p. 296.
Exparte U. S., 242 U. S. 27, p. 97.
Exparte Uppercu, 239 U. S. 435, p. 246.

xiv Table of Cases.

Exparte Wizua, 188 F. 541, p. 129; 548.

Exparte Virginia, 100 U. S. 339; 25 Law Ed. 676, p. 432.

Exparte Waterman, 33 F. 29, p. 97.

Exparte Westbrook, 250 F. 637, p. 467.

Exparte Wilson, 114 U. S. 423, p. 9.

Exparte Yarbrough, 10 U. S. 651; 28 Law Ed. 274, p. 428.

Exparte Young, 211 F. 371; 211 F. 370, p. 115; 118.

Exparte Zentner, 188 F. 344, p. 548.

Falls v. U. S., 209 F. 547, p. 198.

Fane v. U. S., 209 F. 525, p. 198.

Farley v. U. S., 269 F. 721; p. 96; 241; 507.

Faraone v. U. S., 259 F. 507, p. 577.

Farmers National Bank v. Deering, 91 U. S., 33, p. 590.

Faulkner v. U. S., 157 F. 840, p. 197.

Faust v. U. S., 163 U. S., 452, p. 227.

Feder v. U. S., 257 F. 694, p. 366.

Felix v. U. S., 186 F. 685, p. 432.

Felton v. Spiro, 78 F. 576, p. 133.

Feely v. U. S., 236 F. 903, p. 243.

Feener v. U. S., 249 F. 425, p. 248.

Ferry v. U. S., 120 F. 483, p. 578.

Field v. U. S., 137 F. 6, p. 614.

Fielder v. U. S., 227 F. 832, p. 243.

Filasto v. U. S., 21 F. 329, p. 641.

Filer v. U. S. Steele, 228 F. 242, p. 106. ■

Fillipon v. U. S., 231 F. 561, p. 201.

Findley v. Treat, 205 U. S. 20; also 131 F. 968, p. 46.

Finley v. U. S., 261 F. 850, p. 378.

Finnegan v. U. S., 231 F. 561, p. 201.

Firpo v. U. S., 261 F. 850, p. 378.

First Nat. Bank of Anamoose v. U. S. 206 F. 374, p. 452.

First v. Mercantile, 273 F. 119, p. 600.

Firth v. U. S., 253 F. 37, p. 239.

Firth Sterling Steel Co. v. Bethelem Steel Co., 199 F. 353, p. 66.

Fisch v. U. S., 274 F. 208, p. 507,

Fischer v. Palmer, 259 F. 355, p. 233.

Fish v. U. S., 215 F. 545; 215 F. 544; p. 72; 74.

Fisher v. U. S., 266 F. 667, p. 635.

Fitzpatrick v. U. S., 178 U. S. 307, p. 9.

Fitzsimmons v. U. S., 156 U. S. 477, p. 212.

Flagg v. U. S., 233 F. 481, p. 5; 63.

Fleck v. U. S., 265 F. 617, p. 462.

Fletcher v. State, 49 Ind. 124, p. 71.

Flickenger v. U. S., 150 F. 1, p. 603.

Floren v. U. S., 186 F. 961, p. 176.

Flynn v. People, 222 111. 309, p. 19.

Foley v. U. S., 241 F. 587, p. 76.

Pontana v. U. S., 262 F. 283, p. 179.

Ford v. U. S., 259 F. 553; 260 F. 657; 272 F. 491; 259 F. 552. p. 18; 239.

Foreman v. U. S., 255 F. 621, p. 510.

Foster v. U. S., 256 F. 207; 253 F. 481; 165 C. C. A; 188 F. 305, p. 81;

93; 123; 182; 228.
Foss V. U. S., 266 F. 881, p. 302.
Four Hundred etc., v. U. S., 226 U. S. 173, p. 621.
Pox v. Ohio. 5 Howard U. S. 434, p. 11.
POX v. State, 5 Howard 432, p. 561.
Fraina v. D. S., 255 P. 28, p. 182; 213.

Table or Cases. • xv

France, et al, v. U. S., 164 U. S. 674; 41 Law Ed. 595; 164 U. S. 676;

41 Law Ed. 595; 164 U. S. 696, p. 206; 372.
Francis v. IT. S., 152 F. 157; 153 F. 155; 188 U. S. 375; 47 Law Ed. 510.

p. 99; 197; 448.
Frank v. Mangum, U. S. Sup. Ct., Oct. Term, 1914, p. 106.
Franklin v. U. S., 216 U. S. 559; U. S. Sup. Ct., Oct. Term, 1909, p.

359; 543.
Frankfurt v. U. S., 231 F. 903, p. 617.
Freed v. U. S., 266 F. 1012; p. 118; 635.
Freeman v. U. S., 244 F. 22; 237 F. 815; 227 F. 734; 227 F. 732; p. 12;

26; 144; 201; 245.
Freedman v. U. S., 274 F. 603, p. 462.
Frey v. Cudahay, 41 Sup. Ct. Rep., 451, p. 140

Friedman v. U. S., 236 F. 816; 260 F. 388; 233 F. 429; p. 462; 510; 617.
Frisbi v. U. S., 157 U. S. 160, p. 178.
Frohwerk v. U. S., U. S. Sup. Ct., March, 1919, p. 366.
Fyke v. U. S., 254 F. 227, p. 509.

Gardner v. U. S., 230, 575, p. 199.

Gayon v. McCarthy, 40 U. S. Sup. Ct., 244, p. 48.

Gavieres v. U. S., 220 U. S. 338, p. 12; 220.

Garland v. State, 232 U. S. 642, p. 49.

Garst v. U. S., 180 F. 339, p. 80.

Garaufls v. U. S., 246 F. 910, p. 599.

Galbreath v. U. S., 257 F. 688, p. 600.

Gautt v. U. S., 108; 261, p. 371.

Gernert v. U. S., 240 F. 403, p. 199.

Geer v. Ct., 161 U. S. 519, p. 457.

Gelston v. Hoyt, 3 Wheat. 246, p. 424.

Georgia v. Jennings, 50 S. C. 156, p. 296.

Gillette v. U. S., 236 F. 215, p. 635.

Gill v. U. S., 262 F. 502, p. 34.

Gilmore v. U. S., 268 F. 721, p. 75.

Glickstein v. U. S., 222 U. S. 139, p. 16.

Gluckman v. Henkle, 221 U. S. 508, p. 547; 128.

Glasgow v. Moyer, 225 U. S. 425, p. 130.

Gladden v. Gabbert, 219 F. 855, p. 133.

Glim v. U. S., 177 F. 679, p. 192.

Gladstone v. U. S., 248 F. 117, p. 247.

Goldman v. U. S., 263 F. 340, p. 659; 245 U. S. 474, p. 144; 220 F.

57, p. 192.
Gourdain v. U. S., 154 F. 453, p. 197.
Good Shot v. U. S., 154 F. 258, p. 9.
Gompers v. U. S., 233 U. S. 604, p. 31.
Gouled v. U. S., 41 Sup. Ct. Rep., 261, p. 6.
Goodwin v. U. S., 200 F. 123, p. 72.
Gowling v. U. S., 269 F. 215, p. 76.
Gordon v. U. S., 254 F. 53, p. 113.
Goldsberg v. U. S., 160 U. S., 70, p. 127.
Gould v. U. S., 209 F. 730, p. 141.
Good v. U. S., 159 U. S. 663, p. 160.
Goldstein v. U. S., 258 F. 908, p. 118.
Goll v. U. S., 166 F. 419, p. 588.
Goublin v. U. S. 261 F. 5, p. 235.
Goff v. U. S., 257 F. 294, p. 236.
Green v. U. S., 150 F. 561, p. 706; 266 F. 779, p. 18; 75; 18; 238; 245

U. S. 559, p. 89.
Griffith v. U. S., 261 F. 159, p. 635.

xvi Table of Cases.

Growling v. U. S., 269 F. 215, p. 635.

Grant v. U. S., 268 F. 443, p. 201; 227 U. S. 704, p. 29; 252 F. 693, p.

366; 150 F. 560, p. 402.
Gritt v. Bond, 102 Maryland, 383, p. 9.
Grantell v. U. S., 232 U. S. 647, p. 44.
Gross v. U. S., 265 F. 606, p. 82.
Grimes v. Malcolm, 164 U. S. 490, p. 89.
Griggs v. Nadean, 250 F. 783, p. 92.
Grayboges, v. U. S.. 250 F. 793, p. 118.
Gretsch v. U. S., 242 F. 897, p. 119; 231 F. 57, p. 617.
Grin v. Shine, 177 U. S. 47, p. 128.
Grandi v. U. S., 262 F. 123, p. 143.
Grimm v. U. S., 156 U. S. 604, p. 168.
Griffin v. U. S., 248 F. 6, p. 188.
Give Woo v. U. S., 250 F. 428, p. 509.
Gregory v. U. S., 272 F. 119, p. 510.

Graves v. U. S., 165 U. S., 323; 105 U. S. 121; p. 586; 599.
Gradwell v. U. S., 243 U. S. 476, p. 442.
Great Northern v. Rainea, 255 F. 762, p. 454.
Grandi v. U. S., 262 F. 123, p. 462.
Grogson v. Lynch, 163 U. S. 468, p. 219.
Grancourt v. U. S., 258 F. 25, p. 235.
Grahl v. U. S., 261 F. 487, p. 398.
Grayson v. U. S., 272 F. 554, p. 366.
Gulff Ry. v. Campbell, 49 F. 354, p. 90.
Gurinsky v. U. S., 259 F. 378, p. 75.
Guinn v. U. S.( 228 F. 104, p. 432.

Hagan v. U. S., 268 F. 344, p. 366.

Hale v. Henkel, 201 U. S. 67; 201 U. S. 43, p. 17; 13.

Hall v. Willcox, 225 F. 333, p. 203.

Hallock v. U. S., 185 F. 417, 124, p. 288.

Hamburg v. U. S., 250 F. 747, p. 236.

Hamm v. Chicago Railway Co., 243 F. 143, p. 450.

Hanley v. U. S., 186 F. 711, p. 125.

Hanna v. Cline, 263 F. 599, p. 248.

Hannish v. U. S., 227 F. 584, p. 18; 163.

Hanson v. U. S., 157 F. 749, p. 177.

Hardesty et. al, U. S., 164 F. 420, p. 66.

Hardy v. U. S., 71 F. 158, p. 50; 184 F. 702, 214 U. S. 519, p. 523.

Hair v. U. S., 240 F. 333, p. 199.

Harlan v. McGouer, 218 U. S., 44, p. 106; 218 U. S. 442, 526.

Harrington v. U. S., 267 F. 97, p. 365.

Harrison v. U. S., 200 F. 673; 163 U. S. 140; 200 F. 662; 140; p. 104;

53" 54' 191.
Jeff Harrison v.' U. S.( 163 U. S. 140, p. 154.
Harshfield v. U. S., 260 F. 659, p. 182.
Harts v. U. S., 140 F. 843, p. 659.
Harwick v. U. S., 257 F. 505, p. 282.
Hass v. Henkle, 216 U. S. 462, p. 344.
Hastings v. Murchie, 219 F. 83, p. 48.
Hawke v. Smith, 40 Sup. Ct. Rep., 495, p. 507.
Haynes v. U. S., 101 F. 819, p. 429; 94.
Hays v. U. S., 231 F. 106; 169 F. 101, p. 635, 604.
Hendry v. U. S.( 233 F. 5, p. 201.
Hendricks v. Gonzales, 67 F. 351, p. 422.
Hendricks v. U. S., 223 U. S. 178, p. 284.
Henry v. Henkel, U. S. Sup. Ct. Oct. Term, 1914, p. 106.

Table of Cases. xvii

Henry v. Sowles, 28 F. 481, p. 320.

Hinningsen v. Whaley, 230 F. 650, p. 235.

Heitler v. U. S., 244 F. 140; 244; 140, p. 309; 636; 119.

Hickory v. U. S., 151 U. S. 303, p. 126; '93; 160 W. S. 408.

Hickson v. U. S., 258 F. 867, p. 95; 258 F. 867, p. 654.

Higgings v. U. S., 185 F. 710, p. 133.

Hillman v. U. S., 192 F. 264, p. 41.

Hillsboro v. Knotts, 273 F. 221, 41 Sup. Ct. Rep., 298, p. 245.

Hogan v. O'Neil, 41 Sup. Ct. Rep., 222, p. 29.

Hogue v. U. S., 184 F. 245, p. 283.

Hogus v. U. S., 192 F. 918, p. 283.

Holder v. U. S., 150 U. S. 91, p. 33.

Holgren v. U. S., Oct. Term, 1909, 156 F. 439, p. 403.

Hollis v. U. S., 246 F. 832, p. 118.

Hollister v. Zions, 111 U. S. 62.

Holmacher v. U. S., 266 F. 979, p. 88.

Holsman v. U. S., 248 F. 193; 248 F. 193, p. 365, p. 200.

Homer v. U. S., 143 U. S. 207, p. 152.

Hoover v. State, 59 Ala. 57, p. 236; 63, p. 266.

Hopt v. Utah, 110 U. S., 574, p. 61.

Horman v. U. S., 116 F. 350, p. 189; 116 F. 350, p. 191.

Horn v. U. S., 182 F. 721, p. 189.

Horn v. Mitchell, 232 F. 819, p. 444.

Horner v. U. S., 147 U. S. 449, p. 208; 143 U. S. 570; 143 U. S. 449, p.

213.
Hornnig v. D. C, 41 Sup. Ct. Rep., 53, p. 83.
Horowitz v. U. S., 262 F. 48, p. 123.
Hosier v. U. S., 260 F. 155, p. 510.
Hoss v. U. S., 232 F. 328, p. 654.

Houston Ice Cream Co. v. Harlan, 212 S. W. 779, p. 75.
Houston v. U. S., 217 F. 852, p. 374.
Howard v. Moyer, 206 F. 555, p. 99.
Howe v. U. S., 247 F. 292, p. 118.
Huber v. U. S., 259 F. 766, p. 534.
Huffman v. U. S., 259 F. 35, p. 635.
Hume v. U. S., 118 F. 689, p. 189.
Humas v. U. S., 182 F. 185, p.* 189.
Hunter v. Hunter, 187 S. W. 10, 49, p. 143.

Hunter v. U. S., 272 F. 235, p. 10, 264 F. 831, p. 76; 264 F. 831, p. 508.
Huntington v. U. S., 175 F. 950, p. 373.
Hyde v. Shine, 199 U. S., 62, p. 371.

Indianapolis R. R. Co. v. Horst, 93 U. S. 291, p. 98.

Indianapolis, etc., v. Horst, 83 U. S. 300, p. 89.

Innes Tobin, 240 U. S. 127; U. S. Sup. Ct. Feb., 1916, p. 129; 548.

In re Aldrich, 16 F. 370; p. 266.

In re Baldwin, 27 F. 187, p. 439.

In re Barber, 75 F. 980, p. 187.

In re Beach, 259 F. 597, p. 241.

In re Belknap, 96 F. 614, p. 49.

In re Benson, 130 F. 486, p. 46.

In re Boggs, 45 F. 475, p. 11.

In re Bonner, 151 U. S. 242; 151 U. S. 252; p. 94; 97.

In re Briggs, 135 N. C. 122, p. 13.

In re Brule, 71 F. 943, p. 300.

In re Byron, 18 F. 788, p. 143.

In re Canter & Cohen, 117 F. 356, p. 15.

In re Charge to Grand Jury, 30 Fed. Case No. 18265, 2 McLean 1, p. 415.

xviii Table of Cases.

In re Christian, 82 F. 885, p. 98.

In re Classen, 140 U. S. 205, p. 9.

In re Coy, 312 F. 794; 127 U. S. 731; p. 372; 439.

In re Day, 27 F. 678, p. 151.

In re Debs, 158 U. S. 564, p. 155.

In re Dow's Estate, 105 F. 889, p. 15.

In re Duplex, 252 F. 722, p. 235.

In re Fowler, 4 F. 303, p. 151.

In re Gregory, 219 U. S. 210, p. 106.

U. S. v. Grin, 112 F. 795, p. 28.

In re Groves, 117 F. 798, p. 97.

In re Harris, 221 U. S. 274; 164 F. 292; 221 U. S. 272,' p. 14; 617.

In re Henry, 123 U. S. 373; 123 U. S. 372, p. 195; 197.

In re Hess, 134 F. Ill, p. 13.

In re Jen Yuen, 188 F. 350, p. 101.

In re Kaine, 14 Howard 103, p. 28.

In re Kelley, 243 F. 696; 71 F. 545, p. 35; 543.

In re Kollock, 165 U. S. 536; 41 Law Ed. 813; 243 F. 696, p. 303; 584.

In re Lancaster, 137 U. S. 393, p. 439.

In re Loney, 134 U. S. 372, p. 644.

In re Marks, 176 F. 1018, p. 618.

In re Marx, 255 F. 344, p. 64.

In re Miller, 114 F. 963; 42 F. 307, p. 371; 650.

In re Mills, 135 U. S. 263, p. 96.

In re Mize, et al, 172 F. 945, p. 618.

In re Nagle, 135 U. S. 63; 39 F. 833, p. 300; 301.

In re Najour, 174 F. 735, p. 116.

In re Neagle, 135 U. S. 1; 34 Law Ed. 55, p. 428.

In re Nelson, 69 F. 712, p. 560.

In re Perkins, 100 F. 950, p. 28.

In re Purvine, 96 F. 192, p. 618.

In re Quarrels, 158 U. S. 532, p. 438.

In re Quinn, 176 F. 1020, p. 46.

In re Rapier, 143 U. S. 110; p. 177; 213.

In re Sing Tuck, 126 F. 397, p. 28.

In re Steiner, 195 F. 300, p. 33."

Isabell v. U. S., 227 F. 788, p. 143; 243.

In re San Quah, 31 F. 327, p. 515.

Issacs v. U. S., 159 U. S. 487, p. 127.

In re Strupp, 12 Blatchf. 509, p. 89.

In re Toledo Newspaper Co. v. U. S., 237 F. 986; 38 Sup. Ct. Rep., 560;

247 U. S. 402, p. 34.
In re Tri State, 253 F. 605, p. 5.
In re U. S. v. Providence, 241 F. 524, p. 34.
In re Waite, 81 F. 359, p. 650.
In re Weinstein, 271 F. 5; 271 F. 763, p. 6.
I p. re Welch, 57 F. 576, p. 650.
In re Weltz, 123 U. S. 136, p. 163.
In re Wight, 134 U. S. 136, p. 163.
In re Wilson, 168 F. 566, p. 621.
In re Wright, 134 U. S. 136, p. 99.
In re Zenter, 188 F. 344, p. 128.

Jacobs v. U. S., 161 F. 694, p. 615.
Jacobson v. U. S., 272 F. 399, p. 423.
Jack v. Kansas, 199 U. S. 381, p. 13.
Jackson v. U. S., 266 F. 770, p. 462.
Jacksonville v. Smith, 78 F. 295, p. 135.

Table of Cases. xix

James v. Evans, 149 F. 136, p. 133.

Japnese Immigrant Case, 189 U. S. 86; 47 Law Ed. 72, p. 105.

Jelke v. U. S., 255 F. 264, p. 366.

Jeller v. U. S., 213 U. S. 138, p. 634.

Jennings v. U. S., 264 F. 399, p. 35.

Jin Foey Moy v. U. S., 41 Sup. Ct. Rep., 98, p. 248; 510.

Joedick v. U. S., 85 F. 372, p. 216.

Johnson v. U. S., 163 F. 30; 158 F. 69; 170 F. 581; 221 F. 250; 215 F.

679; 225 U. S. 405; 270 F. 168; 247 F. 92; 158 F. 69; p. 20; 49; 92;

612; 614; 615; 639; 641.
Johnson v. Sayre, 158 U. S. 109, p. 361.
Jolly v. U. S., 170 F. 402; 42 Law Ed. 185, p. 380.
Jones v. U. S., 137 U. S. 202, 34 Law Ed. 691; 162 F. 419; 137 U. S.

211, 162 F. 417; 27 F. 447, p. 21; 40; 163; 529.
Jordan v. State, 30 S. W. 445, p. 142.

Kahn v. U. S., 214 F. 54; 286; 616; 629; 204 F. 54.

Kalem v. U. S., 196 F. 888, p. 629.

Kambeitz v. U. S., 262 F. 378, p. 382.

Kansas v. Adams, 20 Kans. 311, p. 87.

Kaplam v. U. S., 229 F. 389, p. 301.

Karem v. U. S., 126 F. 250, p. 430.

Kasle v. U. S., 177 F. 147, p. 462.

Kaufman v. U. S., 202 F. 614, 212 F. 613, p. 616; 653.

Kavaloff v. U. S., 202, 475, p. 616.

Kaye v. U. S., 177 F. 147, p. 265.

Keane v. U. S., 272 F. 577, p. 365.

Keliher v. Mitchell, 250 F. 904, p. 249.

Kelley v. Lewelling, 274 F. 112, p. 507.

Kelley v. U. S., 258 F. 403; 250 F. 947, p. 54; 34.

Keller v. U. S., 23 U. S. 138, p. 632.

Keltenbach v. U. S., 202 F. 377, p. 54; 591.

Kenney v. Plymouth Rock et al, 213 F. 449, p. 130.

Kennedy v. U. S., 275 F. 183, p. 693.

Kerrch v. U. S., 171 F. 366, p. 615.

Ketchum v. U. S., 270 F. 416, p. 506.

Kie v. U. S., 27 F. 351, p. 560.

Kingman v. Western Mfg. Co., 170 U. S. 675, p. 98.

Kinser v. U. S., 231 F. 865, p. 636.

Kirby v. U. S., 174 U. S. 47, 43 Law Ed. 61, 174 U. S. 890, p. 382; 19.

Kirk v. U. S., 192 F. 273, p. 30.

Kirchmer v. U. S., 255 F. 301, p. 89.

Kirkwood v. U. S., 256 F. 825, p. 158.

Kissel v. Walker, 270 F. 492, p. 141.

Kittenbach v. U. S., 202 F. 379, p. 81.

Knoch v. White, 40 Sup. Ct. Rep., 566, p. 117.

Knoell v. U. S., 239 F. 16; 238 U. S. 78, p. 617.

Knote v. U. S., 94 U. S., 94 U. S. 157; 24 Law Ed. 442, p. 651.

Knowles v. U. S., 170 F. 410, p. 173.

Konka v. U. S., 166 F. 91, p. 172.

Korten v. Seney, 68 N. 128; 24, p. 207.

Krakowski v. U. S., 161 F. 885, p. 251.

Krause v. U. S., 267 F. 183, p. 241.

Krewzer v. U. S., 254 F. 35; 254 F. 34, p. 76; 120.

Krechman v. U. S., 41 Sup. Ct. Rep., 514, p. 333.

Kurtz v. Moffett, 115 U. S. 487, p. 378.

xx Table of Cases.

Lamar v. U. S., Sup. Ct. Oct. 1915, p. 353.

Lamborn v. U. S. Atty., 265 F. 944, p. 242.

Lang v. U. S., 133 F. 204, p. 22.

Latham et al, v. U. S. Circuit Court Appeals 5th Circuit, 226 F. p. 71 ;

144; 210 F. 159, p. 121; 226 F. 420, p. 109.
Lanton v. Steele, 152 U. S. 133, p. 457.
Laster Grain Co. v. U. S., 250 F. 826, p. 243.
Laughter v. U. S., 259 F. 94, p. 475.
Laurada v. U. S., 85 F. 760; p. 518.
Leach v. Carlisle, 267 F. 61, p. 199.
Ledbetteo v. U. S., 170 U. S. 606, p. 239.
Leders v. U. S., 210 F. 419, p. 616.
Leedock v. U. S., 224 F. 431, p. 103; 224 F. 431, p. 134.
Lee v. U. S., 250 F. 694, p. 630; 156 F. 948, p. 175.
Lee Lin v. U. S., 240 F. 408, p. 630; 250 F. 694, p. 654.
Le Grand v. U. S., 12 F. 577, p. 439.
Lehman v. U. S., 127 F. 41, p. 371.
Lemon v. Imperial, etc., 199 F. 927, p. 125.
Lemon v. U. S., 164 F. 953, p. 195.
LeMore v. U. S., 253 F. 887, p. 213; 253 F. 887, p. 86.
Len Lin Shen, 217 F. 317, p. 115.
Letterman v. U. S., 246 F. 940, p. 91.
Levy v. U. S., 271 F. 942, p. 242.
Lewis v. McCarthy, 274 F. 496, p. 506.
Lewis v. U. S., 146 U. S. 370, p. 126.
Lewis Pub. Co. v. Morgan, 229 U. S. 288, p. 181.
Lexington Mill & Elevator Co. v. U. S., 202 F. 615, p. 624.
Leyer v. U. S., 183 F. 102, p. 141.
Lobosco v. U. S., 183 F. 742, p. 412.
Lockhart v. U. S., 250 F. 610, p. 177.
Lincoln v. Power, 151 U. S. 442, p. 89.
Linn v. U. S., 234 F. 543, p. 64; 234 F. 543, p. 201.
Linn Bing Wey, v. U. S., 201 F. 379, p. 115.
Linnegen v. Morgan, 241 F. 645, p. 268.
Linton v. U. S., 223 F. 677, p. 739.
Lipman v. U. S., 219 F. 882, p. 368; 374.
Littenbach v. U. S., 202 F. 379, p. 93.
Lockwood v. U. S., 178 F. 437, p. 586.
Logan v. U. S., 123 F. 291; 260 F. 746, 363 Law Ed. 42; 144 U. S. 26; 144

U. S. 301, p. 21; 54; 144 U. S. 263, p. 301; 44, p. 506; 258; p. 364.
Lohman v. Co., 243 F. 517, p. 238; 120, 243 F. 517.
Loiseau v. State, 22 Southern Rep., 138, p. 209.
Lcuie v. U. S., 218 F. 36, p. 11.

Lovata v. State of New Mexico, 242 U. S. 199, p. 212.
Lovejoy v. U. S., 228 U. S. 171, p. 92.
Loving v. U. S., 91 F. 881, p. 122.
Low v. U. S., 169 F. 86, p. 79.
Lowden v. U. S., 149 F. 675; 149 F. 677, p. 76; 70.
Lueders v. U. S., 210 F. 421, p. 133.
Lumyam v. U. S., 193 F. 970, p. 67.
Lung v. U. S., 218 F. 817, p. 118.
Lyman v. U. S., 241 F. 945, p. 199; 241 F. 945, p. 64.
Lynch v. State, 193 S. W. 667, p. 76.

Mackin v. U. S., 117 U. S. 351; 177 U. S. 348; 117 U. S. 255, p. 136; 372.
MacKnight v. U. S., 263 F. 832; p. 63; 88.

Table of Cases. xxi

Magnetic Healing v. McAnulty, 137 U. S. 94; 47 Law Ed. 90, p. 202.

Magon v. U. S., 260 F. 81, p. 154.

Malvin v. U. S., 252 F. 449, p. 617.

Mamaux v. U. S., 264 F. 816, p. 43.

Manning v. U. S., 275 F. 29, p. 13.

Manuel v. U. S., 254 F. 272, p. 75.

"Marinna Flora" 11 Wheat. 1, p. 545.

Markham v. U. S., 160 U. S. 319; 40 Law Ed. 441; 30 Cyc. 1425, p. 285.

Marks v. U. S., 196 F. 476, p. 629.

Marrin v. U. S., 167 F. 951, p. 83.

Marshall v. Gordon, 243 U. S. 521, p. 34.

Martin Lumber Co. v. Johnson, 70 Ark., 219; 66 S. W. 925, p. 267.

Martin v. U. S., 271 F. 685; 168 F. 198; p. 296; 645.

Masses v. Patten, 244 F. 535; p. 411; 247.

Mason v. U. S., 244 U. S. 362, p. 18.

Mathews v. U. S., 192 F. 490, p. 154.

Matthews v. U. S., 32 Court of Claims, 123, p. 292.

Matter v. Lacey, 189 Okla., 4, p. 136.

Matters v. U. S., 261 F. 826, p. 399; 244 F. 736, p. 45.

Mattox v. U. S., 146 U. S. 140; 156 U. S. 240, p. 19; 133.

May v. U. S., 199 F. 42; 236 F. 495; 99 F. 54, p. 37; 110; 588.

Mays v. U. S., 199 F. 61, p. 122.

Maxwell v. Dow, 176 U. S. 536, p. 19.

McCallum v. U. S., 247 F. 27, p. 82; 599.

McCarthy v. U. S., 187 F. 117, p. 191.

McClendon v. U. S., 229 F. 523, p. 199.

McCoy v. U. S., 247 F. 861, p. 112.

McDonald v. U. S., 171 U.»S., 689; 63 F. 426; 87 F. 324, p. 212; 264;

734.
McDonald, et al, v. Pless et al, 206 F. 262; 241 F. 793; p. 54- 57; 8:8.
McElroy v. U. S., 164 U. S. 76, p. 54.
McGrath v. U. S., 275 F. 295, p. 308.
McGregor v. U. S., 134 U. S. 188, p. 327.
McGinnis v. U. S., 256 F. 621, p. 119; 366.
Mclnerney v. U. S., 143 F. 729, p. 295.
McKelvy v. U. S., 241 F. 80; p. 291; 365.
McKenna v. U. S., 127 F. 88, p. 429.
McKibbers v. Phila., 251 F. 577, p. 75.
McKnight v. U. S., 113 F. 452; 252 F. 687; 115 F. 981; 97 F. 208; 252 F.

687; 111 F. 735; 97 F. 210; 263 F. 832; 292 U. S. 614; 122 F. 926;

249 U. S. 614; p. 14; 63; 88; 94; 211; 235; 238; 366; 603.
McLean v. U. S., 253 F. 694, p. 626.
McNamara v. Henkel, U. S. Sup. Ct., 266 U. S. 520; U. S. Sup. Ct. Oct.

Term, 1912; p. 12; 547.
McNeil v. U. S., 246 F. 827, p. 57.
McNutt v. U. S., 267 F. 670, p. 82; 126.

McPherson v. Blacker, 146 U. S. 1; 36 Law Ed. 869, p. 647.
McShann v. U. S., 231 F. 923, p. 163.
Medrano v. State, 32 Tex. Crim. 214, p. 237.
Melanson v. U. S., 2-56 F. 783, p. 510.
Menefee v. U. S., 236 F. 826, p. 200.

Merchants' Bank v. The State Bank, 11 Wallace 647, p. 592.
Metropolitan Street Railway v. Davis, 112 F. 634, p. 127.
Meyer v. U. S., 218 F. 372, p. 144.
Miggins v. U. S., 272 F. 41, p. 6.
Milby v. U. S., 109 F. 638, p. 189.
Miller v. U. S., 174 F. 35; 242 F. 907, p. 195; 558.
Miner v. U. S., 244 F. 422, p. 95.
Minotto v. Bradley. 252 F. 600, p. 247.
Missouri Drug Co. v. Wyman, 129 F. 623, p. 202.

xxii Table of Cases.

Mitchell v. U. S., 196 F. 874; 229 F. 357; 229 P. 358, p. 88; 625; 654.

Moens v. U. S., 267 P. 317; 267 F. 318; p. 123; 127; 178.

Moffatt v. U. S., 232 F. 522, p. 200.

Montgomery v. U. S., 162 U. S. 400; 162 U. S. 410; 40 Law Ed. 1020, p.

160.
Montoya v. U. S., 262 F. 759, p. 432.
Moore v. Illinois, 14 Howard U. S. 20, p. 11.

Moore v. U. S., 150 U. S. 57; 160 U. S. 268; p. 133; 288; 381; 598.
Morgan v. Adams, 226 P. 719, p. 97.
Morgan v. Sylvester, 231 F. 886, p. 12.
Morgan v. U. S., 148 F. 189; 148 F. 190, p. 57; 385.
Morris v. U. S., 161 F. 672; 161 F. 672; 168 F. 682; 229 P. 516; 261 P.

175, p. 122; 282; 462; 577; 587.
Morse V. U. S., 255 F. 681; 174 F. 539, p. 92; 605.
Moses v. Patten, 244 F. 535, p. 182.
Moses v. Patton, 246 F. 24, p. 182.
Moses v. U. S., 221 F. 863, p. 199.
Mossem v. U. S., 266 F. 18, p. 101.

Motes v. U. S., 178 U. S. 471; 178 U. S. 458, p. 19; 438.
Mounday v. U. S., 225 P. 965; p. 8; 201.
Mudd v. Burrows, 91 U. S. 441, p. 89.
Mullan v. U. S., 212 U. S. 516, p. 120.
Mullens v. U. S., 106 P. 892, p. 93.
Murff v. State, 68 Tex. App. 66, p. 286.
Murphy v. Mass, 177 U. S. 155, p. 100.
Murray v. U. S., 247 F. 874, p. 231.

Naftzer v. U. S., 200 F. 497; 500, p. 219.

Nakano v. U. S., 262 F. 761, p. 235.

Neal v. Delaware, 103 U. S. 370, p. 438.

Neall v. U. S., 118 F. 699, p. 254.

Nee v. U. S., 267 F. 84, p. 88; 119.

Neff v. U. S., 165 F. 273, p. 344.

Nemcof v. U. S., 202 P. 911, p. 617.

New v. U. S., 245 P. 710, p. 201.

Newberry v. U. S., 41 Sup. Ct. Rep., 469, p. 442.

Newcomb v. Wood, 97 U. S. 581, p. 98.

New Orleans National Bank v. Merchant, 18 F. 841, p. 149.

New York v. Eno., 155 U. S. 89, p. 644.

New York Railroad Co. v. U. S., 212 U. S. 481, p. 138.

New York Supreme Court Justices v. U. S., 76 U. S. 282, p. 53.

Nichamin v. U. S., 263 F. 888, p. 541.

Nielto v. Clark, 18 Fed. Case, 236, p. 557.

Nininger v. Cowan, 101 F. 789, p. 133.

Norcross v. U. S., 209 F. 13, p. 29.

Norton v. U. S., 188 F. 256; 205 F. 593, p. 602.

O'Conner v. Patter, 276 F. 32, p. 8.

O'D'ell Mfg. Co. v. Tibbetts, 212 F. 652, p. 74.

Oesting v. U. S., 234 F. 304, p. 201.

O'Hare v. U. S., 253 F. 538, p. 182.

Ohio v. Brooks, 173 U. S. 299, 43 Law Ed. 699, p. 647.

Olson v. U. S., 133 F. 852, p. 57.

Oliver v. U. S., 230 F. 971, p. 22.

One v. U. S., 274 F. 99, p. 453.

One Pearl Chains v. U. S., 123 F. 371, p. 658.

Table of Cases. xxiii

O'Neil v. Vermont, 144 U. S. 574.

Oppenheim v. U. S., 241 F. 625, p. 104; 241 F. 625, p. 154, p. 599.

Orear v U. S., 261 F. 259, p. 441.

Orourke, 251 F. 768, p. 34; 251 F. 768, p. 304.

Orozco v. U. S., 237 F. 1008, p. 423.

Orth v. U. S., 252 F. 566, p. 304.

Ossendorf v. U. S., 272 F. 257, p. 228.

Ozillo v. U. S., 268 F. 242, p. 95.

Parke Davis v. U. S., 255 F. 933, p. 625.

Paulsen v. U. S., 199 F. 423, p. 639.

Papas v. U. S„ 241 F. 665, p. 641.

Pablo v. U. S., 242 F. 905, p. 652.

Packas v. U. S., 240 F. 350, p. 164.

Parish v. U. S., 247 F. 40, p. 178.

Parker v. U. S., 203 F. 950, p. 193.

Packer v. U. S., 106 F. 906, p. 197.

Patnam v. Morgan, 172 F. 450, p. 202.

Palliser v. U. S., 136 U. S. 267, p. 217; 268.

Pappeno v. U. S., 252 F. 55, p. 234.

Partan v. U. S., 261 F. 515, p. 241.

Patterson v. U. S., 202 F. 208, p. 280 & 708; 181 F. 970, p. 280.

Parkinson v. U. S., 121 U. S. 281, p. 9.

Parpura v. U. S., 262 F. 473, p. 65.

Parquin v. U. S., 251 F. 579, p. 75; 88.

Paris v. U. S., 260 F. 529, p. 88.

Parish v. U. S., 100 U. S. 500, p. 112.

Pakas v. U. S., 240 F. 350, p. 112.

Pacey v. McKinney, 125 F. 679, p. 127.

Palmyra, 25 U. S.. 12 Wheat. 11, p. 419.

Pederson v. U. S., 271 F. 187, p. 558; 7.

Pearce v. U. S., 192 F. 561, p. 598.

Peters v. U. S., 94 F. 127, p. 603.

Pettibone v. U. S., 148 U. S. 197, p. 647; 365; 372.

Perara v. U. S., 221 F. 213, p. 163; 235 F. 515, p. 86.

People v. Noelke, 94 N. Y. 137, p. 207.

Peterson v. U. S., 255 F. 433, p. 241.

Perkins v. U. S., 228 F. 408, p. 245; 92.

Pereles v. Weil, 157 F. 419, p. 46.

Peterson v. U. S., 246 F. 118, p. 95.

Penn v. Fauger, 231 F. 851, p. 127.

Peterson v. U. S., 213 F. 920, p. 142.

Pendleton v. U. S., 216 U. S. 305.

Penny v. Walker, 64 Me. 430, p. 156.

Phillips v. U. S., 201 F. 260, p. 606; 264 F. 657, p. 57.

Phelan v. U. S., 249 F. 43, p. 75.

Pierriero v. U. S., 271 F. 912, p. 509.

Pinasco v. U. S., 262 F. 400, p. 573.

Pilcher v. U. S., 113 F. 248, p. 578.

Pierce v. U. S., 40 Sup. Ct. Rep., 205, p. 182; 257 F. 514, p. 101.

Pierre v. U. S., 275 F. 352, p. 200.

Potter v. U. S., 155 U. S. 444, p. 709; 592.

Pollard v. U. S., 261 F. 336; 235.

Post v. Murray, 230 F. 773, p. 210.

Powers v. U. S., 223 U. S. 303, p. 17.

Pointer v. U. S., 151 U. S. 396, p. 56.

Pocahontas v. U. S., 218 F. 782, p. 133.

Pounds v. U. S., 265 F. 242, p. 462.

xxiv Table of Cases.

Poolen v. U. S., 127 F. 509, p. 359.

Profitt v. U. S., 264 F. 299, p. 509.

Prettyman v. U. S., 180 F. 30, p. 598.

Prdjun v. U. S., 237 F. 799, p. 636.

Price v. McGuinness, 269 F. 977, p. 655.

Price v. U. S., 165 U. S. 308, p. 170; 237; 218 F. 149, p. 154; 57; 86.

Price v. Zerbert, 268 F. 72, p. 95.

Preyer v. U. S., 260 F. 157, p. 275.

Prolen v. U. S., 127 F. 509, p. 57.

Putnam v. U. S., 162 U. S., p. 246.

Quinn v. Diamond, 72 F. 993, p. 576.

R.
Radin v. U. S., 189 F. 568, p. 374; 616.
Raganshky v. U. S., 253 F. 643, p. 200.
Rakes v. U. S., 212 U. S., 55, p. 439.
Randall v. State, 42 Tex. 585, p. 208.
Rau v. U. S., 260 F. 131, p. 570.
Ray v. U. S., 265 F. 257, p. 118.
Reagan v. U. S., 202 F. 488, p. 26.

Reg v. Wood, 5 El. and Bl. 49, 85 E. C. L. 49, p. 169.
Reed v. Cushman, 251 F. 872, p. 234.
Reed v. Thurmond, 269 F. 252, p. 583.
Reed v. U. S., 252 F. 21, p. 234.
Reeder v. U. S., 252 F. 21; 262 F. 36, p. 353; 411.
Reichman v. Harris, 252 F. 371; p. 129.
Reid v. Colorado, 187 U. S. 137, p. 459.
Reilley v. U. S., 106 F. 896, p. 363.
Reingar v. U. S., 172 F. 646; 97 C. C. C. 172; 172 F. 646, Sec. 17 Post.

p. 39; 55.
Rex v. Baines, 6 Mod. 192, p. 229; 312.
Reynolds v. U. S., 98 U. S. 145, p. 97; 167.
Rhodes v. U. S., 79 F. 740, p. 359.
Rhuberg v. U. S., 225 F. 865, p. 181.
Rice v. Ames, 180 U. S. 371, p. 28.
Rich v. U. S., 271 F. 566, p. 238.
Richards v. U. S., 175 F. 911, p. 104; 372.
Richardson v. U. S., 181 F. 1, p. 118; 596.
Riggins v. U. S., 199 U. S. 546; 50 Law Ed. 303, p. 437.
Rimmerman v. U. S., 186 F. 387, p. 189.
Rinker v. U. S., 151 F. 755, p. 122; 177.
Ripper v. U. S., 178 F. 24, p. 584.
Rise v. U. S., 144 F. 374, p. 112.
Rizzo v. U. S., 275 F. 51, p. 636.
Roberts v. Kendrick, 211 F. 970, p. 143.
Roberts v. Skoelfield, 20 Fed. Case No. 11917, p. 547.
Robertson v. Baldwin, 165 U. S., 281, p. 19.

Robertson v. U. S., 248 F. 874; 126 F. 897; 248 F. 873; p. 95; 248; 535.
Robilia v. State, 259 F. 101, p. 76.
Robins v. U. S., 229 F. 126, p. 143; 199.
Robbins v. U. S., 229 F. 987, p. 178.
Rogers v. Desporte, 268 F. 83; 268 F. 308, p. 95.
Rooney v. U. S., 203 F. 928, p. 653.
Rose v. U. S., 227 F. 357, p. 200.
Rosen v. U. S., 237 F. 810; 245 U. S. 467; 271 F. 651; 161 U. S. 20; 40

Law Ed. 606; p. 89; 168; 171; 271; 651.
Rosencrans v. U. S., 165 U. S. 257, p. 163.

Table of Cases. xxv

Rosenburg v. Pacific Express Co. U. S., Sup. Ct, Oct. Term, Apr., 1915;

p. 575.
Rosenfield v. U. S., 202 F. 469, p. 579.
Rowan v. Randolph, 268 F. 529, p. 102.
Rowe v. Boyle, 268 F. 809; p. 48; 199.
Rumble v. U. S., 143 F. 772, p. 189.
Rumely v. McCarthy, 256 F. 565, p. 48.
Rupert v. U. S., 181 F. 87; 181 F. 188; p. 457.
Russell v. U. S., 271 F. 684, p. 353.
Rutherford v. U. S., 258 F. 855, p. 134.
Ryan v. U. S., 216 F. 13; 216 F. 213, p. 373; 444.

Sandberg v. U. S., 257 F. 643, p. 410; 257 F. 643, p. 182.

Salas v. U. S., 234 F. 842, p. 365.

Sales v. U. S., 258 F. 596, p. 177.

Salla v. U. S., 104 F. 544, p. 155.

Samuels v. U. S., 232 F. 536, p. 200.

Sandels v. U. S., 213 F. 569, p. 191.

Sanden v. Morgan, 225 F. 266, p. 216.

Sanford v. U. S., 249 F. 583, p. 506.

Savage v. Scoville, 171 F. 566, p. 624.

Savage v. U. S., 213 F. 31, p. 119; 270 F. 15, p. 123.

Savins v. Petitioner, 131 U. S., 267, p. 300.

Schaefer v. U. S., 40 Sup. Ct. Rep., 259, p. 241.

Schatz v. Winton Motor Carriage Co., 197 F. 777, p. 69.

Schell v. U. S., 261 F. 593, p. 382.

Schick v. U. S., 195 U. S. 65, p. 80.

Scheinberg v. U. S., 213 F. 758, p. 193.

Schmidt v. U. S„ 133 F. 257, p. 403; 133 F. 257, p. 282.

Schraubstadter v. U. S., 199 F. 568, p. 621.

Schulze v. U. S., 259 F. 189, p. 182.

Schwartzberg v. U. S., 241 F. 348, p. 52; 241 F. 348; 104, p. 104.

Schwartz v. U. S., 217 F. 866, p. 32.

Scoggins v. U. S., 255 F. 825, p. 246.

Scovic v. U. S., 214 F. U. S. 871, p. 32.

Scott V. U. S., 165 F. 172 p. 368, 172 U. S. 343, p. 168; 130 F. 429, p. 604.

Seebach v. U. S., 262 F. 885, p. 241.

Selbeck v. Plattsentsche, 124 F. 18, p. 92.

Sears v. U. S., 264 F. 257, p. 306; 264 F. 257, p. 88; 172 U. S. 343; 43

Law Ed. 471, p. 161.
Searway v. U. S., 184 F. 716, p. 86.
Seidenbender v. Charles, 4 Serg. and Rawle, 151 [8 Am. Dec. 682] p.

209.
Seven Cases v. U. S., Sup. Ct., Oct. Term, 1915, p. 626.
Shaar v. U. S., 269 F. 26, p. 665.
Shaffer v. U. S., 255 F. 886, p. 181.
Sharfsin v. U. S., 265 F. 916, p. 618.
Sharon v. Hill, 24 F. 726, p. 300.
Sharp v. U. S., 138 F. 878, p. 333.

Shaw v. U. S., 165 F. 174, p. 162; 18 F. 348, p. 163; 180 F. 348, p. 63.
Shawnee v. U. S., 249 F. 583, p. 506.
Shea v. U. S., 251 F. 445, 236 F. 97, p. 88; 82.
Shelly v. U. S., 198 F. 88, p. 629.
Shepherd v. U. S., 160 F. 584, p. 171; 236 F. 73, p. 509; 160 F. 584, p.

176.
Sheriden v. U. S., 236 F. 305, p. 599.

Sheriff v. Dailey, 221 U. S-, 280, p. 548, Sup. Ct., May 15, 1911, p. 128.
Sherman v. U. S., 268 F. 516, p. 660.

xxvi Table of Cases.

Short v. U. S., 211 F. 248, p. 145.

Showalter v. U. S., 260 F. 719, p. 599.

Sibray v. U. S., 227 F. 1, p. 106.

Sierra v. U. S., 233 F. 37, p. 659.

Silsby v. Foote, 14 Howard 218; 14 Law Ed. 394, p. 53.

Silverthorne Lumber Co. v. U. S., 25 U. S., 385, p. 740, Sup. Ct. Rep., 182,

p. 64.
Simmons v. State, 61 Miss. 243, p. 60.

Simmons v. U. S., 142 U. S. 148, p. 92; 142 U. S. 148, p. 22.
Simpson v. U. S., 245 F. 278, p. 636; 229 F. 940, p. 13; 229 F. 940, p.

600; 241 F. 841, p. 626.
Sims v. U. S., 268 F. 234, p. 75.
Sinclair v. U. S., 265 F. 991, p. 534.
Siniscolchia v. Thomas, 195 F. 701, p. 116.
Skuy v. U. S., 261 F. 316, p. 76.

Slaughter House Case, 10 Wallace 36; 21 Law Ed. 394, p. 432.
Smith v. Crichton, 33 Md. 103, p. 90.
Smith v. State, 68 Mo. 170, p. 209.
Smith v. U. S., 157 F. 721, p. 434; 157 F. 722, p. 92; 231 F. 25, p. 659;

208 F. 133, p. 189; 267 F. 665, p. 199.
Sneierson v. U. S., 264 F. 268, p. 306; 264 F. 275, p. 122; 264 F. 268,

p. 44.
Snow v. U. S., 18 Wall. 317, p. 561.
Soloman v. State, 62 Ala., 83, p. 209.
Sorenson v. U. S., 143 F. 820, p. 152; 168 F. 785, p. 63; 143 F 820, p.

152.
Sotello v. U. S., 256 F. 721, p. 154.
Sparf v. U. S., 156 U. S. 51; 39 Law Ed. 343, p. 104.
Sparks v. U. S., 241 F. 778, p. 76; 241 F. 777, p. 201.
Spear v. U. S., 228 F. 486, p. 154; 246 F. 250, p. 127; 249 F. 571, p. 201:

246 F. 250, p. 201.
Spur v. U. S., 87 F. 708, p. 92; 174 U. S. 728, p. 595.
State v. Hunter, 181 Missouri 316; 80 S. W. 915, p. 286.
State v. Render, 96 Neb. 548, p. 60.
State v. Lapage, 57 N. H., 245, p. 87.
State v. Miller, 42 La. 1186, p. 60.
State v. Martinson, 41 Sup. Ct. Rep., 425, p. 509.
State v. Nichols, 50 Louisiana Ann 699; 27, R. 283, p. 9, p. 158.
State v. Palmer, U. S. Sup. Ct., June, 1920, 40 Sup. Ct. Rep., 486, p. 507.
State v. Siddall, 68 Atl. 634; 103 M. 144, p. 133.
State v. Stotts, 5 Black, 460, p. 312.
State v. Winner, 17 Kansas, 298, p. 264.
State v. Zarafourtis, 150 F. 97, p. 50.
Stayton v. U. S., 213 F. 224, p. 176.
Stager v. U. S., 233 F. 510, p. 367; 233 F. 510, p. 664.
Standard Fashion Magazine Co., 254 F. 493, p. 140.
Standard Magazine Co. 254 F. 493, p. 235.
Standard Oil Co. v. U. S., 221 U. S. 1, p. 139.
Stanley v. U. S., 195 F. 896, p. 264.
Stan v. U. S., 153 U. S., 616, p. 93.
Stanton v. U. S., 88 F. 253, p. 343.
Starr v. U. S., 153 U. S. 265, p. 21.
State v. Bloor, 20 Mont. 574, p. 295.
State v. Crowson, 98 N. C. 595, p. 60.
State v. Fidmont, 35 Iowa, 545, p. 60.
State v. Foster, 22 R. I. 163, p. 236.
State v. Goodenow, 65 Me., p. 237.
State v. Herliky, 66 Atl. 643; 102 Me., p. 132.
State v. Holland, U. S. Sup. Ct., April 1920, p. 456.
Steigman v. U. S., 220 F. 63, p. 616.

Table of Cases. xxvii

Steiner Case, 195 F. 300, p. 31.

Stetson v. U. S., 257 F. 689, p. 510.

Stewart v. Arthur, 267 F. 184, p. 242.

Stewart v. U. S., 236 F. 838, p. 35.

Stewart v. Wyoming Cattle Co., 128 U. S. 383, p. 126.

Stevens v. McClaughry, 207 F. 181, p. 100.

Stockton v. U. S., 205 F. 462, p. 191.

Stokes v. U. S., 157 U. S. 187, p. 197; 372.

Stroughton v. Diniick, 3 Blatchf. 556, p. 424.

Streepos v. U. S., 160 U. S. 128, p. 197.

Stout v. U. S., 227 F. 799, p. 76; 599.

Strauder v. West Virginia, 100 U. S. 303, p. 438.

Stretton v. Rudy, 176 F. 721, p. 105.

Streton v. Shaheen, 176 F. 735, p. 104.

Stroud v. U. S., 251 U. S. 15; 40 Sup. Ct. Rep., 50, p. 12.

St. Clair v. U. S., 154 U. S. 134, 38 Law Ed. 936, p., 533.

Stubbs v. U. S., 249 F. 571, p. 201.

Stuart v. U. S., 119 F 89, p. 89.

Sugar v. U. S., 252 F. 79, p. 234; 252 F. 79, p. 182.

Susquehana v. Cassidy, 247 F. 137, p. 126.

Swearington v. U. S., 161 U. S. 446, 40 Law Ed. 756, p. 172.

Swepston v. U. S., 251 F. 205, p. 35.

Sylvia v. U. S., 264 F. 593, p. 82; 264 F. 593, p. 89.

Sugar v. U. S., 252 F. 79, p. 234; 252 F. 79, p. 182.

Suslak v. U. S., 213 F. 913, p. 142; 213 F. 913, p. 641.

Talliaferro v. U. S., 213 F. 25, p. 88.

Tat v. U. S., 260 F. 104, p. 117.

Taylor v. U. S., 45 F. 531; 89 F. 954; 244 F. 321, p. 136; 364; 526.

Tennessee v. Davis, 100 U. S., 257, p. 89.

Terre Haute v. Stuble, 109 U. S. 381, p. 133.

Teregno v. Shattiack, 265 F. 797, p. 89.

Term v. Davis, 100 U. S. 257, p. 236.

Terry v. U. S., 120 F. 486, p. 19.

Thaler v. U. S., 261 F. 746, p. 235.

Thatcher v. U. S., 212 F. 805, p. 121.

The "Antelope" 10 Wheat. 66, p. 545.

The "Chapman" 4 Saw. 501, p. 422.

The "Carondelet" 37 F. 799, p. 422.

The "Daniel Ball" 10 Wall 557 p. 459.

The "Itata" 46 F. 646, p. 422.

The "Mary Ann" 16 Fed. Case No. 9194, p. 516.

Thomas v. Loney, 134 U. S. 377, Law Ed. 949, p. 646.

Thompkins v. M. K. & T., 211 F. 391, p. 141.

Thompson v. Duehay, 217 F. 484.

Thompson v. State, 92 Ga. 448, p. 71

Thompson v. U. S., 159 F. 801; 202 F. 401; 256 F. 616, p. 168; 382;

607.
Thompson v. Utah, 170 U. S. 349; 180 U. S. 343, p. 19- 79.
Tiader v. U. S., 260 F. 923, p. 510.

Tillingast v. Richards, 233 F. 710; 225 F. 226, p. 365; 588.
Tingle v. U. S., 87 F. 320, p. 197.
Tjosevig v. Boyle, 258 F. 813, p. 199.

Todd v. U. S., 158 U. S. 278; 39 Law Ed. 982; 221 F. 205; p. 192; 302.
Toledo Newspaper Co. v. U. S., 237 F. 986, p. 35.
Trafton v. U. S., 147 F. 513, p. 98.
Trent v. U. S., 228 F. 648, p. 210; 238.
Tubbs v. U. S., 94 F. 356, p. 171.

xxviii Table of Cases.

Tucker v. U. S., 196 F. 260; 212 P. 569; 224 Fed. 833, p. 120; 132; 201.

Tucker v. Williamson, 229 F. 201, p. 510.

Tugendhaft v. U. S., 263 F. 562, p. 617.

Turner v. U. S., 238 F. 194; 272 F. 112; p. 35; 533.

Twining v. U. S., 141 F. 41, p. 604.

Tyomies v. U. S., 211 F. 389, p. 174.

Tyomies Publishing Co. v. U. S., 211 F. 386, p. 170.

U. S. v. Abrams, 230 F. 313; 18 F. 823, p. 5; 64; 269; 665.

U. S. v. Aczel, et al, 219 F. 917, p. 432.

U. S. v. Adams Express Co., 229 U. S. 381; 119 F. 240, p. 138; 574.

U. S. v. Adler, 49 F. 733, p. 359.

U. S. v. Ah Kung, 243 F. 762, p. 509.

U. S. v. Ah Won, 97 F. 494, p. 343.

U. S. v. Albert, 45 F. 552, p. 250; 348.

U. S. v. Allen, 38 F. 736; 47 F. 696, p. 604; 575.

U. S. v. Alexis Club, 98 F. 725, p. 571.

IT. S. v. Allis, 73 F. 165, p. 603.

U. S. v. Almedia, 24 Fed. Case No. 144; 33, p. 550.

U. S. v. Amann, 24 Fed. Case, No. 14438, p. 580.

U S. v. Ambrose, 2 F. 764, p. 355.

U. S. v. American, 275 F. 939, p. 138.

U. S. v. American Laboratories, 222 F. 104; p. 201; 627.

U. S. v. American Tobacco Co., 221 U. S. 106; 177 F. 774, p. 106; 109;

140.
U. S. v. Ames, 95 F. 453, p. 207.
U. S. v. Ammerman, 176 F. 636, p. 282.
U. S. v. Anderson, 231 F. 546; 68 F. 696, p. 117; 188.
U. S. v. Anthony, 24 Fed. Case No. 14459, p. 236.
U. S. v. Arjona, 120 U. S. 479, p. 256.
U. S. v. Armstrong, 59 F. 568, p. 301.
U. S. v. Ashton, 24 Fed. Case No. 14470, p. 549.
U. S. v. Atlantic Journal Co. 185 F. 656, p. 346; 373.
U S. v. Ault, 263 F. 800, p. 365.
U. S. v. Auto, 279 F. 891, p. 506.
IT. S. v. Aylward, 24 Fed Case No. 14484, p. 268.
U. S. v. Brace, 144 F. 869; 149 F. 874; p. 287; 371.
U. S. v. Bradford, 53 F. 542; 148 F. 413; p. 351; 371.
U. S. v. Brand, 229 F. 847, p. 635.
IT. S. v. Braun, 158 F. 456, p. 124.
IT. S. v. Brasley, 268 F. 59, p. 6.
U. S. v. Bray, 113 F. 1009, p. 576.
IT. S. v. Breeding, 207 F. 645, p. 36.
U. S. v. Breese, 73 F. 765; 172 F. 765, p. 37; 38.
IT. S. v. Bressi, 208 F. 369, p. 404.
U. S. v. Bridgeman, 140 F. 577, p. 373.
U. S. v. Brierback, 245 F. 204, p. 237.

U. S. v. Briton, 108 U. S. 192; 170 U. S. 655; p. 236; 372; 603.
IT. S. v. Brockley, 266 F. 1001, p. 506.
U. S. v. Brod, 176 F. 165, p. 59.
U. S. v. Broughton, 213 F. 345, p. 523.
IT S. v. Bronn, 119 F. 482; 224 F. 135; 224 F. 135; 126 F. 766; 43

F. 135; 242 F. 983; 24 Fed. Case, 14656, p. 184; 234; 392; 471;

512; 630; 784.
IT S. v. Buchanan, 255 F. 915, p. 51.
IT S. v. Buckingham, 261 F. 418, p. 578.
IT. S. v. Buntin, 10 F. 30, p. 440.
U. S. v. Bunting, 82 F. 883, p. 342; 344.

Table of Cases. xxix

U. S. v. Burdick. 211 F. 493; p. 17.
U. S. v. Burke, 218 F. 83, p. 364; 373.
U. S. v. Burck, 226 F. 974, p. 635.
U. S. v. Burleson, 41 Sup. Ct. Rep., 352, p. 202.
U. S. v. Burley, 14 Blatch. U. S. 91, p. 401.
U. S. v. Burnell, 75 F. 824, p. 186.
U. S. v. Burns, 270 F. 601, p. 506.

U. S. v. Burr, 4 Cranch. 469; 1 Burr's Trial 14; 2nd Burr's Trial 402;
. Fed. Case 252; p. 408.

U. S. v. Burton, 131 F. 552; 202 U. S. 344, p. 327.
U. S. v. Butler, 1 Hughes, 457, p. 438.
U. S. v. Bush, 269 F. 455, p. 5.
U. S. v. Byrne, 44 F. 188, p. 163.
U. S. v. Baker, 5 Blatch. 6; 24 Fed. Case, 962; 247 F. 124- 243 F. 746;

p. 56; 234; 365; 741.
U. S. v. Barrels of Spirits, 2 Abbott 305, p. 577.
U. S. v. Bamaby, 51 F. 20, p. 536; 542.
U. S. v. Bayer, 4 Dillon, 407, Fed. Case No. 14547; p. 615.
U. S. v. Barton, 10 F. 874, p. 604.
U. S. v. Bartlett, 106 F. 884, p. 605.
U. S. v. Bachman, 246 F. 1010, p. 94; 199.
U. S. v. Balte, 154 F. 540, p. 530.
U. S. v. Barnett, 111 F. 369, p. 251; 254.

U. S. v. Barney, 3 Am. Law, 128; 5 Blatchf. 294, p. 156; 346.
U. S. v. Bayard, 16 F. 376, p. 57.
U. S. v. Ballard, 3 McClean, U. S. 469, 2nd. Vol. 5 Fed. Stat. 358; US

F. 757; p. 136; 350.
U. S. v. Barnon, 221 F. 140; U. S. Sup. Ct., Oct., 1915, p. 353.
U. S. v. Barnhardt, 33 F. 459; 22 F. 290; p. 11; 342.
U. S. v. Barrett, 65 F. 62; 187 F. 378; p. 31; 363.
U. S. v. Bailey, 9 Peters 238, 47 F. 117; p. 213; 281.
U. S. v. Babcock, 4 McLean, 113, p. 278.
U. S. v. Barber, 140 U. S. 177, p. 372.
U. S. v. Ball, 163 U S. 662, p. 4.
U. S. v. Bardick, 211 F. 493, p. 17.
"U. S. v. Baer, 6 F. 42, p. 277.
U S. v. Barton, 10 F. 873, p. 281.
U. S. v. Bathgart, U. S. Sup. Ct., Mar., 1918, p. 432.
U. S. v. Baumert, 179 F. 735, p. 45.
U. S. v. Bell, 81 F. 830; p. 17; 59.
U. S. v. Beebe, 149 F. 618, p. 261.
U. S. v. Bejandio, 1 Woods 294, p. 269.
U. S. v. Berkhardt, 31 F. 141, p. 285.
U. S. v. Bennett, 16 Blatch. 342; 3 Hughes 466, 24 Fed. Case 14574:

p. 174; 547.
U. S. v. Beltaline, 1st. Woods 654, p. 664.
U. S. v. Benedict, 165 F. 221, p. 169; 172.
U. S. v. Bernstein, 267 F. 295, p. 4.
U. S. v. Bickford, 4 Blatch, 337, p. 347.
U. S. v. Bicksler, 1 Mackey, 341, p. 267; 271.
U. S. V. Biggs, 157 F. 264; 211 U. S. 597, p. 198; 372.
U. S. v. Binder, 253 F. 978, p. 182.
U. S. v. Birdsall, 195 F. 980; 206 F. 818, p. 307.
U. S. v. Bettinger (Mo.), 15 Am. Law U. S. 49; 24 Fed. Case No. 1959S,

p. 299.
U. S. v. Betty, 155 F. 938; 208 U. S. 393, 52 Law Ed. 504; 208 U. S.

150, p. 632.
U. S. v. Bixby, 10 Bis 208, p. 320.
U S. v. Blaisdell, 3 Bennett 32, p. 111.
U. S. v. Blab, 99 U. S. 228, p. 571.

xxx Table of Cases.

U. S. v. Blakeman, 251 F. 306, p. 58; 182.

U. S. v. Blenholm. 208 F. 492, p. 175.

U. S. v. Block, 262 F. 205, p. 11.

U. S. v. Bopp. 232 F. 177; 237 F. 793; 230 F. 723; 232 F. 177; 237 F.

283; p. 45; 232; 423; 366.
U. S. v. Boekman, 176 F. 382, p. 622.
U. S. v. Boggs, 31 F. 337, p. 251.
U. S. v. Bolles, 209 F. 682, p. 40.
U. S. v. Booth, 148 F. 112, p. 328.
U. S. v. Borden, 24 Fed. Case 1202, p. 551.
U. S. v. Boren, 144 F. 801, p. 287.
U. S. v. Borkowski, 268 F. 408, p. 508.
U. S. v. Bountin, 251 F. 313, p. 182.
U. S. v. Boyer, 4 Dill. 407, 85 F. 425; p. 331; 368.
U. S. v. Boyle, 40 F. 664, p. 187.
U. S. v. Boumert, 179 F. 735, p. 140.
U. S. v. Bowman, 5 Pac. Rep., 333, p. 154.
U. S. v. Bozeman, 236 F. 432, 235 U. S. 696, p. 641.
U. S. v. Bozer, 4 Dill. 407; 5 F. 681; 7 F. 715; p. 615.
U. S. v. Box, 190 F. 731, p. 210.
U. S. v. Bryant, 257 F. 378; 245 F. 682, p. 18; 113.
U. S. v. Cadwaller, 59 F. 679, p. 9.
U. S. v. Carney, 228 F. 168, p. 510.
U. S. v. Caminata, 194 F. 903, p. 629.
U. S. v. Campbell, 16 F. 235; 179 F. 762, p. 48; 150.
U. S. v. Cardish, 14 F. 640, p. 541.
U. S. v. Carlin, 259 F. 904; 259, 904, p. 365; 365.
U. S. v. Carll, 105 U. S. 611, p. 262.
U. S. v. Carlovitz, 80 F. 852, p. 216.
U. S. v. Carpenter, 151 F. 216, p. 99.
U. S. v. Carter, 84 F. 622, p. 527.
U. S. v. Case, 49 F. 270; 49 F. 270, p. 216; 215.
U. S. v. Case, 8 Blatchf. 250, p. 28.
U. S. v. Cases of Molasses, 174 F. 325, p. 622.
U. S. v. Cases of Syrup, 172 F. 781, p. 623.
U. S. v. Cases of Tomato Catsup, 166 F.; 773, p. 623.
U. S. v. Casey, 247 F. 362, p. 57; 411.
U S. v. Cassey, 247 F. 362, p. 234.
U. S. v. Cassidy, 67 F. 698, p. 368; 353; 156.
U. S. v. Cathcart, 1 Bond, 556; 25 Fed. Case, 344, p. 408.
U. S. v. Cautinie, 212 F. 925, p. 166.
U. S. v. Chakraberty, 244 F. 287, p. 243.
U. S. v. Charter, 227 F. 331; 227 F. 331, p. 58; 510.
U. S. v. Chase, 135 U. S. 117, p. 177.
U. S. v. Chevallier, 107 F. 434, p. 573.
U. S. v. Chennault, 230 F. 942; p. 56; 43; 248.
U. S. v. Chevrolet, 267 F. 1021, p. 506.
U. S. v. Christopherson, 261 F. 225, p. 360.
U. S. v. Ching Fong, 192 F. 485, p. 115.
U. S. v. Clair, 2 F. 55, p. 570,
U. S. v. Clark, 1 Gall. 497; 46 F. 633; 164 F. 75; 43 F. 574, p. 560; 369;

177; 28.
U. S. v. Clarion, 272 F. 985, p. 13.
IT. S. v. Claypool, 14 F. 127, p. 156.
U. S. v. Clifford, 104 F. 296, p. 171.
U. S. v. Cobban, 134 F. 290, p. 287.
U. S. v. Coffin, 1 Sumn. 394, p. 551.
I . S. v. Coggin, 3 F. 492, p. 355.

U S. v. Cohen Grocery Co., 41 Supt. Ct. 300, April, 1921, p. 643.
U. S. v. Cohen, 264 F. 218, p. 245.

Table of Cases. xxxi

U. S. v. Cohn, 268 F. 423, p. 508.

U. S. v. Colby, 265 F. 998, p. 4.

U. S. v. Cole, 153 F. 801; 5 McLean, 513; 25 Fed. Case No. 14832, p. 522.

U. S. v. Colgate, 253 F. 522, p., 140, 250 U. S. 300, p. 141.

U. S. v. Collins, 264 F. 145; 380; 250 F. 869, p. 475; 476; 13.

U. S. v. Company, 242 F. 536, p. 454.

U. S. v. Comstock, 161 F. 644, p. 612.

U. S. v. Comyns, U. S. Supt. Ct., Jan., 1919, p. 234; 199.

U. S. v. Conners, 111 F. 732; 111 F. 734, p. 251; 260.

U. S. v. Conrad, 59 F. 458, p. 212.

U. S. v. Coombs, 12 Peters, 72; 76, p. 553; 150.

U. S. v. Coppersmith, 4 F. 198, p. 224.

U. S. v. Corbett, 162 F. 687, p. 605.

U S. v. Corbet, 215 U. S. 233, p. 602.

U S. v. Corbin, 11 F. 238, p. 247.

U. S. v. Corporation, 1, 125 F. 94, p. 123.

U. S. v. Corrie Brun Co. Cases, 686; 25 Fed. Case No. 14869, p. 512; 658.

U. S. v. Cota, 17 F. 734, p. 576.

U. S. v. Cover, 46 F. 284, p. 292.

U. S. v. Cowell, 243 F. 730, p. 140.

U. S. v. Craig, 266 F. 230, p. 34.

U. S. v. Crates, 208 F. 950, p. 625.

U. S. v. Crawford, 25 Fed. Case No. 14890, p. 549.

U S. v. Crecilius, 34 F. 30; 34 F. 32, p. 289; 223.

U. S. v. Crndol, 233 F. 331, p. 281.

U. S. v. Crossen, 264 F. 459, p. 508.

U. S. v. Cruickshank, 92 U. S. 542; 557; 23 Law Ed. 588, p. 431; 428; 19.

U. S. v. Cuddy, 39 F. 696, p. 285.

U. S. v. Curley, 122 F. 738, p. 371.

U. S. v. Curry, 206 F. 322, p. 176.

U. S. v. Curtain, 43 F. 433, p. 351.

U. S. v. Curtis, 12 F. 824; 107 U. S. 671; 229 F. 288, p. 324; 279; 10.

U. S. v. Cushman, 1 Law 414, p. 578.

U. S. v. Cutler, 1 Curt. 501; 25 Fed. Case No. 14910, p. 546.

U S. v. Dale, 230 F. 759, p. 200.

U. S. v. Darcy, 243 F. 739, p. 509.

U. S. v. Darnaud, 3 Wall. Jr. 143, p. 512.

U. S. v. Daubner, 17 F. 793, p. 358.

U. S. v. Davenport, 266 F. 425, p. 52.

U. S. v. Davidson, 244 F. 523, p. 178; 188.

U. S. v. Davin, 189 F. 244, p. 642.

U. S. v. Davis, 103 F. 458; 37 F. 468; 38 F. 326; 103 F. 457; U. S.

Supt. Ct., April, 1917, p. 22; 34; 187; 320; 349; 571.
U. S. v. Dean, 230 F. 957, p. 117.
U. S. v. Deaver, 14 F. 595, p. 314.
U. S. v. Debs, 63 F. 436, p. 373.
U. S. v. DeBolt, 253 F. 78, p. 143.
U. S. v. DeGroa, 30 F. 764, p. 294.
U. S. v. Delaney, 55 F. 475, p. 163.
U. S. v. Dembroski, 252 F. 894, p. 58.
U. S. v. Dempsey, 188 F. 450, p. 170.
U. S. v. DeMott, 3 F. 478, p. 156.
U. S. v. Denker, 255 F. 339, p. 509.

U. S. v. Dennis Quiver, U. S. Sup. Ct., Oct. Term, 1915 p. 564.
U. S. v. Dennee, 3 Wood. (U. S.) 39, p. 287.
U. S. v. DePont, 188 F. 127, p. 139.
U. S. v. Deviline, 6 Blatchf. 71 p. 571.
U. S. v. Dexter, 154 F. 890, p. 197.
U. S. v. Dewalt, 128 U. S. 393, p. 9.
U. S. v. Dietrich, 126 F. 670; 126 F. 664; 126 F. 676; 126 F. 671; p.

56; 236; 371.

xxxii Table of Cases.

U. S. v. Dimmick, 112 F. 350, p. 317.

U. S. v. Direct Sales Co., 252 F. 882, p. 625.

U. S. v. Dodge, 70 F. 235, p. 184.

U. S. v. Dodson, 268 F. 397, p. 508.

U. S. v. Doremus, 246 F. 958; U. S. Sup. Ct., Mar. 3, 1919; p. 509.

U. S. v. Dorsey, 40 F. 752, p. 168.

U. S. v. Douglas, 33 F. 381, p. 217.

U. S. v. Dougherty, 101 F. 439, p. 584.

U. S. v. Doughty, 25 Fed. Case No. 14987; p. 549.

U S. v. Driggs, 125 F. 520, p. 326.

U S. v. Driscoll, 1 Lowell, 303, p. 166.

U. S. v. Durant, 46 F. 753, p. 187.

U. S. v. Dwight Mfg. Co., 210 F. 74 p. 116.

U S. v. Dumas, 149 U. S. 283; p. 216.

U. S. v. Dunkley, 235 F. 1000, p. 617.

U. S. v. Dupont, 176 F. 823, p. 282.

U. S. v. Eastman, 252 F. 223, p. 182.

U. S. v. Eaton, 144 U. S. 688; 36 Law Ed. 591; p. 236; 588.

U. S. v. Eberhart, 127 F. 254; 127 F. 252, p. 429; 520.

U. S. v. Edwards, 43 F. 57, p. 285.

U. S. v. Egan, 30 F. 608, p. 89.

U. S. v. Elliott, 51 F. 807, p. 187.

U. S. v. Eman, 271 F. 353, p. 241.

U. S. v. Eno, 155 U. S. 89; 39 Law Ed. 80, p. 648.

U. S. v. Erie Ry. Co., 235 U. S. 513, p. 231.

U. S. v. Ethridge, 140 F. 376, p. 197.

U. S. v. Evans, 153 U. S. 584; 19 F. 912, p. 192; 287.

U. S. v. Fabata, 253 F. 586, p. 102.

U. S. v. Falkner, 21 F. 624, p. 163.

U. S. v. Farnham, 127 F. 478; p. 352; 393; 784.

U. S. v. Farmer, 218 F. 929, p. 193.

U. S. v. Fenton, 268 F. 221, p. 506.

U. S. v. Field, 16 F. 779, p. 224.

U. S. v. First Nat. Bank of Anamouse, 190 F. 336, p. 452.

U. S. v. Fischer, 245 F. 477, p. 241.

U. S. v. Fisk, 24 F. 585; Fed. Statutes, 150, p. 604.

U. S. v. Fitzgerald, 91 F. 374, p. 259.

U. S. v. Flashpiller, 205 F. 1006, p. 641.

U S. v. Fleming, 18 F. 907, p. 193.

U. S. v. Forbes, 25 Fed. Case No. 15129, p. 549; 550.

U. S. v. Ford, 99 U. S. 594; 50 F. 467, p. 18; 587.

U. S. v. Fortman, 268 F. 873, p. 573.

U. S. v. Forty Barrels, U. S. Sup. Ct., May, 1916, p. 625.

U. S. v. Foster, 183 F. 626; 211 F. 206, p. 80; 373.

U S. v. Four Hundred, etc., 193 F. 589, p. 621.

U S. v. Fout, 123 F. 625. p. 345.

U. S. v. Franklin, 174 F. 161, p. 352.

U. S. v. Franks, 189 F. 195, p. 625.

U. S. v. Freedman, 268 F. 655, p. 89; 366.

U S. v. Freeman, U. S. Sup. Ct., Oct., 1915, p. 454.

U. S. v. French, 243 F. 785; 57 F. 382, p. 604.

U S. v. Fricke, 259 F. 673, p. 408.

U S. v. Friedburg, 233 F. 313, p. 5; 7; 63.

U. S. v. Friedman, 224 F. 277; 224 F. 276, p. 471; 510.

U S. v. Frisbie, 28 F. 808, p. 358.

U. S. v. Fuld Store Co., 262 F. 836, p. 456.

U S. v. Fulkerson, 74 F. 619, p. 212.

U. S. v. Gaag, 237 F. 730, p. 239.

U. S. v. Gallant, 177 F. 281, p. 581.

U. S. v. Galleanni, 245 F. 977, p. 120; 365.

Table of Cases.. xxxiii

TJ. S. v. 1412 Gallons of Spirits, 10 Blatch. 428, p. 580.

U. S. v. Garcelon, 82 F. 611, p. 279.

U. S. v. Garretson, 42 F. 22, p. 384.

U. S. v. Gee, 45 F. 194, p. 185.

U. S. v. George, 228 U. S. 14, p. 280.

U. S. v. Germane, 90 U. S. 508, p. 313; 323.

U. S. v. Gibson, 188 F. 396; 188 F. 397; 47 F. 833, p. 102; 119; 143; 374.

U. S. v. Gilbert, 25 Fed. Cases No. 15205; 2 Sumn. 19; p. 226; 545.

U. S. v. Gin, 253 F. 210, p. 117.

U. S. v. Givings, 25 Fed. Case 1331, p. 551.

U. S. v. Glasener, 18 F. 566, p. 347.

U. S. v. Goldman, 207 F. 1002, p. 191.

U. S. v. Goodsay, 164 F. 157, p. 371.

U. S. v. Gordon, 235 F. 423, p. 35.

U S. v. Gowdy, 37 F. 383; 37 F. 332; p. 342; 359.

TJ. S. v. Gouled, 253 F. 239; 242 F. 64, p. 123.

U. S. v. Gradwell, U. S. Sup. Ct., April 1917; 234 F. 446; 227 F. 243;

p. 77; 365; 432.
U. S. v. Grassin, 3 Washington, 65; 26 Fed. Case, 10, p. 420.
U S. v. Greathouse, 26 Fed. Case 818, p. 408.
U. S. v. Green, 136 F. 641; 146 F. 804; 154 F. 402; 115 F. 343; 36 F.

618; p. 19; 154; 371.
U. S. v. Green, et al., 146 F. 778; 136 F. 618; p. 310; 375.
TJ. S. v. Greiner, 26 Fed. Case 15262, p. 408.
U. S. v. Griswold, 24 F. 361; 30 F. 604; 30 F. 762; P. 358.
U. S. v. Grodson, 164 F. 157, p. 613.
U. S. v. Gudger, U. S. Sup. Ct., Apr., 1919, p. 476.
U. S. v. Guiteau, 1 Mackey, 498, p. 533.
U. S. v. Guthrie, 171 F. 528, p. 582.
U. S. v. Gwynne, 209 F. 993; 209 F. 994, p. 640.
U. S. v. Haas, et al., 163 F. 908, p. 369; 333.
U. S. v. Haines, 26 Fed. Case No. 15275, p. 550.
U. S. v. Hall, 248 F. 53; F. 353; 150; 44 F. 864, 131 U. S. 50, 76 F. 5G6;

206 F. 485, p. 184; 286; 340; 168; 156; 22.
U. S. v. Hallowell, 271 F. 795, p. 391; 7.
U. S. v. Hallock 154 U. S. 537, p. 422.
U S. v. Hamilton, 9 F. 442, 57 F. 569, p. 163; 402.
U. S. v. Hammers, 241 F. 542, p. 509.
U. S. v. Hammon, 68 F. 472, p. 97.
TJ. S. v. Hammond, 246 F. 40, p. 385.

U. S. v. Hand, 6 McLean, 274; 26 Fed. Case No. 15296, p. 552.
U. S. v. Hansee, 79 F. 303, p. 348.
U S. v. Hardison, 135 F. 419, p. 281.
U. S. v. Hardy, 256 F. 284, p. 113.
U. S. v. Harned, 43 F. 376, p. 313.
U. S. v. Hare, 2 Wharton Criminal Case, 283, 26 Federal Case, 148, p.

154.
U. S. v. Hargrave, 26 Fed. Case, No. 15306, p. 268.
U. S. v. Harmison, 3 Saw., 556, p. 97.
U. S. v. Harmon, 45 F. 418, p. 174.
TJ. S. v. Harper, 33 F. 480; 474; 475; p. 604; 597.
U. S. v. Harris, 122 F. 551, 106 U. S. 629, 27 Law Ed. 290, p. 177;

432; 438.
U, S. v. Hart, Pet. C. C, 390 S. C. 3, Criminal Case, 304, p. 156.
U. S. v. Hart, 131 F. 866; 140 F. 843; 146 F. 202; 214 F. 655; 216 F.

374, p. 659; 357; 67.
U. S. v. Hartman, 65 F. 490, p. 359.
U. S. v. Harvey, 8 Law Rep. 77, p. 156.
TJ. S. v. Haskell, 26 Fed. Case, 207, p. 551.
U. S. v. Healey, 202 F. 349, p. 160.

xxxiv Table of Cases.

U. S. v. Hearing, 26 F. 744, p. 285; 281.

U. S. v. Heike, 175 F. 852, p. 14.

U. S. v. Heinze, 177 F. 770; 183 F. 907; 218 U. S. 542; 161 F. 425;

532, p. 109; 601; 595; 596.
U. S. v. Henkel, 185 F. 553, p. 33.
U. S. v. Herald, 159 F. 296, p. 175.

U. S. v. Hess, 124 U. S. 483; 124 U. S. 483; p. 372; 197.
U. S. v. Hewecker, 79 F. 59, p. 528.
U. S. v. Hicks, 256 F. 707, p. 235.
U. S. v. Higgerson, 46 Fed. Rep. 750, p. 563.
U. S. v. Higgins, 194 F. 539, p. 186.
U. S. v. Hilberry, 29 F. 705, p. 166.

U. S. v. Hill, 263 F. 812, U. S. Sup., Jan., 1919, p. 68; 476.
U. S. v. Hillegrass, 176 F. 444, p. 606.
U. S. v. Hipolite Egg Co., 220 U. S. 45, p. 624.
U. S. v. Hirsch, 100 U. S. 33, p. 371.
U. S. v. Hodges, 26 Fed. Case, 332, p. 408.
U. S. v. Hoke, 187 F. 992, p. 639.
U. S. v. Hollis, 246 F. 611, p. 140.
U. S. v. Holmes, 104 F. 884, p. 539.
U. S. v. Holt, 270 F. 639, p. 508.

U. S. v. Holte, 236 U. S. 140; 236 U. S. 140, p. 364; 373; 640.
U. S. v. Hoos, 232 F. 328, p. 599.
U. S. v. Hopkins, 199 F. 649; 26 F. 443, p. 620; 268.
U. S. v. Horman, 118 F. 780, p. 192.
U, S. v. Horner, 44 F. 677, p. 213.

U. S. v. Houghton, 14 F. 544; 14 F. 544; p. 615; 341.
U. S. v. Howard, 3 Wash. 430, 26 Fed. Case, 390—15404; 132 F. 325;

37 F. 666, p. 446; 557; 287; 278.
U. S. v. Howell, 64 F. 110, p. 263.
U. S. v. Hoxie, 26 Fed. Case, 397, p. 408.
U. S. v. Hoyt, 255 F. 927, p. 510.
U. S. v. Hudson, 7 Cranch. 32, p. 236.

U. S. v. Huff, 13 F. 630; 206 F. 700; 13 F. 639, p. 548; 293; 29.
U. S. v. Hughes, 70 F. 972, p. 422.
U. S. v. Huilsman, 94 F. 486, p. 166.
U. S. v. Hughitt, 45 F. 47, p. 604.
U. S. v. Hull, 14 F. 324, p. 355.
U. S. v. Hunt, 166 U. S. 1063, p. 50.
U. S. v. Hutchings, 26 Fed. Case, 440, p. 556.
U. S. v. Hyde, 132 F. 545, p. 128.
U. S. v. Hydes, 267 F. 470, p. 506.
U. S. v. Inabet, 41 F. 130, p. 167.

U. S. v. Ingham, 97 F. 935; 49 F. 155, p. 332; 356; 375.
U. S. v. Innes, 218 F. 705, p. 117.
U S. v. Insley, 54 F. 221, p. 50.

U. S. v. International Harvester Co., 214 F. 987, p. 138.
U. S. v. Irvine, 56 F. 375, p. 212.
U. S. v. Irwine, 5 McLean, 178, p. 339.
U. S. v. Jackson, 1 Hughes, 531; 2 F. 502; p. 572; 615.
U. S. v. Jacob, 254 F. 741, p. 242.
U. S. v. Jacobson, 257 F. 760; 26 Fed. Case, No. 16461; p. 6; 51; 102;

555.
U. S. v. James, 256 F. 102, p. 476.
U. S. v. Janowiz, 42 Sup. Ct. Rep., 40, p. 257.
U. S. v. Jarvis, 59 F. 357, p. 187.
U. S. v. Jasick, 252 F. 931, p. 200.
IT S. v. Jenks, 258 F. 763, 264 F. 697; p. 43; 599.
U S. v. Jenkins, 26 Fed. Case, No. 15437a, p. 549.
U. S. v. Jenkins, et al, 176 F. 672, p. 101.

Table of Cases. xxxv

U. S. v. Jin, 225 F. 1003; 241 U. S. 394, p. 509.

IT. S. v. Jin Foy Moy, Sup. Ct., Oct. Term, 1915; 241 U. S. 394, p. 509.

U. S. v. Johnson, 228 F. 251; 177 F. 313; 221 U. S. 488, p. 624; 630.

U. S. v. Jolly, 37 F. 118, p. 254.

U. S. v. Jones, 230 F. 262; 69 F. 973; 3 Wash. C. C, 209; 230 F. 263;

32 F. 482; 193 U. S. 530, p. 19; 68; 275; 380; 385; 545.
U. S. v. Joyce, 136 F. 455, p. 587.
U. S. v. Kallas, 272 F. 743; 272 F. 743, p. 65; 366.
U S. v. Kamberz, 236 F. 378; 256 F. 247, p. 462.
U. S. v. Kane, 23 F. 748; 19 F. 42, p. 372; 156.
U. S. v. Kee, 39 F. 603, p. 299.
U. S. v. Keen, 5 Mason, 453, p. 300.

U. S. v. Keitzel, 211 U. S. 370, 156 F. 396, p. 372; 371.
U S. v. Kelley, 11 Wheat, 417, p. 549.
U. S. v. Kelsh, 272 F. 848, p. 6; 71.
U. S. v. Kelso, 86 F. 304, p. 123.
U. S. v. Kennerly, 209 F. 119; p. 179; 174.
U. S. v. Kenney, 90 F. 257, p. 603.
U. S. v. Kenofskey, 235 F. 1019, p. 200.
U. S. v. Kerr, 159 F. 185, p. 163.
U. S. v. Kessel, 62 F. 57, p. 323; 375.
U S. v. Kessler, 26 Fed. Case, 766, 15528, p. 554; 557.
U. S. v. Keystone Watch Co., 218 F. 502, p. 138.
U. S. v. Kilpatrick, 16 F. 765; p. 301; 303.
U. S. v. Kimball, 117 F. 161, p. 18.
U S. v. King, 250 F. 90S; 229 F. 275, p. 141; 235.
U. S. v. Kirby, 74 U. S. 19; Law Ed., 278, p. 15,5.
U. S. v. Kissel, 173 F. 823; 62 F. 57, p. 33; 366.
U S. v. Klauder, 240 F. 501, p. 178.
U. S. v. Kline, 210 F. 954, p. 175.
U. S. v. Klintock, 5 Wheat. 144, p. 545.
U. S. v. Komie, 194 F. 567, p. 220; 223.
U. S. v. Koop, 245 F. 871, p. 234.
U. S. v. Koplik, 155 F. 919, p. 357.
U. S. v. Kraft, 249 F. 920, p. 182.
U. S. v. Kramer, 262 F. 395, p. 404.
U. S. v. Kresteff, 185 F. 201, p. 635.
U. S. v. Krichman, 256 F. 974; p. 333; 377.
U. S. v. Kuhl, 85 F. 624, p. 259.
U. S. v. Kuenstsler, 74 F. 220, p. 348.
U. S. v. Lacher, 134 U. S. 624, p. 163.
U. S. v. Lackey, 99 F. 952; 120 F. 57, p. 574.
U. S. v. Laeski, 29 F. 699, p. 265.
U. S. v. Lair, 118 F. 98, p. 359.
U. S. v. Lake. 129 F. 499, p. 285.
U. S. v. Lamar, 210 F. 685, p. 102.
U. S. v. Lamkin, 73 F. 459, p. 171.
U. S. v. Lamson, 173 F. 673; 165 F. 80, p. 279; 586.
U. S. v. Lancaster, 44 F. 885, p. 439.
U. S. v. Lantry, 30 F. 232, p. 151.
U. S. v. Lawrence, 13 Blatch, 211, p. 664.
U. S. v. Law, 59 F. 915, p. 279.
U. S. v. Lavoie, 182 F. 934, p. 634.
U. S. v. Lee, 90 F. 256; 170 F. 613, p. 50; 164.
IT. S. v. Legg, 105 F. 933, p. 395.
U. S. v. Lehman, 39 F. 768, p. 401.
U. S. v. Lew, 224 F. 649, p. 117.
U. S. v. Lewis, 253 F. 469; 192 F. 834; 192 F. 633; 235 U. S. — ; 11 F.

630; U. S. Sup. Ct. Rep., Oct. Term, 1914; p. 36; 39; 243; 620; 727.
U S. v. Libby, W. & M. 221, p. 512.

xxxvi Table op Cases.

U. S. v. Linnier, 125 F. 83, p. 534.

U. S. v. Lissner, 12 F. 840, p. 269.

U. S. v. Listnian, 263 F. 798, p. 365.

U. S. v. Lockwood, 164 F. 772, p. 586.

U. S. v. Loftin, 12 F. 671, p. 187.

U. S. v. Logan, 26 Fed Case, No. 15624; 12 Sup. Ct. 617; 36 Law Ed.

429, p. 428; 576.
U. S. v. Lombardo, Oct. Term, Sup. Ct, 1915; 228 F. 980, 241 U. S. 73,

p. 18; 44; 642.
U. S. v. Lonabaugh, 158 F. 314, p. 369.
U S. v. Long, 30 F. 678, p. 222.
U. S. v. Lonkapot, 43 F. 64, p. 384.
U. S. v. Lophansky, 232 F. 297, p. 164; 168.
U. S. v. Loring, 91 F. 881, p. 194.
U. S. v. Lowenthal, 257 F. 444, p. 510.

U S. v. Lowry, 2 Wash. 169, 26 Fed. Case, Nc. 15636, p. 202.
U. S. v. Lynch, 256 F. 983; 26 Fed. Case, No. 15648; 259 F. 982; 49 F.

85; p. 97; 212; 238; 333; 549.
U. S. v. Lydecker, 275 F. 976; 275 F. 977, p. 7; 63.
U. S. v. Madison, 21 F. 628, p. 281.
U. S. v. Maid, 116 F. 650, p. 278.
U. S. v. Mallard, 40 Sup. Ct. 151, p. 277.
U S. v. Malone, 9 F. 897, p. 98.
U. S. v. Manion, 44 F. 800, p. 278.
U. S. v. Mann, 160 F. 552, p. 228.
U. S. v. Mansfield, 177 F. 765, p. 622.
U. S. v. Mansion, 44 F. 800; p. 341.
U. S. v. Manufacturing Co., 240 F. 235, p. 12.

U. S. v. Marchant & Colson, 25 U. S. 479; 6 Law Ed. 700, p. 103.
U. S. v. Maresca, 266 F. 713, p. 6.
U. S. v. Markewich, 261 F. 537, p. 35.
U. S. v. Marigold, 9 Howard, 560, p. 56.
U. S. v. Marrin, 170 F. 467; 227 F. 314, p. 50; 645.
U, S. v. Marquette, 271 F. 120; 270 F. 214, p. 7; 63.
U. S. v. Martin, 176 F. 110; 17 F. 150; 4 Cliff (U. S.), 156; 50 F. 918;

140 F. 256; p. 151; 171; 293; 368; 460.
U. S. v. Martindale, 146 F. 291, p. 19.
U. S. v. Marx, 122 F. 964, p. 373.
U. S. v. Mason, 213 U. S. 115; 179 F. 552, 12 Blatchf. (U. S.), 497, p.

227; 263; 434; 443.
U. S. v. Masters, 264 F. 250, p. 506.
U. S. v. Mathie, 274 F. 225, p. 508.
U. S. v. Matthews, 35 F. 890, p. 163.
U. S. v. Maxey, 200 F. 1001, p. 191.
U. S. v. Mayer, 81 F. 159, p. 315; 721.
U. S. v. McAndrews, et al., 149 F. 823, p. 140.
U. S. v. McAvoy, 25 Fed. Case 1044; 6 Blatchf, 418, p. Ill; 556.
U. S. v. McClarty, 191 F. 538, p. 605.
U. S. v. McClellan, 127 F. 971, p. 520; 690.
U. S. v. McCoy, 193 U. S. 599, p. 216.
U. S. v. McCready, 11 F. 225, p. 166.
U. S. v. McCrory, 175 F. 802, p. 213.
U. S v McCullagh, 221 F. 288, p. 457.
U. S. v. McDee, 4 Dill, 128, p. 286.
U. S. v. McDonald, 8 Biss, 439; 26 Fed. Case No. 15667; 265 F. 695; 265

F. 754, p. 105; 212.
U. S. v. McHie, et al, 196 F. 586, p. 66.
U. S. v. McHugh, 253 F. 224, p. 366.
U. S. v. McKinley, 127 F. 166; 126 F. 242; 343; 373.
U. S. v. McLeod, 119 F. 416, p. 300.

Table of Cases. xxxvii

U. S. v. McVickar, 164 F. 894, p. 197.

U. S. v. Meager, 37 F. 875, p. 528.

U. S. v. Means, 42 F. 599, p. 604.

U. S. v. Melfi, 118 F. 899; 118 F. 902, p. 369; 400.

U. S. v. Memphis Railroad Co., 6 F. 239 p. 301.

U. S. v. Meresces, 266 F. 713, p. 63.

U. S. v. Mescall, 164 F. 584, p. 394.

U. S. v. Metzdorf, 252 F. 933, p. 200.

U. S. v. Metzer, 270 F. 291, p. 507.

U. S. v. Meyers, 140 F. 907, p. 165.

U. S. v. Michalski, 265 F. 933, p. 200.

U. S. v. Miller, 8 Utah, 29, p. 215.

U. S. v. Milner, 36 F. 890, p., 372.

U. S. v. Mincey, 254 F. 287, p. 506.

U. S. v. Mitchael, 153 F. 609, p. 357.

U. S. v. Mitchell, 274 F 128; 2 Dall. 348; 2 Dall, 26 Fed. Case, 1277;

p. 8; 87; 141; 371; 408; 666.
U. S. v. Mixon, et al, 235 U. S. 231, p. 144.
U S. v. Mobelnski, 118 F. 495, p. 174.
U. S. v. Moref, 136 F. 491, p. 576.

U. S. v. Morehead. U. S. Sup. Ct., April, 1917, p. 282.
U. S. v. Morgan, 22 U. S. 274; 222 U. S. 274, p. 620; 621.
U. S. v. Moore, 104 F. 78; 60 F. 738; 144 F. 962; 18 F. 686, p. 177;

313' 347* 403.
U S. v.' Morris, 16 Blatch (U. S.), 133 F. 26, Fed. Case, No. 15813, p.

125; 223; 322; 433.
U. S. v. Monisey, 245 F. 923, p. 118.
U. S. v. Morse, 161 F. 429, p. 605.
U. S. v. Mossen, 238 F. 383, p. 101.
U S. v. Mounday, et al, 208 F. 186, p. 67.
U. S. v. Mullins, 71 F. 682, p. 292.
U. S. v. Munday, 186 F. 375, p. 374.
U. S. v. Mundell, Hughes, 415; 6 Coll, 245; 27 Fed. Case, No. 15834,

p. Ill; 293.
U. S. v. Murphy, 224 F. 554; 264 F. 842; 9 F. 26; 84 F. 60; 253 F. 404;

244 F. 554; 261 F. 751; p. 39; 51; 80; 119; 361; 420; 508.
U S. v. Mustgrave, 160 F. 243, p. 175.

U. S. v. Mutual Association, 131 U. S. , p. 89.

U S. v. Myler, 27 Fed. Case, No. 15849, p. 346.

U. S. v. Nagler, 252 F. 217, p. 182.

U S. v. Natura Company, 250 F. 925, p. 626.

U. S. v. Neal, 14 F. 767, p. 281.

U. S. v. Nearing, 252 F. 223, p. 182.

U. S. v. Nelson, 254 F. 889; 199 F. 464, p. 10-283.

U. S. v. Netcher, I Storey, 307, p. 551.

U. S. v. Nevin, 199 F. 831, p. 25; 37; 41; 831.

U S. v. Newton, 275 F. 394; 52 F. 275; 48 F. 218, p. 359; 363; 368; 626.

U. S. v. Nixon, et al. Sup. Ct. of U. S. Oct. Term, 1914; 235 U. S. 231,

p. 119; 731.
U. S. v. Noelke, 1 F. 426, p. 177.
Q S. v. N. Y., 131 F. 323, p. 398.
U S. v. North, 184 F. 153, p. 145.
U. S. v. Norris, 255 F. 423, p. 140.
U. S. v. Norton, 91 U. S. 250; also sec. 344 Penal Code Appendix; 188

F. 256, p. 136; 601.
U. S. v. Northway, 120 U. S. 327; 30 Law Ed. 665; 120 U. S. 336; 30

Law Ed. 664, p. 597; 710.
U. S. v. Nunez, et al., 82 F. 599, p. 421.
U. S. v. O'Brien, et al, 75 F. 900, p. 416; 422.
U. S. v. O'Donnell, 165 F. 218, p. 172.

xxxviii Table of Cases.

U. S v. Olney, 38 F. 328, p. 184; 187.

U. S. v. Olson, 253 F. 232, p. 234.

U. S. v. Oltney, 31 F. 68, p. 267.

U. S. v. One, 272 F. 188; 259 F. 641; 257 F. 251; 259 F. 645; 262 F. 375;

273 F. 253; 273 F. 275; 274 F. 470; 274 F. 473; 274 F. 926; 263 P.

241, p. 506; 570.
U. S. v. One Machine, 267 F. 501, p. 506.
U. S. v. One Purple Costume, 158 F. 899, p. 659.
U. S. v. One Trunk, 175 F. 1012; 184 F. 317; 171 F. 772, p. 658; 659.
U. S. v. Oppenheim, 228 F. 220; 228 F. 221; U. S. Sup. Ct. 1916, p. 64;

243.
U. S. v. Orr, 233 F. 717, p. 588.

U. S. v. O'Sullivan, 27 Fed. Case, No. 15975, p. 422.
U. S. v. O'Toole, 236 F. 993, 433.

U. S. v. Owens, 17 F. 72; 37 F. 112; 32 F. 534, p. 269; 615.
U. S. v. Palmer, 3 Wheat 610, p. 545; 556.
U. S. v. Pape, 233 F. 270, p. 182.
U. S. v. Parker, 121 U. S. 596, p. 574.
U. S. v. Parsons, 261 F. 223, p. 510.

U. S. v. Patten, 226 U. S. 525; 187 F. 664; 226 U. S. 527, p. 138; 144.
U. S. v. Patterson, 172 F. 241; 201 F. 698; 29 F. 775, p. 98; 138; 282.
U. S. v. Patrick, 53 F. 356; 54 F. 338, p. 439.
U. S. v. Paul, 6 Peters, 141 p. 54. •
U. S. v. Pecham, 143 F. 625, p. 46.
U. S. v. Pena, 69 F. 983, p. 422.
U S. v. People's, 271 F. 790, p. 5.

U. S. v. Perez, 9 Wheat 578, Vol. 6, Law Ed. 165 p. 53.
U S. v. Perlman, 247 F. 158, p. 110.
U. S. v. Perrin, 131 U. S. 55, p. 372.
U. S. v. Persons, 2 Blatchf. 104, p. 166.

U S. v. Peters, 87 F. 985; 32 Abb. (U. S.) 494, p. 267; 603.
U. S. v. Peterson, 268 F. 864; 64 F. 145; 27 Fed. Case, 515, p. 507;

529; 551.
U. S. v. Pettus, 84 F. 791, p. 283.
U. S. v. Phelan, 250 F. 927; 225 F. 891, p. 12; 242.
v. Phila. Co., 125 U. S. 113, p. 92.
v. Phila Railway Co., 221 F. 683, p. 110.
v. Phillips, 196 F. 574, p. 616.
v. Pierce, 245 F. 878; 245 F. 888, p. 123; 182.
v. Pile, 130 U. S. 280, p. 98.
U. S. v. Pine River Logging & Improvement Co., 89 F. 907, p. 386.
U. S. v. Pirates, 5 Wheat 184; 5 Wheat 184, p. 422; 545.
IT. S. v. Pittman, 27 Fed. Case, 540, p. 554.
U. S. v. Pitto, 267 F. 603, p. 68.
U. S. v. Pitts, 112 F. 522, p. 251.
U. S. v. Piowaty, 251 F. 375, p. 141.
U. S. v. Plyer, 222 U. S. 15, p. 344.
U. S. v. Pollack, 230 F. 532, p. 120.
U. S. v. Polite, 35 F. 58, p. 301.
U. S. v. Politzer, 59 F. 273, p. 212.
U. S. v. Porlate, et al., 235 U. S. 27, p. 729.
U. S. v. Porrazo, 242 F. 276, p. 7.
U. S. v. Porria, 255 F. 172, p. 11.
U. S. v. Post, 113 F. 852, p. 189.
U. S. v. Postmaster, 221 F. 687, p. 246.
U. S. v. Powell, 151 F. 648, p. 437.
U. S. v. Praeger, 149 F. 484, p. 13.
U. S. v. Pratt, 27 Fed. Case, No. 16082, p. 187.
U. S. v. Premises, 246 F. 185, p. 5.
U. S. v. Prentis, 182 F. 894, p. 634.

Table of Cases. xxxix

U. S. v. Press Publishing Co. 219 U. S. 1, p. 543.

IL S. v. Pressy, i Lowell, 319, p. 570.

U. S. v. Price, 163 F. 904, p. 13.

U. S. v. Pryor, 27 Fed. Case, 628, p. 408.

U. S. v. Puhac, 268 F. 392, p. 507.

U. S. v. Purple, 133 F. 243, p. 175.

U. S. v. Purvis, 195 F. 618, p. 210.

U. S. v. Quartius, 267 F. 227, p. 7; 10.

U. S. v. Quincy, 6 Peters, 445, p. 423.

U. S. v. Raich, 144 F. 486; 163 F. 911; p. 197; 398.

U. S. v. Ram, 254 F. 635, p. 423.

U. S. v. Ray, 275 F. 1004, p. 6.

U. S. v. Reagan, 273 F. 729, p. 645.

U. S. v. Reed, Fed. Case, No. 16134, p. 41.

U. S. v. Reichurt, 32 F. 142, p. 358.

U. S. v. Reid, 12 Howard, 363; 73 F. 289, p. 21; 177.

U. S. v. Reid, et al., 210 F. 486, p. 550.

U. S. v. Reiley, 173 F. 159; 131 U. S. 59; 33 Law Ed. 75, p. 341; 372.

U. S. v. Reinheimer, 233 F. 545, p. 177.

U S. v. Reed, 274 F. 724, p. 655.

U. S. v. Rennecke, 38 F. 847, p. 572.

U. S. v. Reece, 4 Sawyer, 629, p. 346.

U. S. v. Reeves, 92 U. S. 21; 23 Law Ed. 563, p. 431.

U. S. v. Reynolds, et. al., 235 U. S. 133; 244 F. 991; U. S. Sup. Ct.
Oct. Term, 1914, p. 510; 523; 721

U. S. v. Rhodes, 212 F. 518; 212 F. 513; 30 F. 431, p. 283; 358; 518:
617.

IT S. v. Rice, 192 F. 720, p. 50.

U. S. v. Richards, 149 F. 443, p. 371.

U. S. v. Ridgway, 199 F. 281, p. 210.

U. S. v. Riddle, 4 Wash. 644, p. 551.

U. S. v. Ridnour, 119 F. 401, p. 577.

U. S. v. Rintelen, 233 F. 793; 235 F. 787, p. 45- 140.

U. S. v. Rio Grande, etc., 184 U. S. 423, p. 133

U S. v. Rispoli, 189 F. 271, p. 640.

XL S. v. Robertson, 257 F. 195, p. 282.

IT. S. v. Rockefeller, 260 F. 346, p. 456.

U. S. v. Roekteschell, 208 F. 530, p. 404.

U. S. v. Robinson, 259 F. 685; 266 F. 240; 266 F. 240, p. 5; 365.

IT. S. v. Rogers, 150 U. S. 249; 37 Law Ed. 1071; 46 F. 1; 27 Fed-
Case, No. 16187; 226 F. 512; p. 529; 365; 549.

IT. S. v. Rohmstorimm, 5 Blatchf. 222, p. 347.

U. S. v. Rolinger, 27 Fed. Case, No. 16190— a, p. 576.

IT. S. v. Rose, 212 F. 518, p. 284.

U. S. v. Rosenblum, 121 F. 180, p. 212.

U. S. v. Rosenstein, 211 F. 738, p. 280.

U. S. v. Rosenthal, 126 F. 766, p. 396.

U. S. v. Rossenwasser, 255 F. 233, p. 123.

IT. S. v. Rossi, 268 F. 620, p. 257.

IT. S. v. Rotagozak. 275 F. 558. p. 12.

IT. S. v. Roussopulous, 95 F. 977; 95 F. 978, p. 266; 272.

U. S. v. Route, 33 F. 246, p. 359.

U. S. v. Royer, 122 F. 844, p. 222; 227.

IT. S. v. The Resolute, 40 F. 543, p. 422.

U. S. v. The Robert & Minnie, 47 F. 84, p. 422.

U S. v. Rubin, et al., 218 F. 245, p. 111.

U. S. v. Ruggles, 5 Mass. 192, p. 551.

U. S. v. Rush, 196 F. 580, p. 350.

U. S. v. Russell, 22 F. 390; 41 Sup. Ct. Rep. 260; U. S. Sup. Ct. April,
1921; 19 F. 591, p. 268; 300; 301; 358.

xl Table of Cases.

U. S. v. Ryan, 123 F. 634, p. 194.
U. S. v. Rydowski, 267 F. 866, p. 508,
U. S. v. Sacein, 269 F. 33, p. 506.
U. S. v. Sacia, 2 F. 754, p. 363.
U. S. v. Sacks, 42 Sup. Ct. Rep. 38 p. 257.
U. S. v. Safford, 66 F. 942, p. 165.
U. S. v. Salen, 216 F. 420, p. 280; 283.
U. S. v. Sandefur, 145 F. 849, p. 583.
U S. v. Sander, 241 F. 417, p. 423.

U. S. v. Sanders, 6 McClain, 598; 77 F. 170, p. 151; 166.
U. S. v. Sanges, 48 F. — , p. 439.
U. S. v. Sauer, 88 F. 249, p. 194.

U. S. v. Schallinger, 230 F. 290, p. 45; 47; 125; 626.
v. Schawver, 214 F. 154, p. 455.
v. Schenck, 253 F. 212, p. 366.
v. Schider, U. S. Sup. Ct. Apr., 1918, p. 626.
v. Schlierholz, 137 F. 616; 133 F. 333, p. 312; 616.
U. S. v. Schlatter, 235 F. 381, p. 200.

U. S. v. Schooner, 2 Paine, 25 Fed. Case, No. 14755; 16344, p. 516; 549.
U. S. v. Schrader, 40 Sup. Ct. Rep. 251, p. 233.
U. S. v. Schulte, 252 F. 213, p. 182.
U. S. v. Schulze, 253 F. 377, p. 182.
U. S. v. Schwarz, 230 F. 537, p. 211.
U. S. v. Scott, 232 F. 192, p. 45.
U. S. v. Sears, 55 F. 268, p. 156.

U. S. v. Seagrist, 27 Fed. Case, Nos. 16245; 16037, p. 549.
U S. v. Selkirk, 258 F. 775, p. 456.
U. S. v. Sharp, 27 Fed. Case, 16246, p. 459.
U. S. v. Shelton, 100 F. 831, p. 151.
U. S. v. Sherwood, 177 F. 596, p. 191.
U S. v. Shinn, 14 F. 447, p. 281.
U. S. v. Shorey, 9 Internal Revenue 302, 27 Fed. Cas. No. 16281, also

page 349, Vol. Gould & Tucker Notes, p. 136.
U. S. v. Sibray, 178 F. 144, p. 633.
U. S. v. Silverthorne, 265 F. 853, p. 44.
U. S. v. Simon, 248 F- 980; 146 F. 92;
U. S. v. Simmons, 61 F. 640, p. 187.

U. S. v. Simpson, 229 F. 940; 40 Sup. Ct. 364, p. 13; 476.
U. S. v. Sischo, 262 F. 1001, p. 630.
U. S. v. Sisson, 230 F. 974, p. 117.
U S. v. Six Barrels, 253 F. 199, p. 625.
U. S. v. Skinner, 218 F. 871, p. 17.
U. S. v. Slusser, 270 F. 818, p. 508.
U. S. v. Smaller, 275 F. 1011, p. 6.
U. S. v. Smart, 237 F. 978, p. 51.
U. S. v. Smiley, 27 Fed. Case, 1132, p. 554.
U. S. v. Smith, 163 F. 926; 262 F. 191; 156 F. 859; 152 F. 542; 11

Utah, 433; 5 Wheat 153; 45 F. 115; 69 F. 971; 11 F. 663; 269; 40

F. 755 F 191; 1 Dill. 212; 27 Fed. Case, No. 16333, 173 F. 227;

227 F. 165; 45 F. 561; 166 F. 958; 163 F. 926; 115 F. 423, p. 167;

187; 197; 198; 203; 251; 246; 292; 334; 336; 349; 358; 457;

545; 576; 607; 688; 805.
U. S. v. Snyder, 14 F. 554, p. 71; 215.
U. S. v. Sohm, 265 F. 910, p. 573.
U. S. v. Somers, 164 F. 259, p. 175.
U. S. v. Sprague, 208 F. 419; 48 F. 828, p. 625.
U. S. v. Stafoff, 268 F. 417, p. 507.
U. S. v. Stamapoulos, 164 F. 524, p. 367.
U. S. v. Standard Oil Co., 173 F. 177, p. 139.
U. S. v. Staples, 45 F. 195, p. 192.

Table of Cases. xli

U. S. v. Starnes, 37 F. 665, p. 576.

U. S. v. Steinman, 172 F. 913, p. 607.

U. S. v. Stell, Co., 40 Sup. Ct. Rep. 293, p. 140.

U. S. v. Stephens, 245 F. 956, p. 120.

U. S. v. Stevens, 44 F. 132; 52 F. 120, p. 260; 367.

U. S. v. Stilson, 254 F. 120, p. 91.

U. S. v. St. John, 254 F. 794, p. 102.

U. S. v. St. Louis Railway Co., 169 F. 73, p. 79.

U. S. v. Stoho, 251 F. 689, p. 200.

U. S. v. Stone, 197 F. 483; 188 F. 836; 8 F. 232; 8 F. 239, p. 22; 111;

432; 553.
U. S. v. Stores, 14 F. 824, p. 384.
U. S. v. Strickrath, 242 F. 151, p. 200.
U. S. v. Strobach, 48 F. 902, p. 359.
U. S. v. Strong, 263 F. 789, p. 365.
U. S. v. Stubblefield, 40 F. 454, p. 567.
U. S. v. Sugarman, 245 F. 605, p. 182.
U. S. v. Sullivan, 250 F. 623, p. 462.
U. S. v. Sweeney, 95 F. 434, p. 32.
U. S. v. Taucher, 233 F. 597, p. 423.
U. S. v. Taylor, 108 F. 621, p. 351.
U. S. v. Terrell, 1 Fed. Case, 999, p. 556.
IT. S. v. Terry, 41 F. 771, p. 290.

U. S. v. Thayer, 209 U. S., 154 F. 508, p. 335; 688; 805.
U. S. v. Thomas, 55 F. 380; 47 F. 807; 69 F. 588; 28 Fed. Case No.

16471, p. 156; 166; 300.
U. S. v. Thompson, 28 Fed. Case, No. 16492, 202 F. 346; 31 F. 331; 40

Sup. Ct. Rep. 289; 147 F. 637, p. 43; 96; 287; 456; 641.
U. S. v. Three Copper Stills, 47 F. 495, p. 577.

U. S. v. Three Friends, 166 U. S. 1; Lawyers Ed. 41, page 915, p. 419.
U S. v. Tinglepaugh, 3 Blatchf. 425, p. 291.
U. S. v. Todd, 25 F. 815, p. 341.

U. S. v. Tract of Land, 1 Wood 475; 28 Fed. Case, 203, p. 409.
U. S. v. Trans-Missouri Freight Association, 166 U. S. 290, p. 140.
U. S. v. Trasp, 127 F. 471, p. 162.
U. S. v. Trice, 30 F. 490, p. 546.
U. S. v. Trosper, 127 F. 467, p. 168.
U. S. v. Trumbull, 48 F. 99, p. 422.
U. S. v. Tsokas, 163 F. 129, p. 636.
U. S. v. Tuberclecide Co., 252 F. 938, p. 625.
U. S. v. Tucker, 188 F. 741, p. 625.
U S. v. Tully, 140 F. 899; 28 Fed. Case, 16545; 1 Gallis, 247 F. 545,

p. 527; 557.
U. S. v. Turner, 7 Peters, 132, 8 Law. Ed. 633, p. 258.
U. S. v. Twenty Caskets, etc., 133 F. 910, p. 582.
U. S. v. Two Cans, 268 F. 866, p. 626.
U. S. v. Underwood, 267 F. 412, p. 201.
Ulmer v. U. S., 266 F. 176; 219 F. 641, p. 91; 280.
U. S. v. Uhl, 266 F. 35, p. 117.
U. S. v. Union, 259 F. 907, p. 365.
U. S. v. Union Mfg. Co., 240 U. S. 605, p. 244.
U. S. v. Union Pacific, 188 F. 102, p. 139.
U. S. v. U. S., 262 F. 459, p. 462.

U. S. v. United Shoe Company, 264 F. 138, p. 141; 235.
U. S. v. Van Auken, 96 U. S. 366, p. 266.
U. S. v. Vanduzee, 140 U. S-, 173, p. 19; 40
U. S. v. Vane, 254 F. 28, p. 645.

U. S. v. Van Horn, 20, International R. E. E., 145, p. 751.
U. S. v. Van Leuven, 2 F., 62; 62, F., 62; 62, F., 935, p. 323, 331, 3.59.
U S. v. Vanranst, 28 Fed. Case No. 16608, p. 555.

xlii Table of Cases.

U. S. v. Van Schaick, 134, F. 592, 134, F. 594, p. 539, 695.

U. S. v. Vigol, 28, Fed. case 376, p. 408.

U. S. v. Vilato, 2 Dall. 370, p. 408.

U. S. v. Voltz, 14 Blatchf, 15, p. 282.

U. S. v. Voorhes, 9, F. 864, p. 603.

U S. v. Wan, 160 F. 207, p. 28; 218.

U. S. v. Wallace, 40 F. 144, p. 359.

U. S. v. Waller, 225 F. 673, p. 120.

U. S. v. Wallis, 268 F. 413, p. 117.

U. S. v. Waitz, 3 Sawy, 28 Fed. Case, No. 16631, p. 313.

U. S. v. Walsh, 22 F. 622, p. 285.

U. S. v. Walter Scott Stamp Co., 87 F. 721, p. 218.

U. S. v. Watkins, 3rd, Cranch, C. 441; 58 F. 492; 136; 208.

U. S. v. Watson, 266 F. 736; 35 F. 358; 251 F. 310, p. 6; 194; 655.

U. S. v. Weber, 210 F. 973, p. 270.

U S. v. Webber, 210 F. 973, p. 254.

U. S. v. Welch, 243 F. 996, p. 432.

U. S. v. Wello, 225 F. 320; 262 F. 833; 186 F. 248; 163 F. 313, p. 77; 45;

140; 181; 621.
U. S. v. Wells Co., 186 F. 248, p. 9.
U. S. v. Welsh, 250 F. 309, p. 248.
U S. v. Weis, 181 F. 860, p. 634.
U. S. v. Weitzel, U. S. Supt. Ct. April, 1918, p. 599.
U. S. v. Wentworth, 11 F. 52, p. 342.
U. S. v. Werner, 247 F. 709, p. 408.
U. S. v. Westerwelt, 5 Blatchf, 30, p. 512.
U S. v. Wetrnore, 218 F. 227, p. 109.
U S. v. Wheeler, 254 F. 611, p. 432.
U. S. v. Whiting, 212 F. 467, p. 139.
U. S. v. Whipley, 125 F. 617, p. 207.
U. S. v. White, 19 F. 724; 150 F. 379, p. 197; 266.
U. S. v. Wilberger, 5 Wheat, U. S. 76, p. 408.
U. S. v. Wilcox, 4 Blatchf, 385; 243 F. 993, p. 347; 432.
U. S. v. Williams, 3 F. 484; 26 F. 690; 14 F. 550; 57 F. 210, p. 151;

177; 217; 251.
U. S. v. Wiltbarger. 5 Wheat, 97, p. 409.
U. S. v. Winchester, 3 McLean, 135, p. 281.
U. S. v. Windharm, 264 F. 376, p. 506.
U. S. v. Wing, 211 F. 935, p. 115.
U. S. v. Wilson, 60 F. 890; 44F. 751; 46 F. 748; 225 F. 82; 176 F. 806:

226 F. 712; 44 F. 593; 28 Fed. Case 699; 28 Fed. Case, 718; 28 Fed.

Case 16732; 144 U. S. 24; 60 F. 890; 7 Peters, 159, p. 11; 96; 154:

163; 167; 215; 259; 347; 363; 373; 509; 605; 635.
U. S. v. Woods, 224 F. 278; 224 F. 280; 28 Fed. Case, No. 16759, p. 471;

509; 575; 630.
U. S. v. Woodson, 357 F. 358, p. 192.
U. S. v. Wooten, 29 F. 702, p. 192.
U. S. v. Woodward, 44 F. 592, p. 156.
U. S. v. Wupperman, et al, 215 F. 135, p. 365.
U. S. v. W. W. Fishing Co., 224 F. 274, p. 625.
U. S. v. Wynn, 9 F. 894, p. 9.
U. S. v. Ybanez,»53 F. 536.
U. S. v. Yee Ling, 222 F. 154, p. 629.
U. S. v. Yennie, 74 F. 221, p. 22 also at p. 151.
U. S. v. Yet Yee, 192 F. 577, p. 115.
U. S. v. Yohn, 275 F. 232, p. 462.
U. S. v. Young, 232 U. S. 155; 215 F. 286; 25 F. 710; 128 F. Ill, p. 25;

191; 227; 604.
U S. v. Yount, 267 F. 861, p. 48.
U. S. v. Youtsey, 91 F. 864; 91 F. 867, p. 597; 603.

Table of Cases. xliii

U. S. v. Yuen, 211 F. 1001, p. 115.
U. S. v. Yuginni, 266 F. 745; 274 F. — , p. 506; 578.
U. S. v. Zarafonitis, 150 F. 99, p. 50.

V.
Van Werkhoven, 250 F. 311, p. 248.
Vane v. U. S. 254 F. 28, p. 102; 653.

Van Dusen v. U. S. 151 F. 989, p. 197.
Van Schaick v. U. S. 159 F. 847, p. 539.
Van Pelt v. U. S. 240 F. 347, p. 636.
Vernon v. U. S., 146 F. 121, p. 376.
Veeder v. U. S., 252 F. 414, p. 5.
Vives v. U. S., 92 F. 355, p. 222.
Vicksburg v. O'Brien, 119 U. S. 99, p. 246.
Virginia v. Rives, 100 U. S. 313, p. 432.
Virginia v. Paul, 148 U. S. 107, p. 43.
Vicksburg v. Putnam, 118 U. S. 545, p. 92.
Violitte v. Walsh, 272 F. 1014, p. 506.
Voves v. U. S. 249 F. 191, p. 507.
Voege v. U. S. 270 F. 219, p. 95.

Watlington v. U. S. 233 F. 247, p. 238.

Wauen v. Flower, 29 Fed. Cas., 255, p. 247.

Ward v. Congress, 99 F. 598, p. 247.

Wan Din v. U. S., 135 F. 704, p. 371.

Wallace v. Van Riswick, 92 U. S. 202, p. 409.

Warren v. U. S., 183 F. 718, p. 183; 199 F. 753, p. 616.

Walker v. U. S., 152 F. Ill, p. 194.

Walsh v. U. S., 177 F. 208, p. 101; 174 F. 615, p. 606.

Wagman v. U. S., 269 F. 568, p. 118.

Wallace v. U. S., 243 F. 300, p. 119; 509.

Walster v. U. S., 42 F. 891, p. 163.

Westinghouse v. Diamond, 268 F. 121, p. 235.

Westin v. Conn, 111 Pa. 251, p. 236.

Weeds v. U. S., 41 Sup. Ct. Rep. 306, p. 246.

Wetzel v. U. S. 233 F. 984, p. 246; 274 F. 101, p. 320; p. 178.

West v. U. S., 258 F. 413, p. 287.

Wells v. U. S., 257 F. 605, p. 411.

Webber v. Freed, 239 U. S. 325, p. 182.

Weems v. U. S., 217 U. S. 349, p. 126.

Welsing v. U. S., 218 F. 369, p. 163.

Weddel v. U. S., 213 F. 208, p. 641.

Welch v. U. S., 220 F. 764, p. 641.

Wessel v. U. S., 262 F. 389, p. 56.

Weeks v. U. S., 232 U. S. 383, p. 67; 7; U. S. Sup. Ct, Feb., 1918, p. 625.

Weathers v. U. S., 269 F. 254, p. 88.

Webb v. U. S., U. S. Sup. Ct. March, 1919, p. 510.

Wesoky v. U. S., 175 F. 333, p. 586.

Wechsler v. U. S., 158 F. 579, p. 615.

Whittaker v. Brannon, 252 F. 556, p. 247.

Wheeler v. U. S., 159 U. S. 523, p. 133; 226 U. S. 478, p. 29.

Whiting v. U. S., 263 F. 477, p. 82.

Wiggins v. U. S., 214 F. 970, p. 253.

Williamson v. U. S., U. S. Sup. Ct. Oct. Term, 1907; 207 U. S. 425, p.

372.
Wilden v. U. S., 143 F. 433, p. 298.
Williams v. U. S., 168 U. S. 382, p. 313; 97; 254 F. 52, p. 112; 54; 70;

275 F. 129, p. 20; 158 F. 30, p. 580.
Windsor v. McVeigh, 93 U. S. 274, p. 409.

xliv Table of Cases.

Wigborg v. U. S-, 163, U. S. 632, p. 417; 126.
Wilborg v. U. S., 163 U. S. 556, p. 92.

Wilson v. U. S., 190 F. 427, p. 199; 275 F. 307, p. 199; 123- 232 U. S. 563,
p. 640; 162 U. S. 613, p. 61; 221 U. S. 361, p. 17; 229 F. 344, p. 509.
Wine v. U. S., 260 F. 911, p. 199.
Williams v. Conger, 125 U. S. 397, p. 145.
Withamp v. U. S., 127 F. 530, p. 145.
Winters v. U. S., 201 F. 845, p. 179.
Wilder v. U. S., 143 F. 439, p. 42.
Winston v. U. S., 172 F. 304, p. 534.
Willingham v. U. S., 208 F. 137, p. 569.
Wolf v. U. S., 259 F. 388, p. 182; 238 F. 903, p. 618.
Woodruff v. U. S. 58 F. 767, p. 92.
Woerheider v. Jones, 199 F. 535, p. 125.
Woodman v. Bailey, 183 S. W., 107, p. 17.
Woods v. U. S., 174 F. 651, p. 606.
Wright v. U. S. 108 F. 805, p. 371.
Wright v. Henkel, 190 U. S. 62, p. 28.

Y.
Yeates v. U. S., 254 F. 60, p. 248; 635.
Ye Ging v. U. S., 190 F. 270, p. 115.
Yet Yee, 192 F. 577, p. 115.
Yick v. U. S., 240 F. 60, p. 367.

Young v. Corrigan, 208 F. 431; 210 F. 442, p. 81; 249 F. 937.
Young v. U. S., 272 F. 967; 242 F. 788; 272 F. 967, p. 10; 241; 507; 636.
Youngblood v. U. S., 266 F. 795, p. 143; 282.
Youmans v. U. S., 264 F. 425, p. 88; 28.
Youtsey v. U. S., 97 F. 940, p. 127.

Zion Institute, etc., v. Hollister, 3 Utah 301, p. 267.

FEDERAL CRIMINAL LAW

CHAPTER I.

THE UNITED STATES CONSTITUTION.

§ 1. The U. S. Constitution — Supreme Law.

2. Arts. V, VII, III, I.

3. Source of Federal Law.

4. Republican Guaranties

4a. "Unreasonable" Charges, Unreasonable Searches, amendments to
Constitution, etc.

5. Infamous Crimes.

5a. Felonies — misdemeanors.
5b. Information.

6. Jeopardy.

6a. Identity of offense must be shown.
6b. Jeopardy Continued.

7. Witness against self.

7a. Witness against self — Continued: Cannot compel one to accept

a pardon.
7b. Incrimination, Continued.

8. Art. VI of Constitution as bearing on trial by Jury; Copy of

Indictment and Confronting by Witnesses.
8a. Guarantees as to jury and procedure.
8b. Continued.
8c. Continued.

9. Federal Courts controlled by Federal Statute only.
9a. No common Law jurisdiction. Federal Procedure.

§ 1. The United States Constitution — Supreme Law.
The Constitution of the United States provides in Sec-
tion 2 of Article VI., that, "The Constitution and the
laws of the United States which shall be made in pur-
suance thereof. ....'. shall be the supreme law of the land ;
the judges in every state shall be bound thereby, anything
in the Constitution or laws of any state to the contrary
notwithstanding. ' '

§ 2. Article V. of the Amendments to the Constitution
provides:

2 Federal Criminal Law Procedure.

"No person shall be held to answer for a capital or otherwise in-
famous crime, unless on a presentment or indictment of a grand
jury, except in cases arising in the land or naval forces or in the
militia when in actual service in time of war or public danger; nor
shall any person be subject, for the same offense, to be twice put
in jeopardy of life or limb; nor shall be compelled in any criminal
case to be witness against himself; nor be deprived of life, liberty,
or property, without due process of law, nor shall private property
be taken for public use without just compensation."

Article VI. of the Amendments provides:

"In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury of the state and dis-
trict wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and be informed of
the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel for his
defense."

By Article III. of the Constitution, the judicial power is
vested in a Supreme Court, and in such inferior courts as
Congress may establish.

In Section 8, Article I., Congress is authorized spe-
cifically to establish naturalization laws, uniform bank-
rupt laws, to coin money, to establish post-offices and
post-roads, to promote the progress of science and useful
arts, and to make all laws necessary and proper for carry-
ing into execution any of the powers vested by the Con-
stitution in the government of the United States, or in
any department or officer thereof.

§ 3. From these specific grants of power, as well as
from the power that is inherent in sovereignty to pass
such regulations as will conserve the liberties of the in-
dividual and the existence of the sovereignty, has come
the Federal criminal law.

The power to establish post-offices and post-roads must
necessarily include the power to preserve them after so
being established; the power to coin money, the power to
promote science and arts, and the power to make all laws
necessary to promote the general welfare of the govern-
ment is sufficient, when delegated by the people, for the
foundation of a code, by the enforcement of which the

The United States Constitution. 3

liberty, property, and life of individuals is taken through
the process of the Courts.

§ 4. There are certain well known guarantees of our
republican form of government that are in the Constitu-
tion, most of which appear in the respective Constitutions
of the various states. These guarantees are:

(1) The privilege of the writ of habeas corpus shall
not be suspended, unless when in cases of rebellion or
invasion, the public safety may require it. (Section 9,
Article I., Paragraph 2.)

(2) No bill of attainder or ex post facto law shall be
passed. (Sec. 9, Art. I., Par. 3.)

(3) The trial of all crimes, except in cases of impeach-
ment, shall be by jury; and such trials shall be held in
the state where the said crimes shall have been com-
mitted; but when not committed within any state, the
trial shall be at such place or places as the Congress may
by law have directed. (Sec. 2, Art. III., Par. 3.)

(4) No person shall be convicted of treason, unless
on the testimony of two witnesses to the same overt act,
or on confession in open Court. (Sec. 3, Art. III., Par.
1.) The Congress shall have power to declare the pun-
ishment of treason, but not attainder of treason shall work
corruption of blood or forfeiture, except during the life
of the person attained. (Sec. 3, Art. III., Par. 2.)

(5) The citizens of each state shall be entitled to all
the privileges and immunities of citizens in the several
states. (Sec. 2, Art. IV., Par. 1.) A person charged in
any state with treason, felony, or other crime, who shall
flee from justice and be found in another state, shall, on
demand of the executive authority of the state from
which he fled, be delivered up, to be removed to the state
having jurisdiction of the crime. (Sec. 2, Art. IV., Par.

2.)

(6) The right of the people to be secure in their per-
sons, houses, papers, and effects, against unreasonable
searches and seizures shall not be violated; and no war-
rants shall issue but upon probable cause, supported by
oath or affirmation, and particularly describing the place
to be searched and the persons or things to be seized

4 Federal. Criminal Law Procedure.

(Amendment IV.) Amendment V. guarantees that no
person shall be held to answer unless upon presentment
or by indictment, and that no person shall be twice put
in jeopardy of life or limb, nor compelled in any criminal
case to be a witness against himself, nor be deprived of
life, liberty, or property, without due process of law;
and Amendment VI. guarantees speedy trial in the prop-
er jurisdiction, that he shall be confronted with the wit-
nesses, be represented by counsel, and himself, entitled
to process for witnesses.

(7) Amendment VIII. provides excessive bail shall
not be required, nor excessive fines imposed, nor cruel
and unusual punshment inflicted.

§ 4a. While power to punish for contempt committed
in the presence of the court, existing within the limits
of and sanctioned by the Constitution, is not controlled
by the limitations of the Constitution as to modes of ac-
cusation and methods of trial generally safeguarding the
rights of the citizen, judicial authority is not exempt
from Constitutional limitations; the great and only pur-
pose of the power being to secure judicial authority from
obstruction in the performance of its duties to the end
that means appropriate for the preservation and enforce-
ment of the Constitution may be secured. Ex parte Hudg-
ings, 39 Supreme Court Eeporter, 337.

An amendment to the Constitution is adopted in the
Constitutional way and the Secretary of State cannot in-
vestigate the truth of such amendment. Ratification, and
not proclamation, governs, hence mandamus as to the
Secretary of State does not lie. U. S. vs. Colby, 265 Fed.,
998.

A violation of Constitutional provisions presumes in-
jury and such injury need not be shown. Davis vs. U.
S., 247 Fed., 394.

A statute which declares it to be unlawful to make an
unreasonable charge for an article, violates the Constitu-
tional provision which declares that the accused shall be
informed of the nature and cause of accusation. Lam-
born vs. U. S. Attorney, 265 Fed., 944; U. S. vs. Bernstein,
267 Fed., 295; Contra, Weed vs. Lockwood, 266 Fed., 785,

The United States Constitution. 5

but the Supreme Court settled the conflict in 1921 in 41
Sup. Ct. Rep. 298, holding that the Lever Act, over which
most of these decisions arose, was unconstitutional so far
as the matter now being discussed is concerned. II. S. v.
Peoples, 217 F. 790.

The meaning of the words "two witnesses," as con-
tained in Section 3, of Article 3, relating to the crime of
treason, is that it is necessary to produce two direct wit-
nesses to the whole overt act; and while it may be pos-
sible to piece bits together of the overt act, yet every
part must have the support of two oaths, and hence con-
viction cannot be had on the testimony of one witness
together with circumstantial evidence, though it was
well-nigh conclusive. U. S. vs. Robinson, 259 Fed., 685.

Whatever may have been the slight vacillation of the
courts in the matter of the violation of that portion of
the constitution which relates to unreasonable searches
and seizures, it is now determined that there may be no
search warrant issued unless the court is furnished with
facts under oath and premises cannot be searched by
merely curious officers; such searches may be made only
when felonies are presently prosecutable and cannot be
made to discover whether there is a conspiracy to do
some unlawful thing. Veeder vs. U. S., 252 Fed., 414. _

An affidavit for search warrant is insufficient which
does not state facts, and every agent cannot give consent
to an illegal search. In re Tri-State, 253 Fed., 605.

An illustration of what is an "unreasonable" search
will be found in U. S. vs. Premises, 246 Fed., 185.

The rule with reference to evidence that is secured
by unreasonable searches and seizures is, that such evi-
dence must be returned upon request -..that a conviction
secured upon such evidence or through such evidence
must be reversed. U. S. vs. Kraus, 270 Fed., 578; Flagg
vs. U. S., 233 Fed., 481; IT. S. vs. Abrams, 230 Fed., 313;
IT. S. vs. Friedburg, 233 Fed., 313; Ex parte Jackson,
263 Fed., 110.

And evidence so taken will not support an indictment?"
IT. S. vs. Bush, 269 Fed., 455.

A void warrant is no protection against a charge of
false imprisonment, or for an invasion of the home in

6 Federal Criminal. Law Procedure.

violation of the constitution. Keichman vs. Harris, 252
Fed., 371; U. S. v. Kelih, 272 Fed., 484.

A defendant cannot be required to produce private pa-
pers before a grand jury, as this would be compelling
him to give evidence against himself. U. S. vs. Brasley,
268 Fed., 59.

See also post sections on admissibility of documentary
evidence secured illegally, and search warrants.

The Supreme Court, in the case of Gouled vs. U. S.,
41 Sup. Ct. Eep., 261, and the case or Amos vs. U. S., 41
Sup. St. Rep., 266, held, that evidence illegally taken by
improper searches and seizures must be returned and
conviction set aside, if secured thereon. But see Miggins
vs. U. S., 272 Fed., 41.

See also U. S. vs. Maresca, 266 Fed., 713, for a defini-
tion of probable cause, application for return of property,
and the ordering of the return of property unlawfully
taken. See also U. S. vs. Eay, 275 F., 1004, as to insuffi-
ciency of affidavit based on belief and not facts.

An officer of a court having in his possession or under
his control property illegally seized, may be ordered to
return such property if it was unlawfully taken through
search and seizure.

A subpoena duces tecum is not an unreasonable search
and seizure when directed to the officer of a corporation
amenable to such process. U. S. vs. Watson, 266 Fed.,
736.

A bail bond that has been forfeited may be remitted
under Section 1020. U. S. vs. Jacobson, 257 Fed., 760.
See also U. S. vs. Smaller, 275 F. 1011.

An administrative officer who violates the law and the
constitution in searching premises and seizing property
may not be ordered by a court, which does not have then
before it a justiciable case, to return the same. In re
Weinstein, 271 Fed. 5, also 271 Fed., 673. The rights of
such a sufferer would have to be secured through an in-
dependent action brought by him for damages for the
trespass and for such other relief as he might petition
the court for.

The United States Constitution. 7

Papers which are in the possession of the prosecuting
officer to be used in a criminal prosecution, which have
been illegally seized, must, upon application, be returned,
and if the trial court should refuse to return them they
would be incompetent evidence at the trial. Weeks vs.
U. S., 232 U. S., 383. In Silverthrone Lumber Company
vs. U. S., 251 U. S., 385, the supreme court went further
and held that the prosecuting officer might not make any
use whatsoever of evidence so obtained.

Deportation proceedings are administrative and officers
who make illegal searches and seizures, even though such
officers be from the department of justice, they may not
be required to return such property by a court which
does not have the case before it. In re Weinstein, 271
Fed., 5.

Leave to file an information will be refused by the
court where the evidence against the defendant was pro-
cured by an unlawful search. U. S. vs. Quaritius, 267
Fed., 227.

Seizure of liquor from a private residence prior to
the taking effect of constitutional amendment, 18, on a
search made without a warrant by officers armed with
shot-guns and pistols, although there was "an invitation
to enter and consent to the seizure," held unlawful, and
the owner of the liquor held entitled to its return. U. S.
vs. Marquette, 271 Fed., 120; IT. S. vs. Kelih, 272 Fed.,
484, even orders return of still when so unlawfully taken.

A diary kept by a defendant which came lawfully into
the possession of the government, even though, the de-
fendant had made a motion to have the same returned
to him, is usable in evidence. Pedersen vs. U. S., 271
Fed., 187. Self incrimination, see Elwell, vs. U. S., 275 F.
775.

Articles illegally seized will not be impounded, but
must be returned, even though contraband. U. S. vs.
Porazzo, 242 Fed., 276. See sec. b. See also U. S. vs.
Lydecker, 275 F. 977.

Indictment for resisting officer who is searching, and
seizure must show such actions constitutional, otherwise
it is defective. U. S. vs. Hallowell, 271 Fed., 795.

8 Federal Criminal Law Procedure.

Search warrant and affidavit for different premises
held invalid. U. S. vs. Armstrong, 275 Fed., 506.

A plea in abatement interposed by the defendant on
the ground that the indictment was procured by the
wrongful use before the grand jury of evidence which
was obtained by an illegal search and seizure of private
papers and documents may be overruled by the trial
court, if he considers it just to overrule it, without fear of
reversal since Sec. 1011, R. S. U. S. as amended, reads
as follows, "there shall be no reversal in the Supreme
Court or in a circuit court upon a writ of error, for
error in ruling any plea in abatement, other than a plea
to the jurisdiction of the court, or for any error in fact."
Mounday vs. U. S., 225 Fed., 965.

In U. S. vs. Mitchell, 274 Fed., 128, Judge Dooling
reviews the prohibition statutes and the Constitutional
amendment and the search warrant statutes, and then
says "it is not merely a pro forma matter, but one of
utmost importance, that search warrants should be prop-
erly issued in the first instance. They should not be
lightly applied for, nor lightly issued, as they trespass
upon the most important rights of the people."

A search warrant to search a private dwelling should
never be issued until the issuing officer has asked "what
evidence have you that this place is being used for the
unlawful sale of intoxicating liquor?", and has received
evidence of such transgression. The 4th Amendment to
the Constitution is far more important to the people than
the conviction of one who has violated the prohibition
law.

Evidence illegally obtained is inadmissible and in the
absence of other evidence a directed verdict for the de-
fendant is proper. Holmes vs. U. S., 275 Fed., 49. Also
see 0 'Conner vs. Patter, 276 F. 32; Berry vs. U. S., 275 F.
680.

Evidence obtained by unlawful search is inadmissible
and where such evidence is liquor it may not be intro-
duced in evidence nor may the testimony of its finding
and seizure be introduced, and this, even though the seiz-

The United States Constitution. 9

ing officers are a sheriff and his deputies instead of United
States officers. Dukes vs. U. S., 275 Fed., 142.

§ 5. Infamous Crimes as Meant in Art. V. of Constitu-
tion.— In re Classen, 140 United States, 205, is the rank-
ing Supreme Court decision as to what is an infamous
crime, and that case hold that a crime which is punish-
able by imprisonment in a state prison or a state peni-
tentiary, is an infamous crime, whether or not the accused
is sentenced to hard labor; and the determination of the
question rests upon what the statute provides, and not
upon what the judge imposes. See also Fitzpatrick vs.
United States, 178 U. S., 307; McKnight vs. United
States, 113 Fed., 452; Good Shot vs. United States, 154
Fed., 258; Gritt Garritee vs. Bond, 102 Maryland, 383;
State vs. Nichols, 27 E. I., 83; United States vs. Wyrm,
9 Fed., 894; ex parte Wilson, 114 United States, 423;
Mackin vs. United States, 117 U. S., 351; ex parte Mc-
Clusky, 40 Fed., 74; Parkinson vs. United States, 121
U. S., 281; ex parte Bain, 121 U. S. 13, United States vs.
Cadwallader, 59 Fed., 679; United States vs. Dewalt, 128
U. S., 393.

Section 335 of the new Federal Criminal Code, in effect
January 1, 1910, contains this provision:

"All offenses which may be punished by death or imprisonment
for a term exceeding one year shall be deemed felonies; all other
offenses shall be deemed misdemeanors."

§ 5a. Section 1022 provides that all crimes and of-
fenses committed against the provisions of Chapter 7,
title Crimes, which are not infamous, may be prosecuted
either by indictment or by information filed by a district
attorney. It was held in U. S. vs. Wells Co., 186 Fed.,
248, that a prosecution for a violation of the Food &
Drugs Act, Section 2, 34 Stats. L. 768, for shipping adul-
terated food, wherein, upon conviction, a fine not exceed-
ing $200 for the first offense and for each subsequent
offense a fine not exceeding $300 or imprisonment not
exceeding one year, or both, in the discretion of the Court,
could be begun by information for the reason that the
offense charged was not a felony in that a defendant who

10 Federal Criminal Law Procedure.

may not be imprisoned in a penitentiary for more than
one year, has not committed a felonious offense.

All offenses, therefore, which may not receive punish-
ment in excess of one year, are misdemeanors and no
convicted defendant may be sent to a penitentiary unless
his punishment exceeds one year.

§ 5b. The court will refuse leave to file an informa-
tion where the evdience against the defendant was pro-
cured by an unlawful search. U. S. vs. Quaritus, 267
Fed., 227.

While it is the established practice for the prosecuting
officer to secure leave of the court to file an information
yet in the absence of a challenge, filing without permis-
sion is not prohibited by the constitution. The informa-
tion must allege that such permission has been granted.
U. S. vs. Simon, 248 Fed., 980.

A violation of the act of may 18, 1917, which is com-
monly known as the Selective Draft Act, may be in-
stituted by information. U. S. vs. Nelson, 254 Fed., 889.

The Fifth Amendment to the Constitution provides,
"no person shall be held to answer for a capital or other
infamous crime, unless on presentment or indictment by
a grand jury, except in cases arising in the land or naval
forces or the militia, when in actual service in time of
war or public danger." Section 5541 of the Eevised Stat-
utes of the United States provides, that where any per-
son convicted of an offense against the United States is
sentenced for a period longer than one year, the court
by which the sentence is passed may order the sentence
to be served within any jail or penitentiary within the
district or state where such court is held, the use of a jail
or penitentiary is allowed by the Legislature of the state
for that purpose.

In the case of Blanc vs. U. S., 258 Fed., 921, it was
held that prosecution under the draft act for keeping
a house of prostitution could be begun by information.
Also Hunter vs. U. S., 272 Fed., 235.

Keeping whiskey for illegal sale under National Pro-
hibition Act may be prosecuted by information. Young
rs. U. S., 272 Fed., 967.

The United States Constitution. 11

§ 6. Jeopardy. — Each American citizen, owing allegi-
ance to two governments, state and national, is the bene-
ficiary of both, and also liable to the pains and penalties
of both. He that sells whiskey must comply with both
state and federal laws, and a conviction or acquittal un-
der the laws of either is no impediment or safeguard to
prosecution from and by the other. One who sells whis-
key without taking out either state or federal license is
liable to prosecution by both governments.

The Courts have held, in re Boggs, 45 Federal, 475; U.
S. vs. Barnhart, 22 Federal, 290; Fox vs. Ohio, 5 Howard,
U. S., 434; Moore vs. Illinois, 14 Howard, U. S., 20, that
the jeopardy clause in the Federal Constitution is not a
limitation upon any state government, but I do not under-
stand such holding to mean that if one were put in jeop-
ardy twice by the state machinery, that he would thereby
be precluded from raising the question. While the jeop-
ardy clause in the Federal Constitution was doubtless
intended to relate to trials in the Federal courts, I am
sure that the constitutional guarantee could be success-
fully relied upon by a citizen of a state, if the effort were
made to place him in jeopardy twice by the state govern-
ment.

It will be borne in mind that a former conviction or ac-
quittal must be pleaded, and the protection is as ample
whether the former trial resulted in a conviction or an ac-
quittal. United States vs. Wilson, 7 Peters, 159; United
States vs. Ball, 163 U. S., 662; ex parte Glenn, 111 Fed-
eral, 261.

§ 6a. Identity of Offense Must be Shown. — Louie vs.
U. S., 218 Fed., 36.

§ 6b. Jeopardy Continued. — A conviction by a court-
martial prevents a conviction by the United States Dis-
trict Court. U. S. vs. Block, 262 Fed., 205.

A conviction in a state court will sometimes bar one in
the federal court, was held by the district court in the
case of U. S. vs. Porria, 255 Fed., 172. Where the de-
fendant had been convicted in a state court on an indict-
ment charging him with receiving and aiding in conceal-
ing stolen property, such property being the same as that

12 Federal Criminal Law Procedure.

which the federal indictment alleged he had stolen from
an interstate commerce shipment and in the second connt
of which he was charged with having it in his possession,
such federal indictment was barred by the state convic-
tion. The court quotes Sec. 8604, U. S. Statutes, 1916, ' ' a
judgment of conviction or acquittal on the merits under
the laws of any state shall be a bar to any subsequent
prosecution "

See also Gavieres vs. U. S., 220 U. S., 338; 55 law edi-
tion, 489.

It is not jeopardy to convict one who broke open a post-
office for both larceny and breaking and entering. Mor-
gan vs. Sylvester, 231 Fed., 886.

It is not a denial of "due process" as guaranteed by
the fifth and sixth amendments to withdraw a case and
re-submit it. Lovata vs. State of New Mexico, 242 U. S.,
199.

The changing of a judge, by the consent of the defend-
ant, and the continuance of the trial under the new judge,
which proceedings were subsequently set aside as nul-
lities, would not constitute jeopardy. Freeman vs. U. S.,
237 Fed., 815.

Conviction under State Statutes not a bar to prosecu-
tion under Federal Statute for same act. U. S. vs. Rota-
gczak, 275 Fed., 558.

An acquittal by reason of a variance is not jeopardy,
was held, in U. S. vs. Phelan, 250 Fed., 927.

A conviction of murder in the first degree and a "with-
out capital punishment," recommendation by the jury, is
not an acquittal of first degree murder, and, upon another
trial and conviction the defendant may be given a death
sentence. Stroud vs. U. S., 251 U. S., 15; 40 supreme
court reporter, 50. A prosecution of a stockholder and
director of a corporation is not a bar to subsequent pro-
ceedings to forfeit the oleomargarine. U. S. Manufactur-
ing Company, 240 Fed., 235.

A prosecution on a defective indictment would not
bar a subsequent prosecution, where there was no ac-
quittal on the merits, when the court, upon the defects
being called to his attention, after the close of the testi-

The United States Constitution. 1

• >

niony and the arguments to the jury, discharged the jury.
Simpson vs. U. S., 229 Fed., 940. '

A plea of former acquittal should establish identity
of offenses and when such identity is established all of
the elements that enter into the original charge are barred
to further prosecution. U. S. vs. Clavin, 272 Fed., 985.

A test by which is determined a plea of former jeop-
ardy is whether if what is set out in the second indict-
ment had been proved under the first it would have sup-
ported a conviction, and, if it would, the second cannot
be maintained. Manning vs. U. S., 275 Fed., 29.

§ 7. Witness Against Self. — That clause of Amend-
ment V., which declares that no person shall be compelled
in any criminal case to be a witness against himself, is
not limited to the defendant. It is a privilege that can
be claimed by any witness. Counselman vs. Hitchcock,
142 U. S., 562; U. S., vs. Collins, 145 Federal, 711; in re
Hess, 134 Federal, 111; United States vs. Praeger, 149
Federal, 484; Hale vs. Henkel, 201 U. S., 67; Jack vs.
Kansas, 199 U. S., 381; Burrell vs. Montana, 194 U. S.,
578; Ballman vs. Fagin, 200 U. S., 195; Edelstein vs.
United States, 149 Federal, 642; United States vs. Simon,
L46 Federal, 92; in re Briggs, 135 N. C, 122; U. S. vp
Price, 163 Fed., 904.

There is nothing more barbarous than to compel dis-
closures which will degrade and convict the person so
compelled. Voluntary appearance no violation or depri-
vation of constitutional guarantee. Pendleton vs. U. S.,
216 U. S., 305. See also sec. 20. See also Elwell vs. U. S.,
275 F. 775.

Section 860 of the Revised Statutes of the United States
provides that no pleading of a party nor any discovery or
evidence obtained from a party or a witness by means of
a judicial proceeding in this or any foreign country shall
be given in evidence or in any manner used against him
or his property or his estate in any Court of the United
States in any criminal proceeding or for the enforcement
of any penalty or forfeiture. An interesting case, show-
ing the extent of the doctrine and the care with which
the Courts have preserved it, is McKnight vs. the United

34 Federal Criminal Law Procedure.

States, 115 Federal, 981. In that case, the Circuit Court
of Appeals for the Sixth Circuit condemned as unconsti-
tutional a demand by the District Attorney of the de-
fendant for the original of a paper in evidence.

As to immunity from prosecution because of testimony
before Grand Jury, see U. S. vs. Heike, 175 Fed., 852.
When such is plead in bar burden is on the defendant, for
discussion thereon see same case.

§ 7a. Continued. — See Section 39a. Section 860 of the
Revised Statutes was repealed by the Act of May 7, 1910,
Chapter 216, 36 Stats. L. 352, and the protection original-
ly afforded by it comes now directly from the fourth and
fifth amendments to the Constitution of the United States.
In fact Section 860 was narrower in its protection than
are the amendments. American Lithographic Co. v.
Werckmeister, 221 U. S., 603.

The Supreme Court of the United States in re Harris,
221 U. S., 274, determined in substance that a bankrupt
is not deprived of his Constitutional right not to testify
against himself by an order requiring him to surrender
his books to the duly authorized receiver.

This decision was made in the face of facts which were,
in substance, that the bankrupt had declined to testify
concerning a certain written statement of his assets and
liabilities, on the ground that it might tend to incriminate
him, and he also refused to produce his books and made
oath that the books contained evidence that might tend
to criminate him. The bankrupt relied upon the fifth
amendment and Counselman v. Hitchcock in 142 U. S.,
547, but the Court said "If the order to the bankrupt
standing alone infringed his Constitutional rights, it
might be true that the provisions intended to save them
would be inadequate and nothing short of statutory im-
munity would suffice. But no Constitutional rights are
touched. The question is not of testimony, but of sur-
render— not of compelling the bankrupt to be a witness
against himself in a criminal case, present or future, but
of compelling him to yield possession of property that he
no longer is entitled to keep. If a trustee had been ap-
pointed, the title to the books would have vested-in him

The United States Constitution. 15

by the express terms of Section 70 and the bankrupt could
not have withheld possession of what he no longer owned
on the ground that otherwise he might be punished.
That is one of the misfortunes of bankruptcy if it follows
crime. The right not to be compelled to be a witness
against one's self is not a right to appropriate property
that may tell one's story. As the bankruptcy court could
have enforced title in favor of the trustee, it could en-
force possession ad interim in favor of the receiver,
Section 2. In the properly careful provision to protect
from use of the books in aid of prosecution, the bankrupt
got all that he could ask."

In the above case the Supreme Court merely decides
that a bankrupt may not retain possession of his books,
the title to which is vested in his trustee, on the ground
that they contain matters which would subject him to
criminal prosecution, but the decision does not lessen in
any degree the protection of the amendments of the Con-
stitution about which we are talking. In other words,
having secured such books, from which the sovereignty
would gather data to support a prosecution against the
bankrupt, such sovereignty would be precluded from the
use of such testimony on the ground that the defendant
was forced to produce the same.

In U. S. vs. Bhodes, 212 Fed., 518, it was held that the
law is well settled that the Constitutional provision that
no man shall be compelled to be a witness against himself
enables a person, under ordinary circumstances, to refuse
not only to give oral testimony, but to produce his books
and papers, on the ground that they would tend to in-
criminate him. Boyd vs. U. S., 116 U. S. 616. And it is
held that a bankrupt, as well as any other person, is
entitled to the protection of such Constitutional provision.
In re Canter & Cohen, 117 Fed., 356; in re Dow's Estate,
105 Fed., 889. But evidence proposed to be used in a
perjury prosecution against a bankrupt secured by the
force of the bankrupt statute is not permitted by law to
be so used, under the Constitutional provision referred
to, as well as bv that of the bankrupt law. In re Harris,
164 Fed. 292.

16 Federal Criminal, Law Procedure.

Sub-division 9 of Section 7 of the Bankrupt Act of 1898
and the immunity afforded by it are not applicable to a
prosecution for perjury committed by a bankrupt when
examined under it. The Constitutional guaranty of the
fifth amendment does not deprive the • law-making au-
thority of the power to compel the giving of testimony,
even though the testimony, when given, may serve to in-
criminate the witness, provided complete immunity be
accorded. The sanction of an oath and imposition of
punishment for false swearing are inherent parts of the
power to compel giving testimony and are not obviated
by immunity as to self-incrimination. The immunity
afforded by the fifth amendment relates to the past; it
is not a license to the person testifying to commit perjury
either under the provisions as to the giving of testimony
in Section 860 of the Revised Statutes or of the Bank-
ruptcy Act of 1898. The provisions in the Bankruptcy
Act compelling testimony do not confer an immunity wid-
er than that conferred by the Constitution. Glickstein
vs. U. S., 222 U. S., 139.

The Glickstein case was a prosecution for perjury com-
mitted by the defendant upon his examination before the
first meeting of his creditors, and the proposition that
the Supreme Court announces is merely that Congress
had a right to compel the bankrupt to disclose all matters
relating to his business, but to disclose them truthfully,
and if he saw fit to perjure himself upon such disclosure,
he could be made to suffer the penalty of a prosecution
for perjury. Had he testified upon such forced examina-
tion about facts that were the truth, such testimony could
not thereafter have been used against him in either a
civil or a criminal cause for the reason that the testi-
mony was not voluntary.

To the same effect is the decision in Dreier vs. U. S.,
221 U. S., 394, which was a contempt proceeding to re-
quire Dreier to produce certain books of a corporation
which were in his possession and which he refused to
produce on the ground that they would incriminate him.
The court held that Dreier was not entitled to refuse the
production of the corporate records. By virtue of the

The United States Constitution. 17

fact that they were the documents of the corporation in
his custody and not his private papers, he was under ob-
ligation to produce them when called for by the proper
process. See also Wilson vs. U. S., 221 U. S., 361; Hale
v. Henkel, 201 U. S., 43.

In Cameron vs. U. S., 192 Fed., 548, the Circuit Court
of Appeals for the Second Circuit held that Section 860
shall not exempt a bankrupt from prosecution for per-
jury in giving evidence in his bankruptcy proceedings,
nor does it prevent the introduction, in support of such
a charge, of the false statement and so much of the other
part of the accused's testimony as may be necessary to
make the charge intelligible.

In Powers vs. U. S., 223 U. S., 303, the Supreme Court
held that when the accused voluntarily becomes a witness
in his own behalf before a commission it is not essential
to the admissibility of his testimony that he be first
warned that what he says may be used against him and
it is of no avail, after he has testified voluntarily and un-
derstandingly, to thereafter make a motion to exclude his
testimony by way of a privilege under the fifth amend-
ment, because the defendant voluntarily testifying waives
his privilege and may be fully cross-examined as to the
testimony given.

The President cannot compel one to accept a pardon. A
pardon to be effective must be accepted, and the tender
of a pardon does not destroy the privilege of a witness
against self incrimination. He may reject the pardon
and refuse to testify on the ground that his testimony
may have an incriminating effect. Burdick vs. U. S.,
236 U. S., 79, overruling U. S. vs. Burdick, 211 Fed., 493.

Interstate Commerce Commission has power to compel
attendance and testimony of witnesses, and witness has
immunity under Act February 11, 1893, even though
government does not inquire of him whether he claims
privilege. This question raised on demurrer. U. S. vs.
Skinner, 218 Fed., 871.

§ 7b. This clause of the constitution is operative in
civil as well as criminal cases. Woodmen vs. Bailev, 183
S. W., 107.

18 Federal Criminal Law Procedure.

A notice to a defendant in a criminal case to produce
documents is not permissible. Hanish vs. U. S., 227 Fed.,
584; Green vs. U. S., 266 Fed., 779.

A witness before a federal grand jury cannot urge ob-
jections of incompetency and irrelevanvy to questions
which a party might urge, and, he may be required to
testify, subject only, to the constitutional exemptions
against self incrimination. Blair vs. U. S., 250 U. S., 273;
39 Sup. Ct. Eep., 468.

The danger of self incrimination must be real. Mason
vs. U. S., 244 U. S. 362. Whether a witness must answer
is determinable by the trial court in the exercise of its
sound discretion and unless there is reasonable ground,
distinct from a remote or speculative possibility, to ap-
prehend that a direct answer may prove, dangerous to
the witness, his answer should be compelled.

The fifth amendment is violated by the white slave act
which requires certain reports. U. S. vs. Loinbardo, 228
Fed. 980.

Where testimony vital to conviction is given under du-
ress, no conviction based thereon will be permitted to
stand. Ford vs. U. S. 259 Fed. 552.

A district attorney has no authority to make an agree-
ment with a defendant where the case is not within any
statue. U. S. vs. Ford 99 U. S. 594.

A person charged as a defendant may be in such con-
dition of duress that the court may infer that he was
"compelled," as the word is used in the constitution,
from the very fact that he is brought before the jury
and thereupon gives evidence. U. S. vs. Kimball, 117
Fed. 161.

Immunity by reason of having testified before a grand
jury may or may not follow, since one may claim his priv-
ilege, and his ignorance of such right would not neces-
sarily entitle him to claim immunity. U. S. vs. Bryant,
245 Fed. "682.

A compulsory attendance before a pension examiner
saves a witness from prosecution because immunity fol-
lows. Section 860 of the Revised Statutes offering a
certain sort of immunity is not as broad as the constitu-

The United States Constitution. 19

tional protection afforded by the fifth amendment, and
the witness is not compelled to answer. U. S. vs. Bell,
81 Fed. 830.

§ 8. Amendment VI. of the Constitution means a
trial by a common law jury, which consisted of twelve
men, Maxwell vs. Dow, 176 U. S. 586; Thompson vs.
Utah, 170 U. S., 349, and to such a hearing as the terms
and rules of the Court permit, Beavers vs. Haubert, 198
U. S., 86, and to such an explanation of the offense
charged as to afford the defendant ample pj'otection
from any subsequent prosecution and to enable him to
make his defense in the present one, United States vs.
Cruickshank, 92 U. S., 557; United States vs. Martin-
dale, 146 Federal. 291; United States vs. Green, 136
Federal, 641; Fitzpatrick vs. United States, 178 U. S.,
309; Terry vs. United States, 120 Federal, 486; Milby
vs. United States, 149 Federal, 641; Bartlett vs. United
States, 106 Federal, 885. It is not necessary, however,
to furnish a copy of the indictment to the defendant,
United States vs. Vanduzee, 140 U. S., 173; United
States vs. Jones, 193 U. S., 530; Balliet vs. United States,
129 Federal, 689, unless the prosecution is for treason
or other capital offense, in which event Section 1033 of
the Revised Statutes of the United States provides the
procedure, which includes a copy of the indictment for
the defendant. The only exceptions to the guarantee
that the defendant shall be confronted with the witness
against him are the introduction of dying declarations
and the introduction of the testimony of a deceased wit-
ness who was sworn upon a former trial, and the testi-
mony taken in stenographic form, such testimony to be
supported by the oath of the stenographer, Kirby vs.
United States, 174 U. S., 61; West vs. Louisiana, 142
Federal, 4; Flynn vs. People, 222 Illinois, 309; Robert-
son vs. Baldwin, 165 U. S., 281; Mattox vs. United States,
156 U. S., 240; Motes vs. United States, 178 U. S., 471.

Section 878 of the Revised Statutes of the United
States authorizes the issuing of process for indigent de-
fendants when such defendants make affidavit in ac-
cordance therewith, but a rule of the Court limiting such
witnesses to four is not unreasonable.

20 Federal Criminal Law Procedure.

§ 8a. A defendant cannot consent to a trial by less
than twelve jurors in Texas in a state court in a felony
case and to allow the defendant to do so is fatal error.
Dunn vs. State, 224 S. W. 893.

Since the order for the drawing of jurors may be made
by the judge in chambers it is, therefore, valid for a
judge to make an order for the drawing of jurors in a
district other than the district in which the jurors are
to be drawn. Apgar vs. U. S. 255 Fed. 16.

The drawing of the jury must be done in accordance
with the statute and an assistant attorney, who does
what the clerk ought to do makes the drawing illegal.
U. S. vs. Murphy, 224 Fed. 554. The act was amended
on February 3, 1917, so as to allow a deputy clerk to
draw the jury as well as the clerk.

A marshal is presumed to be without favor but when
he hires a private detective out of his own funds he is
not indifferent. Johnson vs. XL S. 247 Fed. 92.

The duties of selecting person to act as a grand or petit
juror must be performed by the person authorized by
the statute to make such selection and cannot be dele-
gated to courts; and when the clerk did not participate
in the selection of the jury as required by 36 Stat., at
Sec. 1164, the error was prejudicial and an indictment
found by a grand jury so directed must be set aside as
the error is not a mere matter of form. Dunn vs. U. S.
238 Fed. 508.

Judicial Code 277, providing that ''jurors" shall be
returned from such parts of the district from time to
time as the court shall direct, so as to be most favorable
to an impartial trial, and so as not to incur unnecessary
expense or unduly burden the citizens of any part of the
district with such service, held, applicable to grand
jurors as well as petit jurors. Williams vs. U. S., 275
Fed. 129.

§ 8b. In section 8, above, are cited cases which de-
fine and declare exceptions to the constitutional guaran-
tee that the defendant shall be confronted with the wit-
ness; to that list may now be added the case of Bergin
vs. State, 188 S. W. 423, where it was held that the testi-

The United States Constitution. 21

mony of one given at a former trial with due oppor-
tunity for cross examination is admissible on a subse-
quent trial after death of such witness.

§ 8c. In the federal court a copy of the indictment^
in cases other than capital and treason may not be fur-
nished to the defendant by the government; a rule of '
the district attorney's office, denying a list of the jury
until two days before trial in all cases less than capital
Ts^sustained in the case of Hendrickson vs. U. S. 249
Fed. 34.

§ 9. It is well for the attorney whose practice has
been largely confined to the state courts to ever bear in
mind that the rules and forms of practice and methods
of pleading that are adopted by Federal Statute for pro-
cedure in the Federal Courts, do not apply to any ex-
tent in the trial of Federal criminal law. It is entirely
immaterial what the state statutes provide with refer-
ence to procedure in criminal cases, so far as the Fed-
eral Courts are concerned. The Federal statutes alone
control in criminal matters. In Logan vs. United States,
144 U. S., 301, the Supreme Court held that even Section
858 of the Revised Statutes of the United States, which,
in its concluding paragraph, seems to program the Hue
of competency for witnesses in the Courts of the United
States did not relate to criminal trials or witnesses in
criminal cases. The Court in that case said:

"For the reasons above stated the provisions of Section 858 of the
Revised Statutes, that 'the laws of the state in which the court is
held shall be the rules of decision as to competency of witnesses in
the Courts of the United States, in trial at common law and in equity
and admiralty,' has no application to criminal trials; and, therefore,
the competency of witnesses in criminal trials in the Courts of the
United States is not governed by a statute of the state."

Criminal cases in the Federal courts are governed and
controlled by Federal statutes and Federal decisions,
and state statutes and state decisions are inapplicable.
Jones vs. United States, 162 Fed., 419; United States vs.
Reid, 12 Howard, 363; Starr vs. United States, 153 U.
S., 625; Jones vs. United States, 137 U. S., 211; Sim-

22 Federal Criminal, Law Procedure.

mons vs. United States, 142 U. S., 148; Lang vs. United
States, 133 Fed. 204; U. S. vs. Davis, 103 Fed. 457; U. S.
vs. Hall, 53 Fed., 353; U. S. vs. Stone, 8 Fed. 239.

§ 9a. There is no common law jurisdiction in federal
courts. Oliver vs. U. S. 230 Fed. 971.

The federal courts in criminal procedure do not fol-
low the practice of the courts of the states in which they
sit. Myres vs. U. S. 256 Fed. 779.

State statutes relating to criminal procedure have
no application to prosecutions in the Federal courts. U.
S. vs. Bopp, 232 Fed. 177.

CHAPTER II.

GENERAL PROVISIONS APPLICABLE TO THE PRACTICE.

§ 10. Judicial Code and the Courts.
10a. Trial— public.
10b. TriaWPublic.
10c. Constitutional Trial.

11. U. S. Commissioners.
11a. Contempts.

lib. Contempt Defined.

lie. Contempt pendente lite.

lid. Illustrative Contempts.

12. Prosecution Begun by Indictment.
12a. Illustrations of Information Beginnings.

13. Grand Jury and Indictment.

13a. Grand Jury and Indictment — Continuea.

13b. Copy of the Indictment.

13c. Evidence before Grand Jury.

13d. Motion to Quash Indictment or Other Dilatory Plea.

13e. Information.

13f. Politics of grand jury; District found in, etc.

13g. Stenographic notes; Objections to indictment.

13h. Illegal evidence before grand jury.

14. Preliminary Proceedings.
14a. Warrant to Issue — When.

14aa. Warrant to issue, When — Continued : Also notary Unknown

in U. S. Law.
14b. Question of Indictment on Removal.
14bb. On Removal.
14c. Arraignment.

15. Bail Bond — Recognizance — Action thereon.
15a. Bail During Trial.

15aa. Bond, forfeiture, relief.

16. Challenges.

16a. Consolidation of Indictments.

16aa. Consolidation of indictments — Continued.

16b. Impeachment of Verdict by Juror.

17. Indictment and Return of Same.
17a. Endorsement on Indictments.

17aa. Indictment — Place of finding: Absence of Judge: Counts.

18. Consolidation of Indictments.

19. Question of Duplicity in Indictment.
19a. Duplicity — Continued.

20. Confessions.

20a. Confessions — Continued.
20b. Confession — Continued.

(23)

24 Federal Criminal Law Procedure.

§ 21. Admissibility of Documentary Evidence Secured Illegally.
21a. Method for Recovery of Illegally Secured Evidence.
21aa. Method for recovering illegally secured evidence, continued.
21b. Production of Documents.
21bb. Production of Documents, continued.

22. Comments or Improper Argument of District Attorney.

22a. Procedure When Improper Argument or Remarks are Made.
22b. Instances of Improper Remarks and of Remedies therefor.

23. Prosecuting Officer in Grand Jury Room; Limits of his

Expression.
23a. Misconduct — How raised.

24. Jury — Right of — Waiver — Necessity for Full Number — Illegal

to Try with Eleven.
24a. Comments by the Court.
24b. Comments and attitude of the court.

25. Care of Jury — Moral Weight of Verdict; Legal Weight of

Verdict; Newspapers with Jury — attempts to Influence Ver-
dict.

25a. Care of jury, continued.

25aa. Setting aside verdict.

26. Evidence of Good Character — Charge on Presumption Thereof.
^ 26a. Good Character Becomes a Fact.

26b. Charge on, Refused When.

26bb. Charge on good character.

26c. Proof of Other Offense.

26d. Proof of other offenses, Continued.

26e. Good character not presumed.

27. Instructions of the Court, whether Written or Oral, Special

Instructions.
27a. Instruction of the Court, Continued.
27b. Exceptions to Charge after Jury retired.
27c. Exception to Charge.

28. Opinion of Court — How Guarded.
28a. The Court not Mere Presiding Officer.
28b. The Court not a mere Presiding Officer.

29. Court Cannot Comment on Lack of Evidence — Presumption of

Good Character.

30. Further Limitations on Court.

31. Verdict as to Part of Counts.
31a. Return of Verdict.

32. Sentence and Correction Thereof.
32a. Sentence — Correction — Practice.
32b. Single Sentence, What is.

33. No Authority to Suspend Sentence.
33a. No authority to Suspend.

34. Correction of Sentence; Control of Court over Sentence after

Term; New Trial; Motion for, When to be Made; May be
Made in Court of Appeals; Null and Void Criminal Judgment;
Whether May be Corrected, and How.

General Provisions Applicable to the Practice. 25

§ 34a. Sentence not Absolutely Void; Resentencing.

35. Remission of Penalty on Forfeited Recognizance.
35a. Fine Abated by Death.

35b. Fine — Recovery, etc.

36. Bail After Affirmance.

36a. Bail — Amount — Manner of Trial.

36b. Bail Matter of Discretion and Matter of Right, When.

36c. Voluntary Giving of Bond no Defense to Surety Liability.

37. Severance — Separate Trials — Discretion of Court.

38. Habeas Corpus — Conclusion of Law Therein Instead of State-

ment of Facts.
38a. Habeas Corpus.
38b. Habeas Corpus not to be used as Writ Error.

39. Immunity under Commerce Act by Reason of Testimony.

39a. Immunity Governs Testimony by the Commissioner of Corpora-
tions; As Applied to the Fifth Amendment; As Applied to
Section 860; Duces Tecum Basis of.

40. Improper Person in Grand Jury Room.
40a. Improper Presence in grand jury Room.

40b. Hearsay Testimony Before Grand Jury — Stenographer Before
Grand Jury.

41. Private Prosecutor Unknown in Federal Courts.
41a. Assignments to District Attorneys.

42. Proof of Witness's Former Conviction.
42x. Proof of Witness, Former Connection.
42y. Evidence of Another Crime.

§ 10. Judicial Code and the Courts. — Article 3 of
the Constitution of the United States provides in sub-
stance that the judicial power of the United States shall
be vested in a Supreme Court and in such inferior courts
as Congress may establish. Passing by the courts of the
District of Columbia and the territorial courts there is
but one federal court in which indictments and infor-
mations may be lodged and tried, namely, the district
courts. Circuit courts were abolished by the Act of
March 3, 1911, which Act enlarged the jurisdiction of
the district courts, re-enacted the provisions relating to
the Supreme Court, Circuit Courts of Appeals, and
Court of Claims, and embraced the enactments estab-
lishing the Commerce Court and the Court of Customs
Appeals. This act was called the Judicial Code, and
went into effect January 1, 1912. The jurisdiction con-
ferred on the district courts up to January 1, 1912, is

26 Federal. Criminal. Law Procedure.

enumerated in Section 563 of the 1878 statutes and the
jurisdiction conferred on the district courts by the new
Judicial Code is shown in Section 24 of that Code.

§ 10a. Trial — Public. — The Constitution does not
necessarily mean that "public trial" means the presence
of spectators. When spectators are excluded defendant
should allege and show injury to set aside verdict.
Reagan vs. U. S., 202 Fed. 488.

§ 10b. Trial — Public — Continued. — In the case of
Davis vs. U. S., 247 Fed. 394, the Circuit Court of Appeals
for the 8th Circuit reversed the conviction because the
court excluded from the court-room all spectators except
the relatives of the defendant, members of the bar and
newspaper reporters, holding that such action deprived
the defendants of a public trial which is guaranteed by
the constitution, and that prejudice will be implied, and
that an affirmative showing that the defendants were
harmed was unnecessary to justify a reversal.

This case in its holding seems to be in direct conflict
with the case of Reagan vs. U. S., cited in paragraph
10-a, in that circuit Judge Gilbert speaking for the Court
of Appeals of the 9th Circuit said, "we think the better
doctrine is that it is not reversable error to exclude the
spectators as was done by the order of the court in the
case at bar, when there is no showing whatever that the
defendant was prejudiced thereby, or deprived of the
presence, aid, or counsel of any person whose presence
might have been of advantage to him."

I am of the opinion that a violation of the constitu-
tional rights necessarily implies prejudice and, as said
in the Davis case, "more than that need not appear."

§ 10c. Constitutional Trial — Court. — In some districts
the courts have been following the practice of permitting
pleas of guilty to be taken in felony cases, as well as mis-
demeanors, before the court, without a jury. It is not
believed that this practice is defensible. While there
are some states that permit this practice, a reading of
the cases from such states discloses that the constitu-
tional provision relating to jury trials in such states is
radically different from the federal provision. While it

General Provisions Applicable to the Practice. 27

may be argued that it would be difficult for a defendant
who consented to such procedure to afterward undo it,
the fact remains that there is no constitutional way to
try one under the federal constitution for a felony save
by a jury presided over by a judge.

Often it would be quite convenient, and apparently
quite harmless, to allow the record to be silent as to the
number of jurors sitting; but it has been invariably
held by the federal courts that there are some things that
a defendant cannot waive — some things that a prose-
cuting attorney, as an agent of the people, cannot agree
to, and that, therefore, there is only one sort of jury,
viz., twelve men.

"When we review the history of the trial of persons
charged with crime and ascertain the growth, harvest
and perfection of the present system we understand the
solicitude of the people for the preservation of such
rights.

Originally the trial was by ordeal — hot iron or water
or some other method; later, during the reign of Henry
7th, it was decided that the guilt or innocence of a crimi-
nal charge was determined by a public court, in the
county where the offense occurred, before a jury of twelve
men, from whose unanimous verdict no appeal could be
had. To these final perfections has been added the right of
appeal ; in other words the verdict of the petit jury is not
final in the sense that it may not be appealed from.

A federal trial must be conducted before a jury of
twelve men and presided over by a judge and such judge
cannot be substituted during the trial.

In the case of Freeman vs. U. S., 227 Fed. 734, Circuit
Judge Rogers, speaking for the Court of Appeals of the
second circuit writes learnedly and interestingly of the
evolution of our system and of its constitutional rigors
and demands.

§ 11. United States Commissioners. — The present
United States Commissioners, that correspond in a gen-
eral way to magistrates, justices of the peace, and other
state examining officers, were, under the old law, called
Commissioners of the Circuit Courts; but by the Act of

28 Federal Criminal. Law Procedure.

May, 1896, all Circuit Court Commissioners were abolish-
ed, and thereafter it became the duty of the District Court
of each judicial district in the United States to appoint
such number of persons as it might deem necessary to be
known as United States Commissioners. This Act of
May, 1896, was an amendment to the old Section 627 of
the Eevised Statutes. The Criminal Code of 1910 does
not change the Act of 1896.

A United States Commissioner, however, is not a Court.
In the case of in re Sing Tuck, 126 Federal, 397, the Court
held a United States Commissioner to be neither a court
nor a judge, nor vested by law with any part of the
judicial power of the United States. A United States
Commissioner is an inferior officer of a court, appointed
by the court under authority of Congress, with denned
and circumscribed powers. United States vs. Case, 8
Blatchf., 250; United States vs. Schumaan, 2 Abb. U. S.
523; in re Kaine, 14 Howard, 103; United States vs.
Clark, 1 Gall., 497. See also in re Grin, 112 Federal, 795;
Rice vs. Ames, 180 U. S., 371; Wright vs. Henkel, 190 U
S., 62; Beavers vs. Henkel, 194 U. S. 87, as to other
powers of United States Commissioners, under proper
appointment from the Court.

In 100 Federal, page 950, in re Perkins, it was held that
a United States Commissioner cannot punish for con-
tempt, and the doctrine is reiterated that a United States
Commissioner does not, and cannot, hold a United States
Court, but is a part of the Court appointing him; and
when there be disobedience to his process or authority,
the Commissioner properly refers such disobedience
to the Court by whose authority he exists, which Court
pursues the proper methods for contempt proceedings.
In United States vs. Wah, 160 Federal, 207, the above
doctrine has been reiterated, and it is clearly stated and
argued, citing authorities, that United States Commis-
sioners are neither judges nor courts, nor do they hold
courts, though at some times acting in a quasi-judicial
capacity, nor do they possess the power of courts, except
in so far as the Acts of Congress conferring certain au-

General Provisions Applicable to the Practice. 29

thority and imposing certain duties on them, especially
confer the same.

§ 11a. Contempts. — In speaking of the authorities
that hold that a United States Commissioner is not a
court, I cited some precedents that have blazed a method
for punishing contempts before United States Commis-
sioners which suggests the subject as related to the
courts. There is never any difference of opinion as to the
power and right of a court to punish for contempts comit-
ted in its presence. This power is inherent and is a corol-
lary of authority itself. Just what outside acts amount to
a contempt and just how far the courts will go in enforc-
ing obedience is an interesting field and not quite so well
measured. For instance in Grant v. U. S., 227 U. S. 704,
it was held that a judgment for criminal contempt can
be reviewed only by writ of error and not by appeal and
that the personal privilege does not relieve an attorney
from producing, under subpoena of the federal grand
jury, books and paper of a corporation left with him for
safe-keeping by a client who claimed to be owner thereof,
and such production may be enforced even though the
books and documents would incriminate the attorney who
claimed to be holding them for his client. See also
Wheeler v. U. S. 226, U. S. 478. To the same effect is the
case of Norcross v. U. S., 209 Fed. 13, which held that a
contempt punishment would lie for the failure of the
secretary of a corporation to produce before a grand jury
the books and records called for in a subpoena duces
tecum and this though there was no pending charge be-
fore the grand jury against the corporation or any of its
officers or stockholders. This case was a writ of error
from a judgment by the lower court committing the of-
fending witness to imprisonment until he should conform
to the requirements of the subpoena and the above opin-
ion was by the Circuit Court of Appeals for the Ninth
Circuit.

In the case of U. S. v. Huff, 206 Fed. 700, District
Judge Grubb outlines the procedure and says that a con-
tempt proceeding, although instituted in civil form by an
order made in a pending suit directing the issuance of an

30 Federal Criminal- Law Procedure.

attachment to bring the defendant into court, may be
converted into a criminal proceeding by the intervention
of the United States and the filing of a motion asking to
be made plaintiff therein. He also says that the common
law rule that one charged with contempt may purge him-
self and be entitled to a discharge by the filing of a sworn
answer denying the contempt, is not recognized by the
federal courts because they leave the question to be de-
termined by the proofs on the hearing.

In the provision of Revised Statute § 725 and Judicial
Code § 628 limiting the power of federal courts to punish
for contempt to misbehavior in the presence of the court
or so near thereto as to obstruct the administration of
justice, the second clause is not restricted in meaning to
acts committed so near any point of distance to the place
of holding court as to be obstructive to orderly procedure,
which are covered by the preceding clause as construed
by the Supreme Court, but applies to all acts of misbe-
havior the natural tendency and effect of which are to
interfere with the administration of justice, wherever the
acts may be committed. Where a defendant wrote and
sent letters to a federal judge which were delivered to
him in a room of his residence where he frequently heard
matters in chambers, although it was not being so used
at the time, such letters relating to a pending suit, to
which the defendant was a part and in which the judge
was still required to take action, they constituted a con-
tempt punishable by the court under Judicial Code § 268.

In Kirk v. IT. S., 192 Fed. 273, Circuit Judge Gilbert,
speaking for the Circuit Court of Appeals for the Ninth
Circuit, affirmed a contempt conviction which grew out
of an attempt to corrupt jurors whom the defendant ex-
pected would sit in a criminal trial about to be held in
the same city, though such acts occurred in a saloon
several blocks from the place where the court was held.
The court specifically said that it was sufficiently near to
the court to obstruct the administration of justice and
it was therefore within the court's jurisdiction to punish,
even though it did not occur on property belonging to the
United States or occupied or used by it.

General Provisions Applicable to the Practice. 31

In U. S. v. Barrett et al., 187 Fed. 378, the defendants
were punished for having made an unprovoked assault
on one of the attorneys interested in a caes being tried
in the district court, such assault having been made be-
cause of the argument of such attorney and having been
made on the street in full view of the jury room. The
court said it had the power under its general jurisdiction
to see that counsel practicing before it were not interfered
with and that it had jurisdiction to punish individuals
for contempt who assaulted counsel.

Judge Lacombe, in the Steiner case, 195 Fed. 300, held
that the preparation, verifying and presentment of a false
affidavit intended to influence the action of a court, con-
stituted an obstruction to the administration of justice
punishable as a criminal contempt and that contempt pro-
ceedings could be begun by warrant of attachment, as
well as by a rule to show cause.

Section 268 of the Judicial Code reads as follows:

"The court shall have power to impose and administer all necessary
oaths and to punish by fine or imprisonment, at the discretion of the
court, contempts of their authority; provided, that such power to pun-
ish contempts shall not be construed to extend to any cases except the
misbehavior of any person in their presence, or so near thereto as to
obstruct the administration of justice, the misbehavior of any of the
officers of said courts in their official transactions, and the disobedience
or resistance by any such officer, or by any party, juror, witness or
other person to any lawful writ, process, order, rule, decree or command
of the said courts."

In Gompers v. U. S. 233, U. S. 604, the Supreme Court
held that while it could not review by appeal or writ of
error a judgment of the Court of Appeals of the District
of Columbia, punishing for contempt, it may grant a writ
of certiorari to review the same. In this case the court
asked the interesting question as to whether an indict-
ment will lie for a contempt of the court of the United
States and left it unanswered. The Gompers case will be
recalled as the case originating from the Buck stove boy-
cott and grew immediately out of the publication of an
issue of a labor paper.

Section 1044 of the Eevised Statutes provides that no
person shall be prosecuted for an offense, not capital,

32 Federal Criminal Law Procedure.

unless the indictment is found or information instituted
within three years after the commission of the offense
and the Supreme Court held in the Gompers case that
this provision of limitation applied to acts of contempt
that were not committed in the presence of the court,
233 U. S. 605. In that same case the court exhaustively
considered the proposition as to whether or not a sum-
mary punishment for contempt was in violation of any
of the Constitutional provisions guaranteeing jury trial
and presentment by indictment and determined that the
power to punish summarily was a part of the court itself
and could not depend upon the uncertainty or delay of
jury trials. This construction has long been recognized
by the law writers as correct, the carrying into effect
of which is not a deprivation of "due process of law."
Bishop's New Criminal Procedure, Vol. 1, § 100a, Par. 3;
same work, Vol. 2, § 892, Par. 6. IT. S. v. Sweeney, 95
Fed. 434; People v. Kipley, 171 111. 44; 41 L. R. A. 775.

Violating injunctions, process of punishment for,
whether civil or criminal contempt, Scovic v. U. S. 217,
Fed. 871; Schwortz v. U. S. 217, Fed. 866.

§ lib. Contempt Defined.— The act of October 15,
1914, on trade unions and combinations and trusts, found
at page 128 of the Federal Statutes Annotated Supple-
ment, of the 63rd Congress, in § 21 provides:

"That any person who shall wilfully disohey any lawful writ, process,
order, rule, decree, or command of any district court of the United
States or any court of the District of Columbia, by doing any act
or thing therein, or thereby forbidden to be done by him, if the act
or thing so done by him be of such character as to constitute also
a criminal offense under any statute of the United States, or under
the laws of any state in which the act was committed shall be pro-
ceeded against for his said contempt as hereinafter provided."

Section 22 provides the procedure for such trials and
punishment, which includes the right of trial by jury,
and limits the punishment to a fine not exceeding one
thousand dollars or a term not exceeding six months or
both, and § 23 provides for an appeal from a conviction
and bail during such appeal. § 24 reads as follows:

General Provisions Applicable to the Practice. 33

"That nothing herein contained shall be construed to delate to
contempts committed in the presence of the court, or so near thereto
as to obstruct the administration of justice, nor to contempts commited
in disobdience of any lawful writ, process, order, rule, decree, or com-
mand entered in any suit or action brought or prosecuted in the name
of or on behalf of the United States, but the same and all other cases
of contempt, not specifically embraced within section 21 of this Act,
may be punished in conformity to the usages at law and in equity
now prevailing."

Other than the contempts defined in Section 21 of this
new law, it would seem that the statute relates to no
other sort and that the procedure and punishment are as
hereinbefore defined for all other contempts.

§ lie. Contempt Pendente Lite. — A persisting in per-
jury or a continued failure to comiDly with an order of
the court, are contempts that may be prosecuted by a mo-
tion filed by the prosecuting officer or upon the court's
own motion. In United States v. Appel, 211 Fed. 495, the
court held that it had power to punish as a criminal con-
tempt persistent perjury which blocks the inquiry before
it, upon motion made by the district attorney on behalf of
the United States. A court, like anyone else who is in
earnest, ought not to be put out by transparent sham or
evasive answer. Answers that are manifestly untrue are
as« surely a contempt of the court as is the refusal to
answer at all. It is no defense to proceedings for con-
tempt in making and presenting false affidavits and in
disobeying an order requiring delivery of property, that
the respondent ultimately succeeded in the suit in which
the contempt was committed. In re Steiner, 195" Fed.
300. A proceeding for contempt of court may be begun
by warrant of attachment as well as by rule to show
cause, and the fact that perjury is a substantive crime,
punishable as such, does not prevent it from also con-
stituting a contempt punishable under Revised Statutes
725, which is now Section 268 of the Judicial Code. See,
also, for bankruptcy contempts, U. S. v. Henkel, 185 Fed.
553.

§ lid. Illustrative Contempts.— In Toledo Newspaper
Company vs. U. S., 38 Sup. Ct. Rep., page 560, 247 U. S.

34 Federal. Criminal, Law Procedure.

402, it was determined that Sec. 268 of the Judicial Code,
which declares that courts shall have the power to pun-
ish contempts of their authority, provided that such pow-
er shall not be construed to extend to any cases, ex-
cept the misbehavior of any person in their presence,
or so near thereto as to obstruct the administration of
justice, confers no power not already granted, and im-
poses no limitations not already existing, but merely
marks the boundaries of existing authorities, and under
it the publisher of a newspaper which criticized the pre-
siding judge and held him up to ridicule and hatred in
case he should grant an injunction, and in advance im-
peached his motives, was guilty of contempt, even though
it did not appear that the judge saw the articles or that
he was affected by them.

See also In re U. S. vs. Providence, 241 Fed. 524.

In the case of Marshall vs. Gordon, 243 IT. S. 521, the
supreme court held that the congress did not have the
power to punish by contempt proceedings an United
State Attorney who had criticized a committee of the
House of Representatives.

A letter of an administrative officer containing a false
charge against a judge concerning cases pending before
such court was a contempt of that court. IT. S. vs. Craig.
266 Fed. 230. •

Attorneys having communications and meeting with
jurors may be prosecuted for contempt by information
presented by the IT. S. Attorney and the facts alleged
upon information and belief. Kellev vs. U. S., 250 Fed.
947.

Hiring out of a prisoner or allowing him to escape is
a contempt. O'Rourke, 251 Fed., 768.

Disobedience on an order is a civil contempt and re-
viewable only by appeal. Cutting vs. Van Fleet, 252 Fed.
100.

Failure to answer questions is a contempt and is re-
viewable on writ of error taken within six months; but
an order denying the motion to vacate such order is in-
terlocutors, and not subject to review by writ of error.
Gill vs. IT." S., 262 Fed. 502.

General Provisions Applicable to the Practice. 35

The sheriff of a state who allows an United States
prisoner to escape is guilty. Swepston vs. U. S., 251 Fed.
205.

Language or conduct designed and having the natural
effect to incite others to violence in disregard of an in-
junction, is in itself a contempt of the court. Stewart
vs. U. S., 236 Fed. 838.

In the Toledo Newspaper Company vs. U. S., 237 Fed.
986, while it was before the Circuit Court of Appeals, it
was suggested that where a contempt was charged by
certain newspaper publishers concerning a judge sitting
in a pending trial, that such judge has jurisdiction to
dispose of the contempt proceedings, but, if there bft
sufficient time, he should call in another judge.

A criminal contempt is an "offense," within the mean-
ing of Art. 5541 R. S., and where the sentence imposed,
exceeds a year imprisonment, may be in a penitentiary.
Creekmore vs. U. S., 237 Fed. 743.

A speech by an attorney at a public meeting attacking
the court is a contempt. U. S. vs. Markewich, 261 Fed.
537.

An attorney drinking, etc., with a juror is in con-
tempt. In re Kelly, 243 Fed. 696.

A civil contempt should not be turned into a criminal
contempt for the convenience of the defendant, as to
speeding a hearing on an injunction as to patents. Tur-
ner vs. U. S., 238 Fed. 194.

In a criminal action for contempt, for violating an
injunction, the only errors for which the judgment may
be reversed are those errors of law committed by the
court below in the contempt action. Jennings vs. IT. S.,
264 Fed. 399.

The Supreme Court of the United States will grant
permission to file an habeas corpus to one illegally com-
mitted for contempt in the United States District Court,
say for perjury, when the case is of exceptional charac-
ter. Ex parte Hudgings, 39 Sup. Ct. Rep., 337; 249 U.
S. 378.

Contempts. — House of Representatives.

See U. S. vs. Gordon, 235 Fed. 423.

36 Federal Criminal Law Procedure.

§ 12. Prosecution Begun by Indictment. — While there
remain some few statutes that impose punishments suffi-
ciently light to permit prosecution to be begun by in-
formation, most prosecutions must be begun by indict-
ment. See also § 5a.

§ 12a. For illustrative cases under which prosecutions
have been begun by information see paragraph 5-b.

§ 13. Grand Jury and Indictment. — Constitutional
amendment 5 guarantees that no person shall be held to
answer unless upon presentment or by indictment. We
have learned in § 5a that all offenses which may be pun-
ishable by a term in excess of one year, must be begun
by indictment. A grand jury, under Section 808 of the
Revised Statutes, must consist of not less than sixteen
nor more than twenty-three men, twelve of whom must
vote in favor of a bill before it can be legallv returned.
Section 1021 E. S. Section 282 of the new Judicial Code
provides that every grand jury shall consist of not less
than sixteen nor more than twenty-three persons and that
if of the persons summoned, less than sixteen attend, they
shall be placed on the grand jury and the court shall order
the marshal to summon either immediatelv or for a dav
fixed from the body of the district, and not from the by-
standers, a sufficient number of persons to complete the
grand jury. Judicial Code Section 282.

Section 276 of the Judicial Code specifies the method
for drawing jurors and provides for a commission to per-
form this service. It is not legal to summon thirty men
to serve on a grand jury and then to cull therefrom twen-
ty-three for actual service. IT. S. v. Lewis, 192 Fed. 633.
But see U. S. v. Breeding, 207 Fed. 645, where the court
held that the summoning of thirty veniremen for grand
jury service and thereafter when more than twenty-three
answered a standing rule of the court provided that an al-
phabetical list of those present should be made and of
such list the first twenty-three should compose the grand
jury, it was legally constituted under the present statutes.

Judge McDowell, in reasoning his conclusions to sup-
port the last decision, said "The first objection to sum-
moning more than twenty-three veniremen is, of course,

General Provisions Applicable to the Practice. 37

the seeming difficulty in fairly selecting those who are
to serve. The rule of court above-mentioned certainly
wholly obviates this objection. This rule being followed,
it is a matter of pure chance. There is no room for even
any suspicion of unfairness in selecting the grand jury
of twenty-three from the qualified veniremen present.
The only remaining objection that occurs to me must be
found in a supposed implication from the statutory re-
quirement, Section 808 R. S. ; Section 282 Judicial Code,
that grand juries shall not exceed twenty-three members.
There is certainly in the statute no express inhibition
against summoning more than twenty-three veniremen,
and there are some very strong reasons against finding in
the statute any implied inhibition." As for instance the
loss of time in waiting for the marshal to summon tales-
men from the body of the district.

It is not error for the court to instruct the marshal to
summon additional names as provided by the statute even
though as many as sixteen have responded to the original
summons. In other words, the court, finding but sixteen
men on a responding grand jury venire may direct the
marshal to summon from the body of the district five
or more names to bring the number up to twenty-three, if
he sees fit. U. S. vs. Nevin, 199 Fed. 831.

So also a venire of jurors may be drawn and examined
for a term, in accordance with the statute, without des-
ignating them as grand or petit jurors, and at the term
a grand jury may be selected therefrom, where such is the
state practice. U. S. vs. Breese, 72 Fed. 765, affirmed IT.
S., Supreme Court, 226 U. S. 1.

Under the authority of Section 802 E. S. the court may
provide that jurors shall be returned from such parts of
the district, from time to time, as the court shall direct, so
as to be most favorable to an impartial trial and so as
not to incur unnecessary expense or to unduly burden the
citizens of any part of the district with such service. May
vs. U. S. 99 Fed. 54.

Under a statute declaring that the names first drawn
from a jury box shall constitute the grand jury, and the
later the petit jury, a grand jury from which jurors whose

38 Federal. Criminal Law Procedure.

names were first called were improperly excused, and
their places filled by persons whose names were there-
after drawn from the box, was illegal.

The bill must be returned into open court and it must
be returned by the foreman who shall be accompanied by
the rest of the grand jurors. I am fully aware that the
case of U. S. vs. Breese, reported in 172 Fed. 765, held
that where the record in a criminal case showed that the
indictment was properly endorsed "a true bill" by the
foreman of the grand jury and where it was conceded that
the indictment was found by a vote of the requisite num-
ber of grand jurors and after being properly endorsed
by the foreman, was taken by him into the court room
which opened from the grand jury room and presented
to the judge on the bench when the court was in session
and by him handed to the clerk, such indictment was
held to be valid. If this decision is based upon the fact
that the balance of the grand jurors could be seen from
where the presiding judge sat or upon the fact that the
balance of the grand jurors had the foreman in sight all
the time, then the same reasoning would permit the
foreman to walk unaccompanied by the remainder of
the grand jurors a mile or across a Texas prairie so long-
as he was in sight of either the judge or the rest of the
grand jurors. When the case got to the Supreme Court,
as shown in Vol. 226, p. 1, that body affirmatively an-
swered the questions of the Circuit Court of Appeals
which was passing upon the writ of error as to affirming
the judgment of conviction, but the opinion specially
states that the mode of presentment followed was the
mode prescribed by the laws of North Carolina, and al-
so states that the objections made to this manner of
presentment came too late and if there was any objection
to such presentment, it was cured by Section 1025 of the
Revised Statutes which will not permit an indictment
to be held defective because of matters of form only,
and the court said that "We do not think it necessary
to discuss the condition that the fifth amendment to the
Constitution requires the indictment to be presented by

General Provisions Applicable to the Practice. 39

the grand jury in a body or that their failure so to do
goes to the jurisdiction of the court."

When a grand jury has found its indictments it re-
turns them into open court, going personally and in a
body, a duty which is more or less regulated by statutes
in various states. Vol. 2, Bishop's New Criminal Pro-
cedure, Second Edition, Section 869a, Par. 3. Renigar
vs. U. S. 97 C. C. A. 172, 172 Fed. 646. See also Section 17
post.

Judge Trieber in U. S. vs. Lewis, 192 Fed. 834, held
that the selection of a grand jury is a matter of sub-
stance which cannot be disregarded without prejudice
to the accused and is not a mere defect of form such as
Section 1025 R. S. requires to be disregarded and there-
fore an indictment was vitiated by an order for the
drawing of thirty-six names for the formation of a
grand jury, which permitted the marshal to summon
twenty-three persons to-be selected by him from the thir-
ty-six drawn. Grand jury must be drawn by only those
authorized by sec. 276, Judicial Code. U. S. vs. Murphy
224 Fed. 554.

§ 13a. Grand Jury, Continued. — While Federal prose-
cuting officers are not bounden by any rule or statute to
permit a defendant or his witnesses to present their side
of a question which is being investigated, yet the care-
ful prosecutor, careful of the reputation of the citizen,
often avails himself of the opportunity to permit the
defendant to have his day before the grand jury. A
citizen would seem to have the right to enjoy immunity
from indictment, if not guilty, as fully as he has the
right to enjoy immunity from punishment, if not guilty.
Under the common law, however, which, in the absence
of statute, controls the procedure in the United States
courts, a grand jury hearing was an ex parte proceeding,
at which the sovereignty alone was heard.

In Book 4, at page 302, of Blackstone's Commentaries,
it was said that the grand jury are previously instructed
in the articles of their inquiry by a charge from the
judge who presides upon the bench. Then they withdraw
to sit and receive indictments, which are preferred to

40 Fedeeal Criminal Law Procedure.

them in the name of the King, but at the suit of any pri-
vate prosecutor; and they are only to hear evidence on
behalf of the prosecution; for the finding of au indict-
ment is only in the nature of an inquiry or accusation
which is afterwards to be tried and determined; and
the grand jury are only to inquire upon their oaths
whether there be sufficient cause to call upon a party to
answer it. A grand jury, however, ought to be thorough-
ly persuaded of the truth of an indictment so far as
their evidence goes; and not to rest satisfied merely with
remote probabilities; a doctrine that might be applied
to very oppressive purposes.

Mr. Justice Fields, speaking for the Supreme Court
of the United States in 2 Sawyer, 668, observed in sub-
stance that the grand jury, while originally for the con-
venience of the Crown, under our institutions should be
the protector of the citizen.

One has not, however, as a matter of law, the right to
appear and testify before a grand jury which is investi-
gating a case against him. U. S. vs. Bolles, 209 Fed.
682.

§ 13b. Copy of the Indictment. — A copy of the indict-
ment is not furnished as a matter of course to defendants.
When a prosecution is for treason, however, or other cap-
ital offense, then a copy of the indictment and a list of the
jurors and witnesses, must be delivered to the defendant,
in the first instance at least three days before trial, and in
the last instance at least two days before trial, in accord-
ance with Section 1033. In other cases, however, copy of
the indictment is unnecessary. Balliet vs. U. S. 129 Fed.
689; Jones vs. U. S. 162 Fed. 417; Ball vs. IT. S. 147 Fed.
32; U. S. vs. Van Duzee, 140 U. S. 173. In a capital case
this provision applies only to the list of the regular panel
of jurors and not to talesmen. Stewart vs. U. S. 211 Fed.
41.

§ 13c. Evidence Before Grand Jury. — Indictment
should be based on legal evidence. To warrant the return
of an indictment it should be based on competent legal
evidence such as is legitimate and proper before a petit
jury. 20 Cyc. 1346; U. S. vs. Kilpatrick, 16 Fed. 765, U.

General Provisions Applicable to the Practice. 41

S. vs. Reed, Fed. Cas. No. 16134. Thus the report of an
assistant attorney general would not be competent legal
evidence in a trial upon an indictment charging use of
the mails in execution of a scheme to defraud, nor, upon
a charge of the use of the mails in carrying out a lottery
scheme. It would not, therefore, be proper to submit it
to the grand jury. Harrison vs. U. S. C. C. A. 200 Fed.
673.

The court in a criminal case, however, will not inquire
into the evidence before the grand jury to ascertain
whether it was all competent or sufficient to warrant the
indictment, when such a plea is verified on information
and belief only. U. S. vs. Nevin, 199 Fed. 831.

In the case of McKinney vs. U. S. 199 Fed. 25, the
court held that a trial court cannot be required to review
the evidence before a grand jury to determine its suffi-
ciency or whether incompetent evidence was received, un-
less the case was an extreme one and unless it was to
prevent a clear injustice or an abuse of judicial process.
This case also held that a "presentment" is an action
made by grand jurors upon personal knowledge or ob-
servance of the facts or upon the testimony of witnesses,
speaking for the Court of Appeals for the Ninth Circuit,
In the case of Hillman vs. U. S., Circuit Judge Gilbert,
in 192 Fed. 264, said that pleas in abatement are to be
strictly construed and that such a plea to an indictment
that books containing criminating evidence were wrong-
fully produced before the grand jury, was bad where it
showed that the books belonged to corporations of which
accused was president and not to him individually. It
also held in that case that competent evidence upon which
an indictment was founded, consisting of books and docu-
ments which were unlawfully seized and produced be-
fore the grand jury, is no ground for abating the indict-
ment.

§ 13d. Motion to Quash Indictment or Other Dilatory
Plea. — After the return of a bill into court, if there be any
dilatory plea that the defendant thinks to lodge, he must
speed to do so. A delay of five days in presenting such a
plea may be fatal to him; and in the presentment of such

42 Federal Criminal, Law Procedure.

a plea there must be specifically set out the causes and par-
ticulars of the injury to him. Agnew vs. U. S. 165 U. S. 36;
Lowden vs. U. S. 149 Fed. 675; Wilder vs. U. S. 143 Fed.
439. The plea must be filed quickly and must show in-
jury to the defendant. U. S. vs. Nevin, 199 Fed. 831;
Hillman vs. U. S. 192 Fed. 264; Breese vs. U. S. 172 Fed.
761, 226 U. S. 1.

§ 13e. Information. — Having spoken several times in
the different sub-divisions of this section of an informa-
tion, it will be well to call attention to the fact that the
Constitution of the United States, in its fourth amend-
ment, provides, that no warrants shall issue, but upon
probable cause, supported by oath or affirmation. The
courts hold, however, that it is a limitation upon the
powers of the federal government, but that it does not
require an information filed by a district attorney of the
United States to be verified or supported by an affidavit
based on personal knowledge, and showing probable
cause, unless such information is made the basis of an
application for a warrant of arrest. Thus, in a prosecu-
tion against a corporation for the imposition of a fine or
against a firm, for a fine under the Pure Food Act, for
instance, the information of the District Attorney need
not be verified. 216 Fed. 292.

There are, however, small misdemeanors which, through
the imposition of a fine, may result in imprisonment.
Such prosecutions may be commenced by information,
but invariably the information must be supported by oath.

In the case of ex parte Wilson, 114 U. S. 417, the court,
in treating the fifth amendment to the Constitution, which
inhibits all prosecutions for capital or other wise infa-
mous crime, unless on a presentment or indictment of a
grand jury, authoritatively decided the meaning to be
given to the word "infamous" and that meaning is un-
derstood to be a crime punishable by imprisonment for
a term of years in a penitentiary. Since, however, the
adoption of the new code, there can be no trouble with
reference to the meaning of this term, because the code
specifically defines the word "infamous" or "felony"

General Provisions Applicable to the Practice. 43

to mean such crimes as are or may be punishable by im-
prisonment in the penitentiary for more than one year.

§ 13-f. A true bill must be returned by a properly
constituted grand jury. Cooper vs. U. S. 247 Fed. 45.

A socialist is not entitled to a socialist on the grand
jury. Ruthenberg vs. U. S. 245 U. S. 480.

Any discrimination against any class in the make up
of the grand jury will be a ground for quashing the in-
dictment. Mamaux vs. U. S. 264 Fed. 816.

An indictment should not be presented to, a grand jury
without leave of the court. TJ. S. vs. Jenks, 258 Fed. 763.

It is no ground to quash an indictment that a previous
grand jury had failed to indict. U. S. vs. Thompson, 40
Sup. Ct. Rep. 289.

The politics of the clerk and commissioner is a discre-
tionary matter with the judge is held in the case of U. S.
vs. Caplis, 257 Fed. 840. '

The return of an indictment in one division of a district
where the crime was not committed and the transferring
of the indictment afterward to the proper district is held
to be a legal procedure in Big-fferstaff vs. TJ. S. 260 Fed.
926. This case holds that the filing of the indictment and
the proceedings leading thereto are not a part of the pros-
ecution and by so holding Sec. 53 of the Judicial Code
which requires all prosecutions to be had within the
division of the district where the crime is charged to
have been committed is complied with.

Directly opposite to this holding is the case of U. S.
vs. Chennault, 230 Fed. 942. And since the Chennault
case is based on Virginia vs. Paul, 148 IT. S. 107, that
the filing of an indictment and its return into court is
the beginning of a criminal prosecution, it would seem
that the Chennault case is correct. At any rate the cau-
tious prosecutor will indict only in the division where
the crime was committed and the cautious defending
attorney will never allow his client to go to trial on an
indictment found in a division other than that in which
the crime was committed without saving the point by
appropriate motions. It is not only statutory but con-
stitutional by implication. See Sees. 17-17-b.

44 Federal Criminal Law Procedure.

The case of Logan vs. U. S. 36, Law Ed. 429 which
held that a grand jury sitting for the district could in-
dict for offenses committed in any division of that dis-
trict, was decided before the new Judicial Code was
passed.

In the case of Virginia vs. Paul, 148 U. S. 107, the
question as to when a prosecution was begun was direct-
ly before the court and the court held that it was begun
by the filing of an indictment.

Sec. 42 of. the Judicial Code authorizes the prosecu-
tion of an offense in any district in which it was begun,
or into which it was continued and in passing upon this
section the Supreme Court in U. S. vs. Lombardo, Oct.
term, 1915, inferentially reasons slightly in favor of the
position here contended for.

Under Judicial Code, Sec. 275, jurors in U. S. courts
are required to have the same qualifications as jurors
in the highest court of the state. Christopoula vs. U. S.
230 Fed. 788.

§ 13h. Illegal evidence before grand jury.

An indictment cannot be set aside on the ground that
evidence unlawfully secured was before the grand jury
unless it affirmatively appears that there was no lawful
evidence presented upon which it could have been
based. Anderson vs. U. S. 273 Fed. 21.

§ 13g. A stenographer's notes are not admissible in
evidence, but, like other contemporaneous writings, may
be used, under the proper circumstances, to refresh the
memory of the person making. Sneierson vs. U. S. 264
Fed. 268.

The destruction of evidence by a defendant may be
proven as a fact in the case. Ayala vs. U. S. 268 Fed.
296.

The court may quash an indictment when illegally se-
cured testimony is used before the grand jury. U. S.
vs. Silverthorne, 265 Fed. 853.

A defect in an indictment discovered and proclaimed
after verdict, must have prejudiced the defendant be-
fore it can be advantaged. Grantele vs. IT. S. 232 U. S.
647.

Genebal Peovisions Applicable to the Peactice. 45

A motion to quash an indictment on account of the mis-
conduct of the district attorney in the grand jury room
must set out facts. U. S. vs. Gradwell, 227 Fed. 243;
U. S. vs. Rintelen 235 Fed. 787.

An indictment is not subject to a plea in abatement
because incompetent testimony was presented to the
grand jury, unless competent evidence sufficient to justi-
fy the indictment was not presented. U. S. vs. Rientelen,
235 Fed. 787.

Nine months is too long to wait to file a plea in abate-
ment complaining of the conduct of the grand jury and
of the drawing of the same. Moffat vs. IT. S. 232 Fed. 522.
An information is insufficient which issues on the infor-
mation and belief of the United States District Attorney;
it must be supported by proof establishing probable cause.
U. S. vs. Baumert, 179 Fed. 735; U. S. vs. Wells, 225
Fed. 320.

An information filed by a United States Attorney
which appears to be based upon affidavits taken by a
notary public is insufficient because notaries have no au-
thority under the laws of the United States to adminis-
ter any oaths in connection with criminal prosecutions.
U. S. vs. Schallinger, 230 Fed. 290.

Pleas in abatement were held insufficient in U. S. vs.
Scott, 232 Fed. 192 and U. S. vs. Bopp, 232 Fed. 177.

An objection made on the day the case was called for
trial in the nature of an abatement plea was too late.
Benson vs. U. S. 240 Fed. 413.

A plea in abatement for illegality in drawing the
grand jury filed seven months after the indictment was
returned, and filed without leave of the court, was so
late that the trial court refused to rule upon it and the
Court of Appeals in passing upon the question held that
such action of the court was not error as it was in the
trial courts sound discretion as to whether he would
rule on a plea of that sort filed so late. Matters vs. U.
S. 244 Fed. 736.

§ 14. Preliminary Proceedings. — We have heretofore
noticed the provisions relating to the appointment of
United States Commissioners. If warrant is secured

46 Federal. Criminal. Law Procedure.

prior to indictment, such warrant is issued under the
hand and seal of the United States Commissioner, and
the offender is brought before him for preliminary hear-
ing, and is entitled to make his bail before that officer.
The general authority for such procedure is found in
Section 1014. If one be arrested in a district different
from that in which he is indicted, he is entitled to be
taken before the nearest United States Commissioner,
who inquires into his identity, and fixes bail for his ap-
pearance before the proper Court of the proper district.
If the prisoner cannot make the bail, application is made
to the District Judge for a warrant of removal, under
Section 1029.

The latest authority seems to be that upon proper ap-
plication, the District Court may inquire into the validi-
ty of the indictment, so far as the jurisdiction is con-
cerned, before ordering the defendant moved to the dis-
trict in which the indictment was found. In United
States vs. Smith, 173 Federal, this doctrine was an-
nounced, and the Court refused to remove the publisher
of a newspaper in Indianapolis to the District of Colum-
bia for trial. To the same effect is Findley vs. Treat,
205 U. S., 20; also 131 Fed., 968; U. S. vs. Green, 136 Fed.,
618; United States vs. Peckham, 143 Fed., 625; 119 Fed.,
93; in re Benson, 130 Fed., 486; United States vs. Green,
100 Fed., 941; Pereles vs. Weil, 157 Fed., 419. Probable
cause is the only question to be inquired into when re-
moval on indictment is asked. In re Quinn, 176 Fed.,
1020.

§ 14a. Warrant to Issue — When? — We have hereto-
fore spoken briefly of amendment 4 of the Constitution,
Chapter 1, but in this connection it will be well to repeat
a provision of that amendment which reads as follows:
"No warrant shall issue but upon probable cause sup-
ported by oath or affirmation." As the government
grows larger and stronger and the people are further re-
moved from their representatives and its officers, there
will come a corresponding disregard of the individual's
rights and an overlooking of the principles that were so
jealously championed and so dearly purchased. There

General. Provisions Applicable to the Practice. 47

should never be the arresting of one in his right to walk
where he pleases unless the Constitutional provisions au-
thorizing such invasion of the citizen's right has been
fully complied with. Judge Ray, in U. S. vs. Baumert,
179 Fed. 738, said that "However convenient and inex-
pensive it might be to ignore this provision of the Con-
stitution, a due regard for the rights of the citizen and
the danger of gross abuses of the old system which had
its basis in the now exploded idea that the King— that
is the government — can do no wrong, led to the adoption
of this amendment to the Constitution." A contention
which holds that this provision of the Constitution is
complied with when an information setting forth on in-
formation and belief the facts claimed to exist, is errone-
ous and such an information is not supported by "oath
or affirmation." A court will not authorize the issuance
of a warrant on an information made on the information
and belief of the United States District Attorney, but
it must be supported by proof establishing probable
cause, to-wit, legal evidence that a crime has been com-
mitted and that there is probable cause and belief that the
accused is guilty of the commission thereof. U. S. vs.
Baumert, 179 Fed., 735.

§ 14aa. Warrant to Issue — When — Continued. — A
warrant will not issue upon information and belief. The
fourth amendment to the constitution forbids the is-
suance of warrants except on probable cause supported
by oath and affirmation, U. S. vs. Michalski, 265 Fed.
839; and a void warrant is no protection to the officer
acting thereunder if he has such knowledge. 252 Fed.
371. There will be no arrest without a warrant except
in misdemeanors when committed in the presence of the
officer. Ex parte Harvell, 267 Fed. 997; and when an ar-
rest is made in such case charge must be filed at once.
See also American Steel Company vs. Davis, 261 Fed.
800.

An information may not be verified before a Notary
Public as such officer is not known to United States
law. U. S. vs. Schallinger, 230 Fed. 290.

48 Federal Criminal Law Procedure,

§ 14b. Questioning of Indictment on Removal. — In

the last paragraph of Section 14 some cases are cited
which practically settle it as a rule that the removing
judge shall remove unless the validity of the indictment
is properly questioned, when warrant will be refused.
In U. S. vs. Ruroede, 220 Fed. 210, it was held prelimi-
nary affidavit must state offense.

A broadening of this right is expressed in the case of
U. S. v. Campbell, 179 Fed. 762, wherein the court held
that a defendant may overcome the presumption that
the offense was committed in the jurisdiction alleged in
the indictment by appropriate evidence and show any
other legal reason why removal should be denied. Com-
missioner has no authority to issue warrant of removal.
Hastings vs. Murchie, 219 Fed. 83.

§ 14bb. On Removal. A prima facie right to re-
moval is made by the government when it introduces
the indictment and the defendant admits his identity.
But in the case of Gayon vs. McCarthy, U. S. Sup. Ct.,
40, U. S. Sup. Ct. Rep. 244, the course of permitting the
defendant, after such prima facie case, to introduce evi-
dence raising the question of jurisdiction and probabil-
ity, seems to have been approved, though not specifically
so held.

The present authorities drive one to the conclusion
that after such prima facie case is made the defendant
may then question the jurisdiction of the court, and,
raise the question as to whether or not an offense has
actually been committed by him, or in other words
whether there is probable cause to so believe. U. S. vs.
Yount, 267 Fed. 861; though in Rowe vs. Boyle, 268 Fed.
809, it was held that the sufficiency of the indictment is
not an issue; that the identity of the defendant makes
a prima facie case; while in Williams vs. Boswell, 255
Fed. 889, it would seem that the Circuit Court of Ap-
peals likewise favors the testing of the sufficiency of the
indictment before removal.

In the case of Rumely vs. McCarthy, 256 Fed. 565, on
habeas corpus to prevent removal, District Judge Mayer,
held that both the commissioner and the court should

General Provisions Applicable to the Practice. 49

have before them the entire situation, that is to say, all
of the facts bearing upon the offense charged. It is not
thought that this decision means that a trial of the same
shall be had but that the jurisdiction of the court, the
sufficiency of the indictment, and probable cause shall
be established.

§ 14c. Arraignment. — Arraignment of the defendant
has been considered a necessary step in all criminal trials,
and the failure to do so has frequently been considered
reversible error. Bishop's New Criminal Procedure,
Vol. 1, p. 434.

The Supreme Court of the United States, in Crain v.
U. S. 162 U. S. 625, reversed a judgment of conviction
because the record showed no form of arraignment and
held that arraignment was essential to a legal trial and
that in a federal court no valid trial could be held with-
out the requisite arraignment and plea and that such
must be shown by the record of conviction. Johnson vs.
U. S., 225, U. S. 405.

In obedience to the popular demand for the efface-
ment of as many technicalities in our court procedure as
possible, the Supreme Court in Garland v. State, 232 U.
S. 642, overruled its original decision in the Crain case
and held that the arraignment is no longer required in
the United States courts for the protection of the ac-
cused and said that technical objections originating in
the early period of English history, when the accused
was entitled to but few rights, are passing away and
should not be allowed as to unimportant formalities,
where the rights of the accused have not been preju-
diced. Of course this decision does not mean in any
sense of the word that a plea is not necessary. There is
no way to join an issue between the accused and the
sovereignty save and except by the entering of a plea,
and if the defendant stand mute, the court shall enter
a plea for him, and that plea shall be "Not guilty."

§ 15. Bail Bonds, Etc.— Under Section 1014, all bail

bonds and recognizances are to be as near like those in

the state court as the difference in codes and practice

will permit. In re Belknap, 96 Fed., 614; U. S. vs. Hunt,
4

50 Federal Criminal. Law Procedure.

166 U. S., 1063; U. S. vs. Lois, 149 Fed., 277. In United
State vs. Zarafonitis, 150 Federal, 97, the Court held
that all proceedings for holding an accused person to
answer to a criminal charge before a court of the United
States are assimilated to those under the laws of the
state in which the proceedings take place, and the suf-
ficiency of a bail bond taken in such proceedings is to
be determined by the law of the state, though in Hardie
vs. United States, 71 Fed., 158, the Court held that a
bail bond taken before a United States Commissioner,
though affidavit and information charge no offense, is
good, and may be enforced. The United States may en-
force a forfeited bail bond of recognizance by an action
at law or scire facias. United States vs. Zarafonitis, 150
Fed., 99; United States vs. Insley, 54 Fed., 221. In 170
Federal, 613, United States vs. Lee, the court held that
an indemnified surety may be refused, and in the same
Federal Reporter, at page 476, in United States vs. Mar-
rin, the Court held that a defendant who goes where he
can be arrested, and thus causes a breach of his bond,
renders his sureties liable.

§ 15a. Bail During Trial. — Section 1015 of the Re-
vised Statutes, which provides that bail shall be admit-
ted upon all arrests for offenses not punishable by death,
does not entitle the defendant, as a matter of right, to
bail during his trial. U. S. vs. Rice, 192 Fed. 720. In 5
Cyc. the law is thus stated:

"Where the accused is free on bail he may be ordered
into actual custody during the trial of the ease, nor will
bail be allowed during adjournments of the daily sessions
of the court." In another list of citations in Judge Ray's
opinion in the above case, it is held that it is within the
discretion of the court to order defendants into actual
custody, when the trial is commenced.

In Texas there is a state statute which gives the de-
fendant the right to go at liberty on his bond during the
trial, and federal courts in that state recognize the state
statute and follow that procedure, which statute would
of course protect the sovereignty in any suit it might
brine: asranist the bondsman for forfeited recognizance.

General Provisions Applicable to the Practice. 51

The bondsman could not claim in the face of that statute
that their obligation had been fulfilled when there was an
announcement of "ready" or when the case went to trial
because they would have executed the bond with full
knowledge of the statute which gave their principal this
right.

§ 15aa. Bond, Forfeiture and Relief. Sureties on
supersedeas bond are not liable for the failure of the de-
fendant to appear for re-trial when the obligation of writ
of error bond contained nothing more than, "surrender
himself in execution of the judgment and sentence ap-
pealed from as said court may direct, after the judgment
and sentence of said District Court against him shall be
affirmed.' » U. S. vs. Murphy, 261 Fed. 751.

The death of a defendant after forfeiture is no defense
to a recovery on the bond. De Orozco vs. U. S., 237 Fed.
1008.

A petition for the remission of the penalty of a for-
feited recognizance under Sec. 1020, which authorizes
such remission in the discretion of the court whenever it
appears to the court that there has been no willful de-
fault of the party and that a trial can, notwithstanding,
be had in the cause, is properly signed by a person who
put up the money to indemnify the sureties, and who is
the real party in interest, and an allegation therein that
there was no willful default of the defendant is sufficient;
it being neither necessary nor proper to plead the evi-
dence. The relief from forfeiture is in the discretion of
the court under this section. U. S. vs. Smart, 237 Fed.
978; U. S. vs. Jacobson, 257 Fed. 760. See also sec. 4a.

A bail bond should conform in all substantial particu-
lars to the requirements of the law of the state in which
the commissioner is sitting, under Sec. 1014, and a judg-
ment on a bail bond cannot be set aside by the court after
the expiration of the term at which it was rendered, where
the bond was valid and the judgment was not a nullity.
U. S. vs. Buchanan, 255 Fed. 915.

The Court of Appeals for the Fifth Circuit in the case
of Anduaga vs. U. S. 254 Fed. 61, held that a bail bond is
not invalid because of a mere verbal inaccuracy, caused

52 Federal, Criminal Law Procedure.

by accidental transposition of words, which does not work
injury to any party in interest.

Before there can be a recovery of a bail bond, it must
appear that the offender was bailed by one qualified to
admit to bail. A recognizance is an obligation of record
entered into before some court of record and need not be
signed by the principal or the surety, while a bail bond
is signed by the party; the consideration being the release
of one accused from custody. Ewing vs. U. S. 240 Fed.,
241.

A bail bond is a contract between the sureties and the
government, and an action on it is a civil action, in which
the law is not required to be construed strictly, as in a
criminal proceeding, when the sufficiency of the pro-
cedure is to be determined. U. S. vs. Davenport, 266
Fed. 425.

§ 16. Challenges. — Section 819 of the Revised Stat-
utes allows the defendant twenty challenges, and the
United States five peremptory challenges, when the of-
fense is treason or capital. On the trial of any other
felony, the defendant is entitled to ten; and the United
States to six peremptory challenges; and in all other
cases, civil and criminal, each party shall be entitled to
three peremptory challenges. Under Section 335 of the
1910 Code, however, all offenses which may be punished
by death or imprisonment for a term exceeding one year
are felonious, and all other offenses misdemeanors, and
it is now an easy matter to determine just how many
challenges the defendant is entitled to. If, however,
there be more than one defendant, and the trial is had
without severance, the defense will be allowed no morp
challenges than if there were but one defendant on trial,
R. S. 819.

The number of defendants in the indictment, when
11 ley are all tried together, does not increase the number
of challenges, in other words the defendants, together,
are entitled to ten. Schwartzberg vs. U. S. 241 Fed. 348.
It would seem that there is no statutory reason and no
law rule of the trial court which would deny the trial
court the right, if he should think it in the interest of

General Provisions Applicable to the Practice. 53

justice, when there is more than one defendant, to in-
crease the number of peremptory challenges for such
defendants. There might be some local condition or
some acquaintanceship or some other attitude that
might make it quite appropriate to grant a number of
defendants additional challenges.

Challenges Under the New Code. -Heike vs. U. S.
192 Fed. 101. After consolidation of indictments, see
Emanuel vs. IT. S. 196 Fed. 317.

In a note to Jeff Harrison vs. United States, 163 U.
S., 140, as reported in the 41 Law Ed., at page 104, is a
very valuable compilation of the decisions involving the
following points:

As to trial by jury, how effected by Seventh Amend-
ment to the Constitution, New York Supreme Court Jus-
tices vs. United States, reported in 76 U. S. 282.

As. to jury, of what number; practice in regard to;
illness or insanity of one; thirteen or eleven jurors;
wrong person serving as juror by mistake: Silsby vs.
Foote, 14 Howard, 218; 14 Law Ed., 394, and the notes
on page 394 of the 14 Law Ed.

As to cause of challenges of jurors and their qualifi-
cations, Clinton vs. Englebrecht, 80 IT. S., 449, 13 Wal-
lace; 20 Law Ed., 659, and the note.

As to discharge or withdrawal of jurors before ver-
dict, effect of, United States vs. Perez, 9 Wheat., 578;
Vol. 6, Law Ed., 165.

As to impeachment of verdict by jurors; affidavit of
parties or third persons; affidavits of jury to sustain
verdict, Doss vs. Tyack, 14 Howard, 296; 14 Law Ed., 428.
and note thereunder.

Challenges to jurors; challenges to the array and to
the panel; challenges to individual jurors; peremptory
and for cause, full and complete note on page 104 of
Book 41, Law Ed.

§ 16a. Consolidation of Indictments. — Under the Fed-
eral statute the court has the power to consolidate either
civil or criminal causes and when many indictments of
the same sort against the same party are consolidated
they merely become so many counts in the new bill. Such

54 Federal Criminal Law Procedure.

was the holding in the National bank prosecution of Kel-
tenbach vs. U. S. 202 Fed. 377, and after such consolida-
tion the former indictments becoming mere counts in the
last indictment, the defendant is entitled to but ten chal-
lenges because he is now on trial for but one indictment.
Keltenbach vs. U. S. 202 Fed. 377.

16aa. Consolidation of Indictments Continued. — Sec.
1024 R. S. U. S. invests trial judges with discretionary
power to require indictments charging one or more per-
sons with different though connected acts or transactions
of the same class of crimes or offenses to be consolidated
for purpose of trial; this, of course, signifies a judicial
discretion, soundly exercised, and not the uniting of of-
fenses which for .that reason would confound and prej-
udice the defendants. Kelly vs. U. S., 258 Fed. 403,
citing, Dolan vs. U. S., 133 Fed. 444. Similar power
exists independent of the statute, said the Supreme Qourt,
in Logan vs. U. S., 144 U. S. 263. See also Brown vs. U.
S., 143 Fed. 60.

For a discussion of this question, see McElroy vs. IT.
S., 164 U. S. 76; "Williams vs. U. S., 168 U. S., 382.

The moving spirit of the rule seems to be that while
distinct offenses may be consolidated they must be
"transactions connected together," and "of the same
class of crimes or offenses." See also Sec. 18.

§ 16b. Impeachment of Verdict by Juror. — Public
policy forbids that a juror shall be allowed to orally or
by affidavit or otherwise impeach his verdict, or in any
way disturb the result arrived at by himself and his fel-
lows.

In one or two of the states such practice is permitted,
but the rule in the United States courts is against such
procedure. McDonald et al. vs. Pless et al. 206, Fed. 262;
Doss vs. Tyack, 14 Fed. 296, 14 L. ed. 428; Hyde vs. U.
S., 225 U. S. 347. See also Section 25.

§ 17. Indictment and Return of Same. — The indict-
ment should always be returned into open Court by the
entire grand jury. The best practice is for the grand
jury to be polled when they report an indictment. Of
course, there must be at least sixteen present when in-

General Provisions Applicable to the Practice. 55

dictments are presented, which sixteen must include the
foreman.

In 172 Federal, page 646, Reingar vs. United States,
the Circuit Court of Appeals held that an indictment
delivered by the foreman alone to the clerk of the Court
when Court was not in session, is not a bill of indictment
within the meaning of the Constitution. I am sure this
opinion states the law.

In the same volume of the Federal Reporter, in the case
of the United States against Breese, the District Court,
upon a somewhat different state of facts, holds a little bit
differently, but the Reingar case, cited supra, is undoubt-
edly the law. See also Section 13.

§ 17a. Endorsements on Indictments. — In the case of
Williams against the United States, 168 U. S., 382, the
Supreme Court held that endorsements on the margin of
an indictment, referring to certain statutes which do not
support it, although they may have been erroneously sup-
posed to do so by the District Attorney who drew it, do
not make the indictment invalid, if it properly charges
an offense under another statute. The exact words of the
Court are as follows:

"It is said that these indictments were not returned under that
statute T5481], and that the above endorsement on the margin of each
indictment shows that the District Attorney of the United States
proceeded under other statutes that did not cover the case of ex-
tortion committed by Chinese Inspector under color of his office. It is
wholly immaterial what statute was in the mind of the District Attor-
ney when he drew the indictment, if the charges made are embraced by
some statute in force. The endorsement on the margin of the indict-
ment constitutes no part of the indictment, and does not add to or
weaken the force of its averments. We must look to the indictment
itself, and if it properly charges an offense under the laws of the
United States, that is sufficient to sustain it, although the representa-
tive of the United States may have supposed that the offense charged
was covered by a different statute."

To be in good form, the bill should be signed upon the
cover by the prosecuting officer and by the foreman of
the Grand Jury, and should be endorsed, "A true bill,"
and should bear the file marks of the clerk; but if the
bill be signed inside by the prosecuting officer and by
the foreman of the Grand Jury, the Courts hold that such
signatures are sufficient.

56 Federal Criminal Law Procedure.

It is entirely immaterial what provisions the various
states may make with reference to the forms of indict-
ment therein; the Federal statutes control in the enforce-
ment of the Federal criminal law.

17aa. Indictment — Place of Finding -Absence of
Judge — Counts.— The indictment must be found in the
division of the district where the offense was committed.
U. S. vs. Chennault, 230 Fed. 942. See also Sec. 13f.

The absence of the judge from the district during part
of the time of the deliberation of the grand jury does not
invalidate the indictment. Badders vs. U. S., 240 U. S.
391.

Later counts of the indictment may refer to earlier
counts without re-writing the substance thereof and may
make the same a part of such later count. Anderson vs.
U. S., 269 Fed. 65. But this method of pleading is not
approved. It is thought that each count should be com-
plete in itself even though the courts do permit such
pleading. An endorsement of an indictment is no part
of it even though it may erroneously recite a statute un-
der which it was found. Wessel vs. U. S., 262 Fed. 389.
See Par. 17a.

§ 18. Consolidation of Indictments.— By Section 1024
of the Revised Statutes, several charges aganist the
same person may be included in the same indictment, and
separate indictments against the same person for the
same class of crimes may be consolidated by the order of
the Court. Williams vs. United States, 168 IT. S., 388;
Pointer vs. United States, 151 U. S., 396; Logan vs. Unit-
ed States, 144 U. S., 301. In the case of United States
against Dietrich, 126 Fed., 670, the doctrine is made clear-
er by being distinguished, and the Court there holds two
persons cannot be indicted in the same count, one for giv-
ing, and the other for receiving bribe.

The case of McElroy vs. United States, 164 U. S., 76,
does not in decision or dictum differ from the above au-
thorities. The inquiry in that case was, "whether counts
against five defendants can be coupled with a count
against part of them, or offenses charged to have been
committed by all at one time, can be joined with an-

General Provisions Applicable to the Practice. 57

other and distinct offense committed by part of them
at a different time. ' ' The Court in that case held that the
statute did not authorize that to be done, and speaking
thereupon, said: "It is clear that the statute (1024) does
not authorize the consolidation of indictments in such a
way that some of the defendants may be tried at the same
time with other defendants charged with a crime differ-
ent from that for which they all are tried. '; This deci-
sion, of course, does not interfere with the statute, or the
doctrine announced by Mr. Justice Harlan in the Wil-
liams case, cited supra, that, "The indictments against
the same person charging offenses of the same kind,
provable by the same sort of evidence, can be consoli-
dated and tried together without embarrassing the ac-
cused in making his defense. " This doctrine is approved
in Olson vs. United States, 133 Fed., 852; Dolan vs.
United States, 133 Fed., 447, and distinguished, but not
controverted, in Betts vs. United States, 132 Fed., 240.
See Section 16.

§ 19. Question of Duplicity in Indictment. — It is too
late to raise the question of duplicity after verdict by
motion in arrest of judgment. Morgan vs. U. S., 148 F.,
190; Bishop's New Crim. Proc, Vol. 1, Sections 442, 443;
U. S. vs. Bayard, 16 F., 376; Proler vs. U. S., 127 F., 509;
Conners vs. U. S., 158 U. S., 408. The safe practice is to
raise all questions speedily by exception or demurrer.

In Ammerman vs. U. S., 216; Fed. 326, the Circuit
Court of Appeals dismissed the indictment because of
duplicity. A charge that defendant attempted to rob
a mail clerk and put his life in jeopardy is not duplicitous.
Price vs. U. S., 218 Fed. 149.

19a. Duplicity Continued. — Felonies and misdemeanor
counts may be joined. Phillips vs. U. S., 264 Fed. 657.
The allegation of different intents is not duplicitous.
Boone vs. U. S., 257 Fed. 963.

The allegation of embezzlement of money and stamps
is not. McNeil vs. U. S., 246 Fed. 827.

A conspiracy to establish a house of ill fame, bawdy
house or brothel is not duplicitous. U. S. vs. Casey, 247
Fed. 362.

58 Federal. Criminal. Law Procedure.

An allegation that, "during April and May," is not.
Eisenberg vs. U. S., 261 Fed. 598.

Duplicity is the joinder of two or more distinct of-
fenses in one count. Epstein vs. U. S., 271 Fed. 282.
Only one offense can be charged in the same count. U.
S. vs. Blakeman, 251 Fed. 306.

An indictment which charged that an accused gave an
order for certain drugs and that he failed to preserve
a duplicate of the order, each constituting an offense, and
also failed to keep a record of the amount of the drug by
him dispensed, was held not to be duplicitous in U. S. vs.
Charter, 227 Fed. 331.

An indictment which charged in one count the three
several offenses denounced by the Espionage Act, Sec. 3,
is duplicitous and, of course, there can be no amending
thereof. U. S. vs. Demboski, 252 Fed. 894.

It seems under the last two foregoing authorities per-
missible to plead in the alternative and use the word
"and" wherever the statute uses the word "or."

So the doing of a thing and the attempting to do a
thing when denounced in that way by the statute may be
placed in the same count without being duplicitous, is
held in the last mentioned case.

§ 20. Confessions.— Because of the adoption by many
of the States of statutes which prescribe certain condi-
tions limiting or admitting confessions of those charged
with crime in evidence, it is well to bear in mind that no
statute bearing thereon has been passed by Congress. The
Fifth Amendment to the Constitution and Section 860
of the 1878 Revised Statutes, that bear upon such testi-
mony, are as follows:

" Nor shall any person be compelled, in any criminal case,

to be a witness against himself." — Fifth Amendment to the Constitution.

"No pleading of a party, nor any discovery or evidence obtained
from a party or witness by means of a judicial proceeding in this or
any foreign country, shall be given in evidence or in any manner
used against him or his property or estate in any court of the United
States in any criminal proceedings, or for the enforcement of any
penalty of forfeiture; provided, that this section shall not exempt
any party or witness from prosecution and punishment for perjury
committed in discovering or testifying, as aforesaid." — Section 860,
1878 Revised Statutes, U. S.

General Peovisions Applicable to the Practice. 59

Of course, the limitations and meaning of Section 860
have been determined and decided repeatedly. In 170
Federal, 715, Cohen vs. United States, the Court held that
it applied to bankrupt schedules, and that, therefore, such
schedules were not admissible against the bankrupt. The
contrary was held in United States vs. Brod, 176 Federal,
page 165, and the latter is perhaps the ranking authority.
In United States vs. Bell, 81 Federal, 830, the Court held
that the constitutional protection was broader than Sec-
tion 860, and in passing upon a prosecution for perjury,
alleged to have been committed in a statement made be-
fore a Pension Examiner by an ignorant person, such
statement was excluded on the proposition that while the
person appeared before the Examiner, and submitted to
the examination, yet such appearance was not conclusive
that the statement was voluntary, and that the constitu-
tional right of the person to remain silent had not in fact
been infracted. See also sec. 7.

The sole legal test, in the Federal courts, is whether
the same was free, voluntary, and without compulsion
or inducement of any kind. The fact that a con-
fession was made while the party was under arrest
is entirely immaterial, but it devolves upon the prose-
cution to show that the confession was voluntary. The
authorities conflict somewhat as to whether the Court
or the jury shall determine this question. The better
authority seems to be that the Court shall determine it,
because, manifestly, the admission of a confession to a
jury, under the thought and instruction that it must
determine, first, whether the same was voluntary before
they can give it consideration, would be entirely in-
adequate to sufficiently safeguard the interest of the de-
fendant. At page 588 of Bishop's Criminal Procedure,
that authority holds that the prosecution, in making
the opening statement to the jury, should not make any
detailed statements that show a confession to have been
made, for the reason that the admissibility of such con-
fession must first be passed upon by the Court. At page
619 of the same volume, the same author again announces
that whether a confession is voluntarv or not is to be

60 Federal Criminal Law Procedure.

determined by the Court, and cites Ellis vs. State, 65
Miss., 44; 7 Ana. St., 634; State vs. Crowson, 98 N. C,
595; Corley vs. State, 50 Arkansas, 305; also Section
1220 of the First Volume of Bishop's Criminal Pro-
cedure.

Underbill on Criminal Evidence, at page 161, para-
graph 126, says that the preliminary question, Was the
confession voluntary? bearing directly upon its com-
petency as evidence, must be, according to the majority
of the cases, decided by the Court as a mixed question
of law and fact. This statement is supported by a long
list of authorities, some of which go to the point of hold-
ing it error for the Court not to determine this question
before the confession is submitted to the jury. From a
careful consideration of such authorities, it may be stated
that the weight of the same is for the preliminary de-
termination by the Court of this question, before per-
mitting the confession to go to the jury.

In discussing the statement that the prosecution must
show that the confession is voluntary, Underbill, at page
161-162 of his work on Criminal Evidence, states that
many of the cases sustain this -proposition, and require
the state to show by some evidence that the confession
was freely and voluntarily made, but that other author-
ities sustain, at least in the absence of evidence to the
contrary, the very reasonable theory that a confession,
like every act or utterance which is the result of human
agency, is presumed to have been voluntary until the
contrary is shown. This latter view would throw the
burden of proving that the confession was involuntary
upon the accused; but whichever position is right, the
defendant is always entitled to show, by preliminary
evidence, that the confession was not voluntary, and it
is the duty of the Court, in determining the competency
of the confession, not only to consider the evidence of
the state, but the evidence elicited by the accused in his
favor, as well. In State vs. Fidment, 35 Iowa, 545; Ru-
fer vs. State, 25 Ohio, 464; State vs. Miller, 42 La., 1186;
Simmons vs. State, 61 Miss., 243; Commonwealth vs.
Culver, 126 Mass., 464; State vs. Kinder, 96 Mo., 548,

Geneeal Provisions Applicable to thf Practice. 61

the refusal, before the confession was admitted, to al-
low counsel for the prisoner to cross examine the wit-
ness as to the voluntary character of the confession, or
to allow the accused to testify and explain his mental
condition when it was made, or to show by the evidence
of others, that it was improperly obtained, were revers-
ible error.

In Hopt vs. Utah, 110 U. S., 574, the Court said that,
"the admissibility of such evidence (confessions) so
largely depends upon the special circumstances connected
with the confession that it is difficult, if not impossible,
to formulate a rule that will comprehend all cases, as the
question is necessarily addressed, in the first instance,
to the judge, and since his discretion must be controlled
by all attendant circumstances, the Courts have wisely
forborne to mark with absolute precision the limits of
admission or exclusion." This latter utterance, there-
fore, is the authority that binds in the United States
Courts.

It was also said, in Wilson vs. United States, 162 U.
S., 613, 40 Law Ed., 1090, that statements by an accused,
not under oath, voluntarily made in answer to questions
of a Commissioner, not as a confession of guilt, but as
explanations to avert suspicion from himself, are not
inadmissible because the Commissioner failed to inform
him that he could have the aid of counsel, or to warn
him that his statements might be used against him, or
to advise him that he need not answer. This reasoning,
of course, finds its support in the existence of extrane-
ous facts which have been discovered through the state-
ments of the accused, or otherwise, and such statements
are, therefore, admissible, though made involuntarily,
or though made to conceal guilt, and a different rule re-
lates to them from that which respects confessions which
are guarded by the great probability that the prisoner
has been influenced by his expectation of punishment or
of immunity, to speak what is not true.

The leading case respecting a judicial determination
of what is voluntary and what is not voluntary, is the
case of Brain vs. United States, 168 U. S., 532, 42 Law

62 Fedeeal Criminal Law Procedure.

Ed., 568. In that case, the accused was an officer of a
ship upon which a triple murder had been committed.
He and a subordinate were placed in irons, and carried
into port. The prisoner Bram was taken before a detec-
tive at Halifax, who searched him, and stripped him,
and took what the bill of exceptions called "extraordi-
nary liberties" with him, and thereupon questioned him
as follows:

"When Bram came into my office, I said to him, 'Bram, we are trying
to unravel this horrible mystery. Your position is rather an awk-
ward one. I have had Brown in this office, and he made a statement
that he saw you commit the murder." He answered, 'He could not
have seen me. Where was he?' I said, 'He states he was at the
wheel.' 'Well,' said he, 'he could not see me from there." I said, 'Now
look here. Bram, I am satisfied that you killed the Captain from all I
have heard from Brown, but,' I said, 'some of us here think you could
not have done all that crime alone. If you had an accomplice, you
should say so, and not leave the blame of this horrible crime on your
own sholders.' He said, 'Well, I think, and many others on board
the ship think, that Brown is the murderer, but I don't know anything
about it.' He was rather short in his replies."

Because of the admission of this testimony or confes-
sion, the Supreme Court of the United States reversed
the judgment of conviction, and granted a new trial.
Compendiously stated, the rulings upon the same, by
that Court, were as follows: The use which was made
of the prisoner's statement precludes the prosecution
from saying that it was not used to his prejudice, and
after so using the testimony the prosecution will not be
heard to assert that the confession was not prejudicial,
because it did not tend to prove guilt. The sole question
with reference to the voluntary character of an alleged
confession depends on whether the making of the state-
ment was voluntary and without inducement or com-
pulsion, and not whether the particular communications
contained in it were voluntary or not. The mere fact
that a confession is made to a police officer while the ac-
cused is under arrest, in or out of prison, or is drawn out
by his questions, does not necessarily render a confession
involuntary, but, as one of the circumstances, such im-
prisonment or interrogation may be taken into account

General Provisions Applicable to the Practice. 63

in determining whether or not the statements made by
the prisoner are voluntary.

The above decision is cited and applied in Sorenson
vs. United States, 143 Federal, 820, by the Circuit Court
of Appeals for the Eighth Circuit, to the protection of
a defendant from the use of a confession which was se-
cured from him by a Post office Inspector, who had ad-
vised the defendant that he, the Inspector, had an ab-
solutely good case against him for robbing the post office,
and advised him that the thing for him to do was to plead
guilty and throw himself on the mercy of the Court, and
that by doing so, the offense against the State laws, would
probably be overlooked.

It may be stated, therefore, as a general proposition,
that the sole question for determination in the Federal
practice is, whether the confession was voluntary — that
is, made without inducement or offer or promise of any
sort.

§ 20a. Confession Continued. — It is not an element
of a voluntary confession under the federal authorities
and under the common law rule that such confession
shall have been made after warning, nor when not under
arrest. Shaw vs. U. S., 180 Fed. 348. Upon request
by the accused it is proper to specially instruct that a
confession must be found to have been made voluntarily
before it could be considered. Shaw vs. U. S., 180 Fed.
348. See also U. S. vs. Lydecker, 275 F. 976.

Of course it will be borne in mind, as heretofore sug-
gested, that the court passes upon this preliminary in-
quiry before submitting the testimony to the jury.
8 20b. Confession Continued. — See Sec. 4. a.
Evidence illegally secured on a warrant may be used
when no motion is made to return it, MacKnight vs. U.
S., 263 Fed. 832.

The court will order property illegally secured re-
turned, U. S. vs. Meresca, 266 Fed. 713; and such order
cannot be appealed from, U. S. vs. Marquette, 270 Fed.
214; see also U. S. vs. Friedburg, 233 Fed. 313; Flags-
vs. U. S. 233 Fed. 481; U. S. vs. Schallinger, 230 Fed.
290.

64 Federal, Criminal. Law Procedure.

Evidence that has been given up cannot be recovered
was held in Linn vs. U. S. 234 Fed. 543.

The case of Adams vs. N. Y., 192 U. S. 575, seems to
be challenged by U. S. vs. Abrams, 230 Fed. 313, in re
Marx, 255 Fed. 344, and Silverthorne vs. U. S. 40 Sup.
Ct. Rep. 182. Affirmance of the far reaching doctrines
is made, that, evidence which has been illegally secured
by the government must be returned upon application
and cannot be made use of by the government in any
way; in other words the government cannot advantage
by its own wrong; to the same effect are cases cited un-
der Sec. 4a herein. While the case of Lyman vs. U.
S. 241 Fed. 945, holds to the old doctrine of 192 U. S., the
Adams case, that papers which are pertinent to the issue
which may have been illegally taken does not constitute
a valid objection to their admissibility.

The case of U. S. vs. Gouled, 253 Fed. 242, which per-
mitted the introduction of certain written evidence
seized under a search warrant and in which the court
refused to quash an indictment found upon such testi-
mony was reasoned out, by the Supreme Court of the
United States in the same case at page 261, 41 Sup. Ct.
Rep., for the proclamation of the doctrine that evidence
illegally taken by improper searches and seizures must
be returned and conviction set aside, if secured thereon.

These observations are made because a confession at
common law, must have the element of the voluntary
before it is admissible.

The question of the admissibility of a confession is
for the court but when the evidence is conflicting, the
court may submit it to the jury with instructions to dis-
regard it if not voluntary. McCool vs. U. S. 263 Fed.
55; see also U. S. vs. Oppeinheim, 228 Fed. 221.

Where a defendant, charged with stealing a package
from the postoffice, where he was employed, was taken
in charge by inspectors and held twenty four hours,
without being permitted to communicate with friends or
procure counsel, but compelled to sleep in the room with
one of them and being told by them that they believed
him guilty and had evidence which made it look bad for

General Provisions Applicable to the Practice. 65

him, a confession, written by the inspectors, but signed
by him at the end of that time, held involuDtary, and not
admissible against him, by the Court of Appeals, in,
Purpura vs. U. S., 262 Fed. 473.

There is no oppression so oppressive as official op-
pression— that oppression which under the majesty of
the law asserts and carries forward a wrong.

A confession secured from accused while he was in
jail through questions asked by an agent of the depart-
ment of Justice, without accused having been warned
of his right to remain silent and of the effect of his an-
swers as evidence against him, was secured by compul-
sion, contrary to Const. U. S. Amendment V. U. S. v.
Kallas 272 F. 743.

§ 21. Admissibility of Documentary Evidence Se-
cured Illegally. — In line with the thought that we have
been pursuing is the inquiry as to whether documentary
evidence, letters, papers, etc., secured in violation of the
Constitutional provision guaranteeing the private citi-
zen against illegal searches and seizures, can be used
in evidence against the party from whom they were so
secured. The case of Adams vs. New York, 192 U. S.,
586, 48 Law Ed., 577, by the Supreme Court, holds that
the admissibility of documentary evidence, tending to es-
tablish the guilt of an accused of the offense charged,
is not affected because it was secured in violation of the
prohibition against unreasonable searches and seizures,
and the self-incrimination of an accused is not affected
by the introduction in evidence against him of certain
private papers found in the execution of a search war-
rant, where he did not take the witness stand in his own
behalf, as was his privilege, and was not compelled to
testify concerning the papers or make any admission
about them. This was a case that originated under the
gambling paraphernalia statute of New York City, and
the officers, armed with a search warrant under that stat-
ute, secured certain private papers that were not called
for, nor included, in the search warrant, but which were
decidedly damaging testimony against the defendant,

and upon this state of facts the direct question above
5

66 Federal Criminal Law Procedure.

suggested was passed upon. The Supreme Court lays
down the rule in the following terms, quoting from
Greenleaf, Volume 1, Paragraph 254a:

"It may be metioned in this place that though papers and other
subjects of evidence may have been illegally taken from the possession
of the party against whom they are offered, or otherwise unlawfully
obtained, this is no valid objection to their admissibility, if they are
pertinent to the issue. The Court will not take notice how they were
obtained, whether lawfully or unlawfully, nor will it form an issue

to determine that question Evidence which is pertinent to the

issue is admissible, although it may have been procured in an irregu-
lar, or even in an illegal manner. A trespasser may testify to perti-
nent facts observed by him, or may put irt evidence pertinent articles
or papers found by him while trespassing. For the trespass, he may
be held responsible civilly, and perhaps criminally, but his testimony
is not thereby rendered incompetent."

In line with the cases and authorities cited above was
the holding of District Judge Thompson in the case of
Firth-Sterling Steel Co. vs. Bethlehem Steel Co., 199,
Fed. 353, where the information in question consisted
of original drawings of armor-piercing projectiles sub-
mitted under orders of secrecy and the possession of
which was subsequently wrongfully obtained, but the
court said that the illegality of the method by which evi-
dence has been obtained does not affect its admissibility.
See also Hartman vs. U. S., 168; Fed. 30.

This doctrine has been approved and followed by the
Federal Courts, even though the property unlawfully or
irregularly seized belonged to a third person, as was de-
cided in U. S. vs. McHie et al., 196 Fed. 586. In that case
District Judge Sanborn held that a Federal Court has
power to impound books and papers, although the prop-
erty of a third person and unlawfully and irregularly
seized by officers of the government, where they are
shown to be essential evidence in a criminal case.

In Hardesty et al. vs. U. S., 164 Fed. 420, the Circuit
Court of Appeals for the Sixth Circuit decided in a per
curiam opinion that it is no objection to the admissibility
of evidence which is pertinent to the issue in a criminal
case that it was obtained by means of a search warrant
illegally issued or executed.

General Provisions Applicable to the Practice. 67

To the same effect was the decision of the Circuit Court
of Appeals for the Ninth Circuit in Lum Yan vs. U. S.,
193 Fed. 970, which determined that letters were not in-
admissible against the accused because unlawfully seized
by the authorities, where the search does not appear to
have been seriously resisted.

§ 21a. Method for Recovering Illegally Secured Evi-
dence.— A party may, upon the filing of a proper motion
setting forth the facts, secure from the court in which
the cause is pending an order directing the prosecution
to return to him such papers or evidence as was illegally
secured.

Certain inspectors having accompanied a marshal to
serve a warrant on defendants, arresting them for mis-
use of the mails in furtherance of a scheme to defraud,
remained and searched their office and seized their books,
papers, letters and documents, removing the same to their
office, whence they were ordered delivered to the clerk
of the court and sealed. Upon this state of facts, after
a motion had been filed to have the papers returned, Dis-
trict Judge Pollack, in U. S. vs. Mounday et al., 208 Fed.
186, held that, the material having been secured as the
result of an unconstitutional search and seizure, defend-
ants were entitled to have the same returned to them,
though such documents might contain incriminatory evi-
dence which the district attorney desired to submit to
the grand jury and use against them.

When, however, there is an element of the voluntary
surrender, no relief will be granted upon such an appli-
cation, and this applies to oral testimony by one. Powers
vs. U. S., 223 U. S. 303; Weeks vs. U. S., 232 U. S. 383;
U. S. vs. Hart, 214 Fed. 655; same case, 216 Fed. 374.

In Weeks vs. U. S., 232 U. S., 383, cited above, the
court held that while an incidental seizure of incriminat-
ing papers, made in the execution of a legal warrant,
and their use as evidence, may be justified, and a collat-
eral issue will not be raised to ascertain the source of
competent evidence, Adams vs. N. Y., 192 U. S. 585,
that rule does not justify the retention of letters seized
in violation of the protection given by the Fourth Amend-

68 Federal, Criminal Law Procedure.

ment where an application in the cause for their return
has been made by the accused before trial.

Continuing, the court said in that cause that the court
has power to deal with papers and documents in the
possession of the district attorney and other officers of
the court and to direct their return to the accused, if
wrongfully seized, and where letters and papers of the
accused were taken from his premises by an official of
the United States, acting under color of office, but with-
out any search warrant and in violation of the constitu-
tional rights of accused under the fourth amendment,
and a seasonable application for return of the letters
and papers has been refused, and they are used in evi-
dence over his objections, prejudicial error is committed
and the judgment should be reversed.

§ 21aa. — Method for Recovering Illegally Secured
Evidence Continued. — Congress having specifically au-
thorized United States Commissioners to issue warrants
in certain cases, and having conferred no authority to
issue warrants to search and seize letters, writings, etc.,
used, or intended to be used, in the execution of a scheme
to defraud, in the execution of which the mails are used,
a United States Commissioner had no authority to issue
a search warrant for such purposes, and, upon motion
by the defendant, the papers were ordered restored to
him, in U. S. vs. Jones, 230 Fed. 262.

One who kills an officer who is acting under a void
search warrant committs no offense, U. S. vs. Pitotto,
267 Fed. 603.

Where evidence has been secured illegally, and, then
introduced in evidence on the trial, over objection, a
new trial will be granted, U. S. vs. Hill, 263 Fed. 812.

An order denying the restoration of documents al-
leged to have been illegally taken, and being held as evi-
dence, is an interlocutory order in a criminal case, and
under Sec. 128, of the Judicial Code, is not reviewable
by the Court of Appeals. Coastwise Lumber Co. vs. U.
S., 259 Fed. 847.

§ 21b. Production of Documents. — The constitutional
guarantees protect the defendant in a criminal cause

General Provisions Applicable to the Practice. 69

against involuntary disclosures or against unreasonable
searches and seizures. In Schatz vs. Winton Motor Car-
riage Co., 197 Fed. 777, Circuit Judge Noyes held that
the production of documents, by the adverse party in ac-
tions at law in Federal Courts is governed by the Stat-
utes of the United States, and under such statutes a
court at law cannot compel a party in an action to pro-
duce documents in advance of the trial for the inspec-
tion of the other party, citing Carpenter vs. Winn, 221
U. S. 533.

§ 21bb. Production of Documents Continued.

It is error to demand, that the defendant produce
papers in his possession. But where the court directs
the jury to disregard the demand, and the defendant
later offered in evidence all of the checks which the
prosecution had previously demanded from him, the
error was cured; or, at any rate, was not a reversable
error under the circumstances. Bain vs. U. S., 262 Fed.
664.

§ 22. Comments or Improper Argument of District
Attorney. — Too much care cannot be given by counsel to
words they use in addressing the jury. Attorneys for the
prosecution and the defense should be jealous indeed to
guard themselves from remarks that are unsupported by
the testimony, or that are individual opinions rather than
legitimate deductions from the law and the evidence. One
of the abuses of the modern practice is the proneness of
the attorneys defending to express unbounded belief in
the innocence of their client, even to the staking of per-
sonal reputation. Great censure also is due the prosecu-
tion for intemperate and immoderate expressions, due
ofttimes to the vehemence of opposing counsel but never
excused. The only remedy the prosecuting officer has
against such unfair argument is to appeal to the trial
judge. Defending counsel can save the point by bill of
exception, and present the language of the prosecuting
officer to the appellate court for review. Trial judges
should, therefore, be extremely careful to enforce, by
proper ruling, not prejudicial to the interests of the
prosecution or the rights of the defendant, a fair argu-

70 Fedeeal Criminal Law Peocedtjee,

ment, devoid of personal opinions, and as free from
prejudicial and inciting statements as fair discussion will
permit. In the case of Williams against the United
States, 168 U. S., 382, the defendant was convicted of
extortion in exacting money from Chinese immigrants
for permission to land and remain in the United States.
The defendant proposed to show by witnesses that while
he was acting in such official position, there were more
females sent back to China than ever were sent back be-
fore or after. The representative of the government ob-
jected to this evidence, as irrelevant, saying in open
court, and presumably in the hearing of the jury: "No
doubt every Chinese woman who did not pay Williams
was sent back." The Supreme Court said: "The obser-
vation made by the prosecuting attorney was, under the
circumstances, highly improper, and not having been
withdrawn, and the objections to it being overruled by
the Court, it tended to prejudice the right of the accused
to a fair and impartial trial."

In Hall against the United States, 150 U. S., 76, a
judgment of the trial Court was reversed, because the
District Attorney was permitted to make an argument,
against the objection of the defendant, not based on evi-
dence, which tended to prejudice the jury against the
defendant. See also People vs. Mull, 167 N. Y., 247. In
the case of Lowdon against the United States, 149 Fed.,
677, this question was raised:. The attorneys for the de-
fendant had insisted that six men could not return a ver-
dict, nor could eleven; that it required twelve. The Dis-
trict Attorney, in answering that argument, said in sub-
stance that it was true that six could not return a ver-
dict, nor could eleven, and, that, as matter of fact, it did
take twelve; but that he would hate to be the obstinate
juror, for fear when he returned home, his friends and
neighbors, who possibly were not versed and familiar
with the various technicalities and intricacies of the law
might conclude that the jingle of the broken banker's
unlawful and illy gotten gold in his pocket had influenced
his action. The court, in that case, held that the argu-
ment was improper, and said: "We would not embar-

General Provisions Applicable to the Practice. 71

rass free discussion, so essential to proper administra-
tion of the law. We would not regard many hasty but
exaggerated expressions of attorneys made in the heat
of debate, which are not expected to become factors in
the formation of the verdict. We wish to follow es-
tablished rules, and to avoid introducing another ele-
ment of uncertainty in the trial of criminal cases by mak-
ing a new precedent for the reversal of judgments. The
difficulty of drawing a line between legitimate and im-
proper arguments admonishes us that the trial judge
often has a delicate and difficult task imposed on him;
but, under the circumstances of this case, considering
the character of argument, the refusal of the trial judge
to interfere at the time the objection was interposed, or
to correct the probable effect of the argument by a sub-
sequent instruction, and because it does not appear af-
firmatively to us that no injury was done to the defend-
ants, we are constrained to hold that the judgment should
be reversed and a new trial granted.' : See also Allen vs.
United States, 115 Fed., p. 4.

So, also, the District Attorney may not comment in
argument upon the failure of the defendant to offer evi-
dence of his previous good character. McKnight vs.
United States, 97 Fed., 208; Bennet vs. State, 86 Ga.,
401; Davis vs. State, 138 Ind., 11; Fletcher vs. State, 49
Ind., 124; Thompson vs. State, 92 Ga., 448; the People
vs. Evans, 72 Mich., 367; Lowdon vs. U. S., 149 F., 677.

Neither can the defendant, by questions, be compelled
to disclose evidence against himself, as, for instance, he
cannot be asked to produce the original, else a certified
copy will be permitted. McKnight vs. United States, 115
Fed., 972.

See U. S. vs. Snyder, 14 F., 554, where District At-
torney comments on failure of defendant to testify in
his own behalf. See also Dimmick vs. U. S., 121 Fed.,
638. Also case of Latham et al. vs. U. S., Circuit Court
Appeals 5th Circuit, 226 Fed. p. 000, decided in October,
1915, reversed because District Attorney said, "if it had
not been that a train was three hours late he would have
produced another witness."

72 Federal Criminal Law Procedure.

§ 22a. Procedure When Improper Argument or Re-
marks are Made. — When the prosecuting officer has in-
dulged in argument not supported by the record or makes
use of unfair and prejudicial statements either in argu-
ment or in the examination of witnesses, or at any other
time in the presence of the jury, the defense should at
once object, and thereupon it becomes the duty of the
court to instruct the jury not to consider what the pros-
ecuting officer has said, and the remark or argument or
statement should also be withdrawn by the prosecuting
officer. If this course is not taken, the defense should
except and preserve such exception by a proper bill. It
is also a safe practice to request a special charge govern-
ing the occurrence and if such special charge is not given,
to reserve a bill to that action of the court. Higgins vs.
U. S., 185; Fed., 710; Donaldson vs. U. S., 208; Fed., 4;
Stewart vs. U. S., 211;. Fed., 41; Fish vs. U. S., 215 Fed.,
545. Ammerman vs. U. S., 185 Fed., 1; Goodwin vs. U.
S., 200 Fed., 123; Eogers vs. U. S., 214 Fed., 981; Car-
lisle vs. U. S., 194; Fed., 827. In the above cases will
be found a number of illustrations as to what the court
will and will not permit.

In Carlisle vs. U. S., 194 Fed., 827, the court said that
the rule that a district attorney shall not refer in his
argument to defendant's failure to testify in his own
behalf does not prevent argument amounting only to a
claim that the government had made out a prima facie
case, which had not been contradicted.

In Ammerman vs. U. S., 185 Fed., 1, the court went
further than I have ever known it to go when it held
that where the district attorney in his opening argu-
ment said that "Gilliam's testimony must be taken as
true because the defendant had not gone on the witness
stand and denied it." And the court immediately, on
its own motion, stopped the attorney, and defendant's
counsel at the same time excepted, and the court then
said to the jury that the remarks of the assistant dis-
trict attorney were improper; that he had no right to
make them; and the jury should not draw any unfavor-
able conclusion or inference against defendant from

General Provisions Applicable to the Practice. 73

such remarks; that the law prohibited the assistant dis-
trict attorney from commenting as he had upon the de-
fendant's conduct in not contradicting Gilliam; that it
was a gross impropriety for him to have done so; and
that his statement should be entirely disregarded, and
later on the trial Judge told the jury in other and differ-
ent words that they must entirely disregard the improper
comment. Upon such a state of facts the Court of Ap-
peals held that there was no reversible error. This
holding is in direct contravention to the holdings of the
courts of many of the states and seems to be in conflict
with many of the decisions of the Federal Courts. The
jury's attention having been drawn to the fact that the
defendant had not testified, no possible charge or cau-
tion by the Judge could entirely eradicate the harm done.
The defendant is presumed to be innocent until his guilt
is established by competent evidence and beyond a rea-
sonable doubt, and his failure to offer any testimony
whatsoever must not be taken as any indication of his
guilt, nor shall such failure be referred to either by the
prosecution or by the court lest a fair trial as defined by
the law be denied. The Court of Appeals, in the case
under consideration, concluded by saying, "We cannot
refrain, however, from saying that counsel in their zeal
to enforce obedience of the law on the part of others
should not themselves grossly violate it," which ap-
pendage to an affirming opinion seems to warrant us in
saying that the court was extremely doubtful of the cor-
rectness of its position. It may be added here that the
court does not cite a single case in support of its position
when, as we know, the books are full of cases opposing
such a position. The Constitution provides that not one
shall be made to testify against himself. When the
prosecution is permitted to remark that the defendant
has not testified, this Constitutional guarantee is swept
away, as have the courts so frequently held.

In Goodwin vs. U. S., 200 Fed., 121, the United States
attorney used this language, "Do not let it be said, gentle-
men, that you as jurors did not have the nerve to attach
the death penalty, because, gentlemen of the jury, this

74 Federal Criminal Law Procedure.

case, if there ever was a case, is one in which it is mer-
ited.'; The report does not show just what steps the
defendant took to shield himself from this improper at-
tack, but the court said, "Admonitions of this character
to a jury by a prosecuting officer of the government can-
not be approved. They should not be resorted to by an
officer in the performance of his duty as a prosecutor.
On the other hand we cannot say that such deviation
from the path of strict propriety was such an error in
this case as would justify its reversal and a new trial.
After carefully reading the evidence we are of the opin-
ion that it had no influence upon the verdict of the jury."

In the case of Fish vs. United States, 215 Fed., 544,
the conviction was reversed because the district attorney,
in his argument to the jury, reflected upon the defendant 's
character which was not put in issue, and going beyond
any evidence in the case, and which were not withdrawn
or corrected when called to the attention of the court
and counsel. The opinion was rendered by Judge Bing-
ham of the Circuit Court of Appeals for the First Cir-
cuit, and among other things, he said, "What the dis-
trict attorney said * * was an appeal to the pas-
sion and prejudice of the jury. Immediately upon the
statement being made, counsel for the defendant objected,
and brought the matter to the attention of the court
and of counsel for the prosecution. It then became the
duty of the district attorney to withdraw the statement
and ask the jury to disregard it; and the court should
at that time have instructed the jury that the statement
was improper, and that they should not allow it to in-
fluence their action. * * The objectionable state-
ment being allowed to stand, defendant's counsel follow-
ed it up with an exception. The objection and excep-
tion were seasonably and properly taken. Odell Mfg.
Co. vs. Tibbetts, 212; Fed., 652." '

In the case of Stewart vs. U. S., 211 Fed., 41, the Court
of Appeals for the Ninth Circuit denounced as improper a
reference by the district attorney to the conviction of the
partner of the defendant, but refused to reverse. I as-
sume that the judges were so overwhelmed with the hor-

General Provisions Applicable to the Practice. 75

ror of the facts that they could find no way for the jury
to do anything but convict and therefore found that
there was no prejudicial error, but the fact remains that
the failure to reverse affords another comfort to the
prosecuting officer who is regardless of the record or of
the rights of the accused.

§ 22b. Instances of Improper Remarks and of Rem-
edies Therefor. It is improper to refer to the failure

of friends to appear. Hall vs. U. S., 256 Fed. 748. For
improper argument the cause will be reversed. Housiou
Ice Company vs. Harlan, 212 S. W. 779. Improper to
call the defendant a Jew. Gurinsky vs. U. S., 259 Fed.
378. When the jury is explicitly directed by the court
to disregard the improper argument of the Districl At-
torney, it is not error. Phelan vs. IT. S., 249 Fed. 43.

A statement by counsel as to what other juries have
done is improper. McKibben vs. Phila., 251 Fed. 577.
It is not admissible to mention other offenses. Paquin
vs. U. S., 251 Fed. 579. A reference by a prosecuting
attorney in his opening argument to the crimes, mur-
der, for which the defendant was serving a sentence at
the time of the killing of a prison guard, was unneces-
sary and prejudicial. Manuel vs. U. S., 254 Fed. 272.
Argument of counsel for the government in a prosecu-
tion for offering to bribe a member of a draft board, re-
ferring to the war with Germany, was held to be an ap-
peal to prejudice and reversible error. August vs. U.
S., 257 Fed. 388. The District Attorney is a judicial
officer and cannot use language that other advocates
might use. Fitter vs. U. S. 258 Fed. 567.

The remarks of the District Attorney which are
thought to be erroneous must be excepted to. Eisenburg
vs. U. S., 261 Fed. 598.

The vocal emphasis of a judge cannot be complained of
on appeal where no exception was reserved in the trial
court. Sims vs. U. S., 268 Fed. 234.

A withdrawal of the remarks and an instruction from
the court to the jury to disregard, and a caution to the
jury is oftentimes sufficient to cure the error. Green
vs. U. S., 266 Fed. 780; Gilmore vs. U. S., 268 Fed. 721;

76 Federal Criminal Law Procedure.

Kreuzer vs. U. S., 254 Fed. 35; Lowdon vs. U. S., 149
Fed. 677; Hardy vs. U. S., 256 Fed. 284.

It was prejudicial error for the prosecuting attorney
to tell the jury that if the defendant was acquitted, or,
awarded a suspended sentence that it would be a stench
in the nostrils of every citizen of Taylor County. Brook-
erson vs. State, 225 S. W. 375.

For questions held not improper see, Foley vs. U. S.,
241 Fed. 587; Rose vs. U. S., 227 Fed. 357. For remarks
held improper see, Sparks vs. U. S., 241 Fed. 778; Elmer
vs. U. S., 260 Fed. 646. A cross examination may be
prejudicial. Skuy vs. U. S., 261 Fed. 316.

An objection to unfair remarks, calling the attention
of the judge to them when made, together with an ex-
ception to the action of the judge, or his lack of action,
on the objection, are essential to review of unfair re-
marks, or their effect. Chambers vs. U. S., 237 Fed. 513.
In this case the court held that it was not error for the
prosecuting officer to speak of those who had dealt with
the defendants as victims when the evidence showed that
the land was not of the value represented by the defend-
ants.

A defendant having testified may be re-called for proper
cross-examination. Ching vs. U. S., 264 Fed. 639.

The failure of the defendant to testify may be charged
on by the court saying, that no presumptions shall arise
therefrom. Kreuzer vs. U. S., 254 Fed. 35; Robilia vs.
U. S., 259 Fed. 101.

The real and correct rule in the federal court is that
neither the court, nor the counsel shall comment up-
on the failure of the accused to testify. Act Mar. 16,
1878, 20 Stat. 30; Stout vs. U. S., 227 Fed. 799; see also
People vs. Watson, 111 N. E. 243.

For further improper remarks of District Attorney
and references therefor, see Gowling vs. U. S., 269 Fed.
215; Lynch vs. State, 193 S. W. 667.

The court must stop and instruct the jury to disre-
gard improper remarks, comments, or, argument. Hun-
ter vs. U. S., 264 Fed. 831.

General Provisions Applicable to the Practice. 77

Under the Act of February 26, 1919, error may be no-
ticed without exception. August vs. U. S., 257 Fed. 388.

§ 23. District Attorney in Grand Jury Room. — Hav-
ing already noticed something of the latitude permitted
the District Attorney or prosecution in argument before
the trial jury, it will not be out of place to call attention
to the limits within which the prosecuting officer must
work in the grand-jury room in seeking an indictment
or presenting evidence to the grand jury upon which he
expects an indictment to be returned. In United States
vs. Wells, 163 Federal, 313, Judge Whitson reviews, at
some considerable length, authorities along this line, and
from that opinion may be deduced the following rules
and limits: The District Attorney has no right to par-
ticipate in, nor be present, during the deliberations of a
grand jury, nor to express opinions on questions of fact,
or as to the weight and sufficiency of the evidence. The
District Attorney should not comment upon and review
the evidence and apply the law thereto for the purpose
of securing an indictment. He should not express an
opinion that the defendants are guilty, and that the
grand jury should return an indictment against them.
He should not be present while the jury is balloting up-
on the persons under investigation; and while the mere
presence of the prosecutor during the taking of a vote,
through inadvertence, and without intending to influ-
ence any action, is not necessarily fatal to a bill, yet where
the prosecutor expresses his opinion and urges the finding
of an indictment, it is clearly shown that the grand jury
must have been influenced thereby, and an indictment so
returned will be quashed.

§ 23a. Misconduct — How Raised. — A plea of miscon-
duct in the grand jury room must set out fully facts
and not conclusions. U. S. vs. Gradwell, 227 Fed. 243.

§ 24. Jury.— The right of trial by jury is the most
priceless boon enjoyed by the people under any govern-
ment. Text-book writers, newspaper writers, politicians,
and theorists may thunder as they will against the mis-
carriages of justice from the jury box; the system is
not only established for all time, but is as necessary as

78 Federal Criminal Law Procedure.

a bill of rights. No judge, however learned, no set of
judges, however impartial can approximate the justice
that is found and dispensed by the layman juror. A mind
trained in the law, or in any other science or profession,
holding the utmost purity of thought, is still short of an
ability to appreciate and weigh justly the motives that
actuate those who are permanently, or occasionally, or
unfortunately only once, charged with crime or offense.
The very people with whom the unfortunate walked, and
the very people who suffered or won as the unfortunate
suffered or won understand best the power that makes or
unmakes an intent of the human heart. That the Fed-
eral judge is permitted to give expression to his opinion
to the jury is no argument for the abolition of the jury.
The jury is strong, because it has twelve men on it, and,
therefore, twelve sets of different opinions, and the ad-
dition of a judge's opinion, coupled with the statement
that such opinion is not to influence or bind any member
of the jury, but strengthens the desire upon the part of
the individual jurors to think for themselves, and thus
bring to bear the best thought for the determination of
the human problem upon which they sit. Not the least
part of the gloriousness of American jurisprudence and
court history is due to the fact that the American court,
appellate or supreme, views with sacredness and honor
the verdict of the jury, and only for well-known reasons
will there be a disturbance of the same. The latitude
given the Federal judge in the matter of his charge is to
be entered with great care. The cream of the decisions
seems to indicate that a judge should never permit the
jury to know just what he thinks individually of the guilt
or innocence of the party on trial, but that he may indi-
cate, by instructions or otherwise, his opinion upon a par-
ticular piece of evidence, so that the truth or falsity of
that particular testimony may be determined with as
much ease as possible by the jury, it being the object of
a Court to ascertain the truth, and to seek every light
possible that will assist in finding just where the truth in
fact does lie. The Constitution of the United States pro-
vides for trials by jury, as do also the Amendments,

General Provisions Applicable to the Practice. 79

which have been denominated by the Supreme Court and
by great thinkers as the bill of rights of the American
people. Congress has provided, in the Revised Statutes,
for jury trials in both the Circuit and District Courts of
the United States, and has authorized the waiving of a
jury in the trial of civil cases in the Circuit Court, but
has not authorized the waiving of a jury in the trial of
civil cases in the District Court. United States vs. St.
Louis Railway Company, 169 Fed., 73; Low vs. United
States, 169 Fed., 86.

It is quite certain that a jury cannot be waived by one
who is charged with a felony, and it seems that the great
weight of authority is against the permission of a waiver
of a trial by twelve jurors when the crime is infamous or
a high misdemeanor. In Dickinson vs. United States,
159 Federal, page 801, the Circuit Court of Appeals for
the First Circuit speaking through Judge Putnam, re-
views the American authorities with reference to the
waiver of one on trial of his right to be tried by a jury
of twelve, when one of the originally selected twelve be-
comes ill or from other cause must be excused. In that
particular case, the juror who became ill was excused by
consent, which consent was in writing of both the de-
fendant and his counsel. The case being tried was one
denominated by the Federal statutes as a misdemeanor,
which, however, under the new Code, is infamous, be-
cause the punishment was penitentiary. In that case, the
majority of the Court holds that the second Section of
Article III. of the Constitution demands a trial by jury,
and that Thompson vs. Utah, 170 U. S., 343, has au-
thoritatively determined that a jury for a criminal cause
is to consist of twelve men, and that the Amendments to
the Constitution relating to jury trial do not in any
measure explain or abrogate or lighten the second Sec-
tion of the original Article III., and that in the trial of
criminal cases, not only the defendant is interested in
the maintenance of Constitutional guarantees, but that
the people themselves are interested and concerned.

It is true that District Judge Aldrich, in the foregoing
opinion, dissents, and in a well-reasoned and authority-

80 Federal Criminal Law Procedure.

supported paper; but one cannot well escape the force of
the suggestion that if a defendant may waive one and be
tried by eleven, why could he not waive eleven and be
tried by one. The safe rule, therefore, for all District
Attorneys, is ot see that there is a full panel, and if sick-
ness or other unavoidable interference causes the judge
to excuse a member of a jury, that the trial then be dis-
continued and begun all over again before the regulation
number. I have no doubt that a defendant and his coun-
sel may consent in writing and bind themselves in writing
as strongly as a document can be worded, and yet, in the
event of conviction, successfully raise the point by way
of motion in arrest of judgment, and cause a reversal of
the case. Dickinson vs. United States, 159 Fed., 809.

The case of Schick vs. United States, 195 U. S., 65, and
the case of Callan vs. Wilson, in 127 U. S., 549, are dis-
cussed and differentiated in the Dickinson case, cited
supra; and while the Schick and the Callan cases are
relied upon as authority by District Judge Aldrich in his
dissent, the majority opinion seems better founded, and
I would counsel the following of the Dickinson case until
the same is expressly overruled by higher authority. See
also 4 Fed. Statutes, p. 391.

The Dickinson case went to the Supreme Court but cer-
tiorari was dismissed without acting on the question in-
volved. 213, U. S., 92. A panel of jurors must be drawn
by those authorized by section 276 Judicial Code and no
one else, otherwise a challenge to the panel will be sus-
tained. U. S. vs. Murphy, 224 Fed. 554.

§ 24a. Comments of the Court. — Judge McDowell, in
U. S. vs. Foster, 183, Fed., 626, in taking issue with the
court in Garst vs. U. S., 180, Fed., 339, defined the right
of the trial judge to state his opinion on the facts to a
jury in a criminal or civil case, provided he explained to
the jury at the same time that such opinion has no bind-
ing effect. It is difficult indeed to understand how a court
could express itself with reference to a particular fact,
the existence, force and effect of which is paramountly
for the determination of the jury, under our system, with-
out influencing or affecting the jury.

Genebal Peovisions Applicable to the Practice. 81

In Adler vs. U. S., 182 Federal, 464, the appellate court
held that the trial court could not cross examine witness-
es in a way that would communicate to the jury his opin-
ion of the defendant's guilt, and in Sandals vs. U. S., 213,
Federal, 569, the appellate court held that certain obser-
vations by the trial court could not be removed by a gen-
eral charge that the jury was the sole judge of the credi-
bility of the witnesses. See also Foster vs. U. S., 188
Federal, 305, as to the care to be exercised by a court in
the expression of opinion. No one doubts, of course, the
power of the court to express an opinion. See collated
authorities in Young vs. Corrigan, 208 Federal, 431, nor
must the court be a mere presiding officer, for his func-
tion is to ascertain the truth and speed the progress"!)?
te^ialTKittenbach vs. XL S., 202 Federal, 379, but
there should be as little entrenchment as possible upon
the province and field of the jury. The right to a jury
trial is priceless and in this age of enlightenment a jury
is entirely capable of finding the light without the aid of
judicial observation, which might lead the jury to think
the way the court leads rather than to incur the displeas-
ed mind of the court. It is not that the jury fears pun-
ishment at the hands of the court, but the jury looks up
to the court and becomes, as it were, worshipers at the
shrine of the correctness of the Judge's opinions and in
their newness to court atmosphere, they tremble lest their
judgment as to the credibility of a witness or the guilt
of the accused might be at fault, especially since the
court has clearly indicated what he thinks about it. And
so the opinion of one man is substituted for the opinion
that should be the product of twelve minds hard at work
with all the guides that experience has given them.

The court may express his opinion in his charge rela-
tive to the failure of the plaintiff to produce a certain
witness, where the jury was given to understand that it
was not bound by such an opinion. Young vs. Corrigan,
210 Federal, 442.

§ 24b. Comments and Attitude of the Court. — What
has been heretofore said with reference to the impar-
tiality of the presiding judge and the concealment of his
6

82 Federal, Criminal, Law Procedure.

individual opinion as to the guilt or innocence of the
defendant, and particularly as to his guilt, cannot be too
often repeated. Now that the country is becoming more
thickly settled and the people are further removed from
the birth of their government and, therefore, less in love
with it, every enforcer of the law must stand clearly un-
baised and determined to meet out exact justice by the
application of the well-known constitutional guarantees
and by the beaten paths of the law.

The court's comment must be judicial and dispassion-
ate and leave the jurors free to exercise their independ-
ent judgment. Shea vs. U. S., 251 Fed. 445; Sylvia vs.
U. S., 264 Fed. 593.

The court should not commit a witness for the defend-
ant for perjury in the presence of the jury. McNutt vs.
U. S., 267 Fed. 670.

The court should not cross-examine a witness in such
a way as to use a prejudicial hypothetical case, before
the jury not warranted by the evidence and tending to
mislead the jury and prejudice them against the defend-
ant. McCallum vs. U. S., 247 Fed. 27. He should not so
instruct the jury as to limit the presumptions that really
belong to the defendant. McCallum vs. U. S., 247 Fed.
27. Another evidence of improper questioning by the
court will be found in Manuel vs. U. S., 254 Fed. 272.

It is quite improper for the court to observe that
: practically all whisky cases show half-pint bottles,"
on the trial of a man charged with a whiskey violation.
Whiting vs. U. S., 263 Fed. 477. The court may not, in
submitting a defense, criticise the doctrine upon which
such defense is based, and if he does so it is reversible
error. Bergen vs. Shaw, 249 Fed. 466.

The reviewing courts always permit the trial judge,
in a judicial and fair manner, to direct the attention of
the jury toward the ascertainment of the truth, even
though, such truth may indicate the court's opinion, pro-
vided he then certainly instructs the jury that they are
not to be guided by his opinion but are to make up their
own conclusions. Balcom vs. U. S., 259 Fed. 779; Clark
vs. U. S., 265 Fed., 104; Gross vs. U. S., 265 Fed. 606;
Little v. U. S., 276 F. 915.

i i-

Geneeal Peovisions Applicable to the Peactice. 83

The court may instruct a verdict of guilty under cer-
tain conditions. Horning vs. D. C, 41 Sup. Ct. Kep. 53.

§ 25. Care of Jury. — Text-book writers, judges, and
statute makers cannot well formulate rules with reference
to the care of juries that can be invariably followed. Un-
der most jurisdictions, jurors in the trial of criminal cases
are kept together and not permitted to separate, being
under the constant surveillance of bailiffs or deputies.
This care and espionage of the jury is not necessarily
due to the distrust of the jury itself, but is ofttimes con-
sidered as a right belonging to the jury. When that
body has returned its verdict, no one should question its
sincerity, honesty, and cleanness, and every safeguard
that keeps the jury from unauthorized and outside per-
sons, thereby making improper advances impossible and
improbable, lends weight and force and purity to its
verdict, and thus tends to convice the most common mind
of the righteousness of the ultimate conclusion. It is
not alone necessary to avoid evil — the thoughtful man
avoids the appearance even thereof. Newspapers, letters,
conversations with outsiders, telephone messages, and
telegrams should all alike be kept from the jury, or else
go to the jury under the surveillance of the Court.

In Marrin vs. United States, 167 Federal, 951, the Court
refused to set aside a verdict upon a motion made by the
defendant to the effect that newspapers relating to the
case had been read by the jurors during the trial; and
while the facts disclose that the jurors themselves testi-
fied that they were not influenced by the newspaper state-
ments, yet it does seem that we would have felt a great
deal better had there been no such case reported. Of
course, after a juror has rendered his verdict, he is slow
to answer that any part thereof was shaped or rendered
or assisted by anything that he may have read in a news-
paper. It is a safer plan to keep the paper from the
jury, and if prejudicial articles do come into the hands of
the jury and this fact be ascretained by the Court, the
jury should be discharged, or, if the fact is not known
until after the verdict, then a new trial should be granted,
unless it clearly appears that no prejudice was worked to

84 Federal Criminal Law Procedure.

the defendant. In the case of Callahan vs. Chicago, 158
Federal, 988, the Court held that he would not permit the
jurors to testify to the effect upon themselves of an at-
tempt made to influence their verdict. They were per-
mitted to testify to any facts showing attempts of others
to improperly influence their verdict, but it is for the
Court to determine whether or not the attempts -shown
are of a character that the verdict may have been im-
properly influenced thereby.

§ 25a. Care of Jury Continued. — The jury must be
kept together and it is unsafe to make any other rule;
yet in the case of Elder vs. U. S., 243 Fed. 84, the Circuit
Court of Appeals for the Ninth Circuit refused to re-
verse the conviction on the ground that a juror had ab-
sented himself for twenty minutes during which time he
had gone to his office, there being no circumstances shown
to justify an inference of possible injury to the defend-
ant's rights. The decision seems to be justified by the
case of Holt vs. U. S., 218 U. S., 245.

The isolation of the jury and its aloofness and its care
by trained and trustworthy bailiffs ought never to be
abrogated. It is a protection to the jury itself. It is
a protection to the prosecution. It is a protection to the
defendant.

A United States marshal in charge of a jury is not per-
mitted to make remarks as to the penalty that might be
imposed in the event of a conviction. Chambers vs. U.
S., 237 Fed. 513.

A full note on the reading of papers by jurors will be
found in 46 L. R. A. (N. S.), 741. But the careful judge
keeps the papers away from the jury. Jurors are just
men and, therefore, are amenable, often, to intimations
or suggestions that might, upon their face, appear per-
fectly harmless.

The voice of the jury ought to be heeded by all the
people, and, it will be, when all of the people feel that
every possible extraneous and improper influence has
been kept away from the body during its deliberations
and service.

General Provisions Applicable to the Practice. 85

§ 25aa. Setting Aside Verdict. — See Section 16b and
latter part of Section 16.

In the case of Colt vs. U. S., 190 Federal, 305, the
Court refused to set aside a verdict, even though it Avas
shown that one of the jurors, while deliberating on the
case, had secured a copy of the statute and had read
that portion of it which bore upon the case he was trying.

§ 26. Evidence of Good Character. — If there be a dif-
ference in the rule of evidence as adopted by the various
appellate Courts of the different states, respecting the
admission of testimony as to the good character of the
defendant, the rule in the United States Courts, as out-
lined in the ease of Edgington vs. United States, 164 U.
S., 361; 41 Law Ed., 467, is that evidence of a defend-
ant's general reputation for truth and veracity is ad-
missible on a prosecution, not merely to give weight to
his personal testimony in the case, but to establish a
general character inconsistent with guilt, whether he has
testified or not; and a charge to the jury that if they
have hesitancy as to the defendant's guilt, then they may
consider as important the testimony as to his good charac-
ter, is erroneous, as limiting the effect of such testimony
to a doubtful case. The identical language of the Court
upon this question is as follows:

"It is not necessary to cite authorities to show that in criminal
prosecutions the accused will be allowed to call witnesses to show that
his character was such as would make it unlikely that he would be
guilty of the particular crime with which he is charged; and as here
the defendant was charged with a species of crimen falsi, the rejected

evidence was material and competent It is impossible, we think.

to read the charge without perceiving that the leading thought in the
mind of the learned judge was that the evidence of good character
could only be considered if the rest of the evidence created a doubt
of defendant's guilt. He stated that such evidence 'is of value in
conflicting cases,' and that if the mind of the jury 'hesitates on any
point as to the guilt of the defendant, then you have the right and
should consider the testimony given as to his good character.' What-
ever may have been said in some of the earlier cases to the effect that
evidence of the good character of the defendant is not to be considered
unless the other evidence leaves the mind in doubt, the decided weight
of authority now is that good character, when considered in connection
with the other evidence in the case, may generate a reasonable doubt.
The circumstances may be such that an established reputation for good

86 Federal Criminal Law Procedure.

character, if it is relevant to the issue, would alone create a reason-
able doubt, although without it, the other evidence would be con-
vincing."

§ 26a. Good Character Becomes a Fact. — In the case
of Searway vs. U. S., 184 Federal, 716, Circuit Judge
Hook, speaking for the Circuit Court of Appeals for the
Eighth Circuit, said that evidence of the good charac-
ter of the accused is admissible on all criminal trials
whether the other evidence leaves the mind in doubt or
not; and when established, it becomes a fact in the case,
to be considered with all other facts in determining the
final issue of guilt or innocence. But in absence of evi-
dence presumption cannot be considered evidence. Price
vs. U. S., 218, Federal, 149. Chambliss vs. U. S., 218
Federal, 154.

§ 26b. Charge on — Refused When. — A special charge
on the presumption of good character, when directed at a
particular fact, and when the general charge of the Court
contains an instruction to the jury that the defendant is
presumed to be of good character, may be refused. U.
S. vs. Smith, 217 Federal, 839.

§ 26bb. Charge on Good Character. — The trial court
in its charge on good character should not minimize its
importance. In the case of Perara vs. U. S., 235 Fed, 515,
the Court of Appeals reversed the conviction on the
ground that the trial court committed error when he,
after charging on good character, stated that persons of
high character frequently committed crimes.

Where the court has fully and clearly charged on good
character, he may properly refuse a requested charge to
the effect that good character itself may generate a rea-
sonable doubt of guilt. Le More vs. U.S., 253 Fed. 887.

§ 26c. Proof of Other Offense.— In Bishop's New
Criminal Procedure, 2nd Ed., Vol. 2, page 961, it is stated
as fundamental that the state cannot prove against a
defendant any crime not alleged either as foundation for
a separate punishment or as aiding the proofs that he is
guilty of the one charged, even though he has put his
character in issue. In support of this doctrine a long
list of authorities is cited, which include U. S. vs. Mit-

General, Provisions Applicable to the Practice. 87

chell, 2 Dall., 348. The same authority, at page 963, main-
tains that even where offenses are of a like sort, evidence
of one is not ordinarily admissible in proof of another; as
on a trial for larceny, to show that the defendant has
committed other and disconnected larcenies; or for riot,
that he has engaged in other riots; or for the murder of
a particular person, that at another time and place he
murdered or threatened another person; or for burglary
in one county, that he committed the like in another;
hence, a fortiori distinct crimes of other sorts than the
one on trial are inadmissible. Of course when a detail
of the res gestae would include offenses other than that
on trial, as that they are linked together, or as that the
transaction is a continuing one, such testimony is ad-
missible.

The particular question under discussion is treated at
some length in Dysar vs. U. S., 186 Federal, 620, by the
Circuit Court of Appeals for the Fifth Circuit, in which
case the prosecution was allowed to prove, over the de-
fendant's objection, that the defendant had been con-
victed and had served a penitentiary sentence and that
the defendant had also been indicted in a third jurisdic-
tion and that he had gone under an alias in a fourth
jurisdiction and had been in the penitentiary in other
jurisdictions. There were two defendants on trial and
the Court held that such procedure was erroneous as to
both of the defendants and reversed the cause. In the
discussion the court cited Section 192 of Wigmore on
Evidence in the following words:

"This principle has long been accepted in our law. That the doing
of one act is in itself no evidence that the same or a like act was
again done by the same person has been so often judically repeated,
that it is a commonplace."

A very exhaustive discussion then follows, citing the
cases State vs. Lapage, 57 N. H., 245; Kansas vs. Adams,
20, Kansas, 311; Commonwealth vs. Jackson, 132, Mass.,
16; State vs. Saunders, 14, Oregon, 300; Booth vs. U. S.,
139, Federal 252; People vs. Molineaux, 168, N. Y., 264;
1st Wigmore on Evidence, Section 192, and the court

88 Federal Criminal Law Procedure.

then proceeds: "Of course there are many instances in
which evidence of the commission of other offenses is
necessarily admissible. One instance, often referred to
in the books, is where the commission of one offense is
a circumstance tending to show the commission of the
offense for which the defendant is on trial. The fact that
the defendant charged with homicide stole an ax or a
gun with which the killing was done; the stealing of the
weapon, though a distinct offense, would necessarily be,
in the very nature of the case, competent evidence against
him on his trial for homicide. The passing of other
counterfeit money of the same character as that which
the defendant is charged with passing, in the case on
trial, would be admissible to show guilty knowledge or
intent," Eegister vs. U. S., 186 Federal, 624. Convic-
tion reversed in Talliaferro vs. U. S., 213 Fed. p. 25,
because evidence of defendant's house being an assigna-
tion place was admitted when she was on trial for selling
beer.

26 d. Proof of Other Offenses Continued.— When
the defendant testifies he may be asked about other
crimes he has committed for impeachment purposes only.
MacKnight vs. U. S., 263 Fed. 832.

Proof of other offenses when connected with the one be-
ing investigated to show a common and continued pur-
pose is admissible. Hall vs. U. S., 235 Fed. 870; Mitchell
vs. U. S., 229 Fed. 358; Paris vs. U. S., 260 Fed. 529; Deg-
nan vs. IT. S., 271 Fed. 291; Sears vs. U. S., 264 Fed. 257;
Weathers vs. U. S., 269 Fed. 254; Nee vs. U. S., 267 Fed.
84.

Care must be taken in this respect and if this rule is
not strictly followed the admission of such proof will be
prejudicial and reversable error. Hall vs. U. S., 256
Fed. 748; Paquin vs. U. S., 251 Fed. 579; Shea vs. U. S.,
236 Fed. 97; Youmans vs. U. S., 264 Fed., 425; McDonald
vs. U. S., 264 Fed. 734; Holzmacher vs. U. S., 266 Fed.
979.

§ 26 e. Good Character not Presumed. — Obvious-
ly the character of a defendant is a matter of fact, which,
if investigated, might turn out either way. It is not es-

General Provisions Applicable to the Practice. 89

tablished, as a matter of law, that all persons indicted
are men of good character. Green vs. U. S., 245 U. S.,
559; De Moss vs. U. S., 250 Fed. 87; Kirchner vs. U. S.,
255 Fed. 301; Sylvia vs. U. S., 264 Fed. 593.

The law, however, does not minimize the effect of good
character when proven. It is very highly regarded. U.
S. vs. Freedman, 268 Fed. 655.

Evidence of, to be considered in connection with all
other evidence. Rosen v. U. S., 271 F. 651.

§ 27. Instructions of the Court. — Section 722 of the
Revised Statutes of the United States do not in any
measure bind the Federal Judge in the method or form
of the instructions he delivers to the jury. The statutes
and decisions of the state within which he holds his Court
are not binding upon him in the matter of procedure in
criminal cases, and he may deliver a written or an oral
charge as he sees fit. In re Strupp, 12 Blatchf., 509; U.
S. vs. Egan, 30 Federal, 608. The personal conduct and
administration of the judge in the discharge of his sep-
' irate functions is neither practice, pleading, nor a form
nor mode of procedure within the meaning of the stat-
ute, and a state statute regulating the manner in which
the Court shall charge the jury is not within this statute.
4 Federal Statute, 567; Mudd vs. Burrows, 91 U. S., 441;
Indianapolis, etc., vs. Horst, 93 U. S., 300; Grimes Dry
Goods Co., vs. Malcolm, 164 U. S., 490; Lincoln vs. Power,
151 U. S., 442; U. S. Mutual Association vs. Barry, 131
U. S.

In Tennessee vs. Davis, 100 U. S., 257, the Court held
with reference to Section 722, that, "examined in the
most favorable light, the provision is a mere jumble of
Federal Law, Common Law, and State Law, consisting
of incongruous and irreconcilable regulations, which, in
legal effect, amount to no more than a direction to a
judge sitting in such a criminal trial to conduct the same
as well as he can, in view of the three systems of crimi-
nal jurisprudence, without any suggestion whatever as
to what he shall do in such an extraordinary emergency,
should he meet a question not regulated by any one of
the three systems." At Common Law, it is entirely

90 Federal Criminal, Law Procedure.

within the discretion of the trial judge whether instruc-
tions to the jury shall be in writing; and in the absence
of statutes providing otherwise, the whole charge may
be delivered orally, and the action of the trial judge in
so doing will not be reviewable on appeal or error. Smith
vs. Crichton, 33 Maryland, 103; Baer vs. Books, 50 Fed-
eral, 898; Gulf Ey. Co. vs. Campbell, 49 Federal, 354.

The most careful way, however, is in writing, and there
is little doubt that any judge, upon proper request, would
gladly charge the jury in writing. If special instruc-
tions be desired, they must be requested in writing be-
fore the retirement of the jury, and the best practice is
to give them to the judge before he delivers his charge.
All exceptions to the Court's charge must be in open
Court, and before the jury retires, and no bill will be
granted, unless such action is taken.

§ 27 a. Instructions of the Court Continued.

The judge should not answer any question or communi-
cate with a jury, after it has been charged, in the absence
of the parties and their attorneys, if practicable, in a
criminal case, though under certain conditions he might
answer a question propounded by a jury in a civil case,
Fillipon vs. Albion, 242 Fed. 258. In this case the Court
of Appeals concluded that the answer of a trial judge to
a question propounded by the jury after the judge had
retired to his chamber, and not in open court, or in the
presence of the parties or their counsel, was not ground
for reversal, where no harm had resulted, and the ques-
tion and answer being preserved of record and counsel
being promptly informed of what had taken place and
given an opportunity to except to the substance of the
instruction and the manner of giving it.

When this case reached the Supreme Court, 250 U. S.
76; 39 Sup. Ct. Rep. 435, the affirmance by the Court of
Appeals was set aside and it was definitely held that the
giving of supplementary instructions to the jury, after
retirement, in the absence of the parties and without af-
fording them opportunity to be present or to make time-
ly objection to the instruction, is error, not withstanding

General Provisions Applicable to the Practice. 91

opportunity afterward was given to except; and that may
now be accepted as the real rule.

See also Dodge vs. U. S. 258 Fed. 300, holding that any
communication from the court to the jury not made in
open court is improper.

The court has ample right to give additional instruc-
tions, U. S. vs. Oppenheim, 228 Fed. 220, but must do so
in the manner above suggested.

In the matter of instructions Federal Courts in criminal
matters are not controlled by state statute, Bryant vs. U.
S., 257 Fed. 380, nor by rules of procedure, U. S., vs. Op-
penheim, 228 Fed. 220.

The judge of the court should reflect the real issue, U.
S. vs. Stilson, 254 Fed. 120, and must not assume the de-
fendant's guilt, Erhardt vs. U. S., 268 Fed. 326.

§ 27b. Exception to Charge After Jury Retired. — In
Coffin vs. U. S., 156; U. S., 445, Supreme Court reversed
upon exception to charge reserved after the jury had re-
tired. Such procedure having been by permission of the
Court and prosecuting officer that defendant's counsel
might have time to examine the charge and make his ob-
jections afterward.

§ 27 c. Exceptions to Charge.

General exceptions to a charge are not allowable but
must be specific and point out the errors complained of so
that the court may have an opportunity to correct if he
has made error, in his judgment, and so there may be no
misunderstanding. Letterman vs. U. S., 246 Fed. 940.

Stipulated matters are not necessarily thereby made a
part of the record. Ulmer vs. U. S., 266 Fed. 176.

After a case is in the appellate court orders respecting
the same may not be entered in the trial court. Ulmer vs.
U. S., 266 Fed. 176.

§ 28. Opinion of Court. — A long line of decisions sup-
ports beyond contradiction the right and, under some cir-
cumstances, even the duty of the judge to express his
opinion upon the testimony, which expression, in most
state jurisdictions would be a charge upon the weight of
the evidence, and, therefore, reversible error; but it is
well settled that the Federal judge has this right. In

92 Federal Criminal Law Procedure.

Simmons vs. United States, 142 U. S., 148, the Court said:
''It is so well settled by a long series of decisions of tins
Court that the judge presiding at a trial, civil or crimi-
nal, in any Court of the United States, is authorized,
whenever he thinks it will assist the jury in arriving at
a just conclusion, to express to them his opinion upon
the questions of fact, which he submits to their determi-
nation, that it is only necessary to refer to a few cases
namely, Vicksburg, etc., vs. Putnam, 118 U. S., 545
United States vs. Philadelphia Company, 123 U. S., 113
Lovejoy vs. United States, 228 U. S., 171." These de-
cisions have been followed repeatedly. Sebeck vs. Plat-
tseutsche, 124 Federal 18; Ching vs. United States. 118
Federal, 543. In the Ching case, the Court held that it
was not error for the trial judge to express an opinion
as to what the verdict should be, if afterward he quali-
fied his statements, and in Breese vs. United States, 106
Federal, 686, it was held that an expression of the judge
that the defendant is guilty was not error, he having
cautioned the jury that they were the sole judges, and
that his opinion should not govern. See also Doyle vs.
Union Pacific E. E. Co., 147 U. S., 430; Allis vs. United
States, 155 U. S., 123; Wiborg vs. United States, 163 U.
S., 556; Woodruff vs. U. S., 58 Federal, 767; Spur vs. U.
S., 87 Federal, 708; Hart vs. U. S., 84 F., 799; Smith vs.
U. S., 157 F., 722.

§ 28 a. Opinion of Court Continued.

The court may express his opinion if he ultimately and
clearly leaves the question to the jury. Griggs vs. Na-
deau, 250 Fed. 783; the court must not argue one side
of a case, Oppenheim vs. U. S., 241 Fed. 625.

The court may say he thinks the defendant is guilty
but he must also say that the jury will determine that
and he cannot prevent the defendant's attorney from
discussing such expressed opinion. Morse vs. U. S., 255
Fed. 681. The appellate court will reverse a conviction
if the trial court's remarks are improper. Shea vs. U.
S., 236 Fed. 97; and the court must not argue the case
against the defendant, Johnson vs. U. S., 270 Fed. 168.
He should be very careful in his expressions. Perkins
vs. U. S., 228 Fed* 410.

General Provisions Applicable to the Practice. 93

§ 28b. The Court is Not a Mere Presiding Officer.—
His function is to ascertain truth and express his views
and insure an orderly progress of the trial. Littenbach
vs. U. S., 202, Federal 379, but he must be careful in the
expression of an opinion, Foster vs. U. S. 188, Federal
305, though he have the power to express an opinion,
Young vs. Corrigan, 208 Federal 431. See also Sections
24 and 24a.

§ 29. Court Cannot Comment on Lack of Evidence.
— One well marked limitation is that pointed out in Mul-
len vs. United States, 106 Federal, 892, in a decision by
the Circuit Court of Appeals for the Sixth Circuit, which
holds in substance that where no testimony has been
offered as to the previous good character of the accused,
the presumption of such good character exists in favor
of the accused, of which, upon a request to that effect,
a jury should be instructed, and the Supreme Court, in
Coffin against United States, 156 U. S., 432, having said
that the presumption of innocence stands as evidence in
favor of the accused, as does also the presumption of
good character stand as evidence. Such presumptions
existing it is the duty of the Court to let the jury know
of such presumptions, and it was, therefore, error for
the trial judge to tell the jury that the defendants,
whether of good character or bad character, were pre-
sumed good character.

§ 30. Further Limitations. — In Hickory vs. United
States, 160 U. S., 408, and in Starr vs. United States, 153
U. S., 616, the Supreme Court said in substance that
where there is sufficient evidence upon a given point to
permit the point to go to the jury, it is the duty of the
judge to submit it calmly and impartially, and if the ex-
pression of an opinion upon such evidence becomes a
matter of duty, under the circumstances of the particu-
lar case, great care should be exercised that such ex-
pression should be so given as not to mislead, and es-
pecially that it should not be one-sided, and all deduc-
tions and theories not warranted by the evidence should
be studiously avoided. See also Hicks vs. United States,
150 U. S., 442.

94 Federal Criminal Law Procedure.

Were there testimony, therefore in the record, touch-
ing the question of character, it would not be error for
the judge to assist the jury by such views as he enter-
tained respecting character, its formation and effect,
provided he then leave the jury free to decide the dis-
puted matter of fact for themselves. See also McKnight
vs. United States, 97 Federal, 210.

§ 31. Verdict. — A verdict in a criminal case which
finds the defendant guilty upon certain counts of the in-
dictments on which the trial was had, not guilty upon
others, and which reports a disagreement as to the re-
maining counts, is entirely proper, and it is not error to
receive such verdict and to enter judgment thereon as
to the counts which were finally disposed of. Dolan vs.
IT. S., 133 F., 440.

§ 31 a. Eeturn of Verdict.

A verdict may be returned to the clerk, by agreement,
in the absence of the court, and out of the session there-
of. U. S. vs. Bachman, 246 Fed. 1009; a verdict on
"both" counts might mean, under certain circumstances,
' ' all ' ' counts. U. S. vs. Bachman, 246 Fed. 1009.

§ 32. Sentence and the Correction Thereof. — Certain
sections of Chapter IX. of the 1878 statutes, relate to the
place and term of sentence. Each Federal district is not
provided with a Federal prison, but the statutes of all of
the states of the Union provide for the reception of Fed-
eral prisoners upon the payment terms therein pre-
scribed. Section 5541 permits the Court to sentence the
prisoner, if the term be longer than a year, to either a
jail or a penitentiary. In this connection, it must be
understood that a sentence must be longer than one year
before the Court can direct that it shall be served in the
penitentiary. Haynes vs. United States, 101 Federal,
817; in re Bonner, 151 U. S., 252. 5542 leaves it optional
with the Court in imposing sentence to hard labor, as to
whether it shall be jail or penitentiary.

There is no direct Federal statute exacting when con-
victed prisoners shall be sentenced. The authority for
the sentence of a convict, therefore, under the Federal
system, must be found in the general proposition that

General Provisions Applicable to the Practice. 95

the Federal Courts are authorized to pronounce all de-
crees and judgments necessary. Specific penal statutes,
with fixed terms of punishment, demand, therefore, sen-
tence by the Court upon the convicted person.

§ 32. a. Sentence-Correction-Practice.

A sentence to the county jail without mentioning the
county is valid since the Attorney General could change
the place of imprisonment anyhow. Ozello vs. U. S.,
268 Fed. 242.

A court cannot double sentence. Blackman vs. U. S.,
250 Fed. 449.

It is necessary that the defendant be present, other-
wise, the sentence is not valid. Price vs. Zerbert, 268
Fed. 72.

One may be sentenced after the term at which he was
convicted. Miner vs. U. S., 244 Fed. 422.

The time of one's sentence begins to run from the date
he is received by the warden of the penitentiary, or from
the time he is sentenced as shown by the date of such
judgment. Ex parte Lyman 247 Fed. 611.

But the time when a sentence of imprisonment is com-
menced is properly no part of the sentence and may be
changed by the court at a subsequent term, if for any
reason execution of the sentence has been delayed. Bern-
stein vs. IT. S., 254 Fed. 967.

The lower court has large discretion in the matter of
sentence so far as the magnitude of the punishment is con-
cerned. Peterson vs. U. S., 246 Fed. 118.

The appellate court may not change the sentence.

The power of correction rests exclusive and alone with
the trial court. Voege vs. U. S., 270 Fed. 219; Hickson vs.
U. S., 258 Fed. 867;'Rogers vs. Desporte, 268 Fed. 308.

"Hard labor" is not a requisite of a sentence to the
United States penitentiary at Atlanta. Rogers vs. Des-
porte, 268 Fed. 83.

A sentence which showed in it's wording to have been
on all of the counts in the indictment when the defendant
had been acquitted on some of the counts is not invalid if
the sentence could have been given on one of the counts.
Roberts vs. U. S., 248 Fed. 873.

96 Pedeeal Criminal Law Procedure.

The Court of Appeals may reverse and order the lower
court to correct a sentence. Farley vs. U. S., 269 Fed. 721.

§ 32b. Single Sentence — What Is. — District Judge
Van Fleet in U. S. vs. Thompson, 202, Federal, 346, pro-
nounced a judgment in a criminal case which designated
different and consecutive periods of imprisonment of a
defendant on different counts in the same indictment, a
single sentence for the aggregate period and cited au-
thorities to support his position, distinguishing the doc-
trine laid down in re Mills, 135 U. S., 263. See Section
34.

§ 33. No Authority to Suspend Sentence. — For years,
and perhaps now in some of the Districts, judges have
suspended sentence, when in their opinion such action
was called for by the facts of the particular case. Such
practice is, beyond question it seems, the exercise of
pardoning power, and the usurpation by the judiciary
of a power especially inhibited to them, and belonging
to an entirely different branch of the Government. The
Judge, in administering the law, is as surely bounden
to society that all of its mandates shall be correctly ob-
served, as he is not to lay the weight of his finger un-
justly upon the defendant. In United States vs. "Wilson,
46 Federal, 748, Judge Beatty denounced the practice,
and observed, in substance, that while there was no
question of the power and authority of a Court to tem-
porarily suspend its judgment for the purpose of hear-
ing and determining motions and other proceedings
which may occur after verdict, and which may be properly
considered before judgment, or for any other good rea-
son, yet the suspension of a judgment upon the good be-
havior of the prisoner, or for any ofher reason that is
not concerned with the case, is an exercise of arbitrary
and unlawful power. He says:

"It operates as a condonation of the offense, and an exercise of a
pardoning power, which was never conferred upon the Court."

§ 33a. No Authority to Suspend Sentence, Continued.

The practice of suspending sentences by trial judges

became so prevalent that the government filed an origi-

General Provisions Applicable to the Practice. 97

nal proceeding in the United States Supreme Court to
mandamus a district judge who was engaging in such a
practice and the Supreme Court's decree in that pro-
ceeding ended for all time the practice. Exparte U. S.,
242 U. S., 27; it is thought that the execution of a sen-
tence may be temporarily delayed for a pardon or simi-
lar proceeding. U. S., vs. Lynch, 259 Fed. 982.

Even when a sentence had been suspended, illegally,
the court may thereafter issue a mittimus for it's en-
forcement, after the term has expired at which it was
imposed. Morgan vs. Adams, 226 Fed. 719.

§ 34. Correction of Sentence. — Under Section 5546
and its Amendment, as shown at page 111, First Vol-
ume Supplement, the Attorney General of the United
States designates the particular Federal penitentiary to
which prisoners from a given district shall be sentenced.
Theae designations because of various reasons, must,
from time to time, be changed. Most of the Federal
Statutes fix the maximum of the punishment, and leave
it discretionary with the Court to come within such limits.
Some of the statutes carry hard labor, and some do not.
Because of all these and perhaps other reasons, mistakes
are sometimes made by the Court, and sentences that
are void or invalid are imposed. There seems to be no
question under the authorities, that the Court which
has rendered a judgment or sentence may, during the
term of its rendition, and before any part of it has been
executed or suffered, revise and vacate it, or change,
correct, or amend it in form or substance, or may modi-
fy, diminish, or increase it within the limits allowed by
law, and in fact may render a new judgment, in accord-
ance with its authority, duty, and discretion. United
States vs. Harmison, 3 Saw., 556; ex parte Caset, 18 Fed.,
86; Bassett vs. United States, 9 Wallace, 38; ex parte
Lange, 18 Wallace, 163; Eeynolds vs. United States, 98
U. S., 145; in re Bonner, 151 U. S., 242; Williams vs.
U. S., 168 IT. S., 382; ex parte Waterman, 33 Federal 29;
U. S. vs. Harmon, 68 Federal, 472; in re Groves, 117 Fed-
eral, 798.

98 Federal Criminal Law Procedure.

The authorities also seem to be a unit upon the proposi-
tion that after the term has passed, the Court has no
further control over a valid judgment or sentence which
it has rendered, and cannot vacate, reform, or change
it, or pronounce a new sentence. Ex parte Friday, 43
Federal, 916; U. S. vs. Malone, 9 Federal, 897; U. S. vs.
Pile, 130 U. S., 280; U. S. vs. Patterson, 29 Federal, 775.
Independently of some statutory provision, it is thor-
oughly settled that the practice of the Federal Courts
with reference to granting new trials in criminal cases
follows the Common Law, so that the Court has no juris-
diction over such motion after the term expires at which
the sentence was pronounced. Chitty's Criminal Law,
651; Indianapolis E. R. Co. vs. Horst, 93 U. S., 291; New-
comb vs. Wood, 97 U. S., 581; Belknap vs. U. S., 150 U.
S., 588; King-man vs. Western Mfg. Co., 170 IT. S., 675;
Capital Traction Co. vs. Hof, 174 U. S., 1. Where, how-
ever, there is a local statute of the state, by which a mo-
tion for a new trial in a criminal case is justified, even
though the term be ended at which the sentence and judg-
ment was passed, it seems to be an open question as to
just what course the Federal Courts would follow. In
Trafton vs. IT. S., 147 Federal, 513, the Circuit Court of
Appeals for the First Circuit declined to pass upon this
question, referring it back to the District Court for first
investigation, without themselves indicating either for
or against such practice.

So, also, the respectable weight of authority seems to
indicate that a sentence which is null and void may be
corrected at the same term in which it was entered, even
though the prisoner has been in prison thereunder. Peo-
ple vs. Dane, 81 Mich., 36; ex parte Gilmore, 71 Cali-
fornia, 624; in re Bonner, 151 IT. S., 242; in re Christian,
82 Federal, 885.

While for some time it may have been considered
doubtful as to whether the sentencing Court, after the
term, could recall before it the prisoner, and re-sentence,
for the purpose of correcting a null and void judgment,
it seems now to be determined upon the weight of au-
thority and sound public policy, that such action may be

General Provisions Applicable to the Practice. 99

taken. At Common Law, it could be done on a writ of
error coram vobis. In recent times, it has often been
done by motion. Bank of United States vs. Moss, 6 How-
ard, 38; Bronson vs. Schulter, 104 U. S., 410; Phillips vs.
Negley, 117 U. S., 665; in re Wright, 134 U. S., 136; in re
Welty, 123 Federal, 126; ex parte Peeke, 144 Federal,
1020; U. S. vs. Carpenter, 151 Federal, 216; Francis vs.
U. S., 152 Federal, 157. In addition to these authorities
is the ranking authority of the Supreme Court of the
United States, in in re Bonner, 152 Federal, 252 wherein
the Court says:

"But in a vast majority of cases, the extent and mode and place of
punishment may be corrected by the original court without a new
trial, and the party punished as he should be, whilst relieved from any
excess committed by the Court of which he complains. In such case,
the original Court would only set aside what it had no authority to
do, and substitute directions required by the law to be taken upon the
conviction of the offender."

The above expression was written in a case where many
terms had elapsed; but the Supreme Court directed that
the prisoner, who, upon his application for an habeas cor-
pus, had been released from the penitentiary custody,
should be transmitted to the original Court for the steps
to be taken in accordance with the excerpt above. Bal-
lew vs. U. S. 160, U. S. 195, affirms the Bonner case and
takes action in harmony therewith.

§ 34a. Sentence not Absolutely Void; Resentencing.
— In Howard vs. Moyer, 206, Federal, 555, it was held
that one would not be released on writ of habeas corpus
merely because the sentence was erroneous. In order
to secure such relief, the sentence must in fact be a nul-
lity. See also Balke vs. Moyer, 206, Federal, 559.

In Stevens vs. McClaughry, 207 Federal, 18, Circuit
Judge Sanborn for the Court of Appeals for the Eighth
Circuit, held that one who is being restrained of his lib-
erty for many years by virtue of the judgment of a Fed-
eral Court which is beyond its jurisdiction and void, is
not barred from a release therefrom by writ of habeas
corpus by the fact that he might have secured such re-
lief by a writ of error but failed to apply for it until it

100 Federal Criminal Law Procedure.

was too late. An habeas corpus may be used to liberate
one who is being restrained of his liberty by virtue of
the judgment of the Federal Court beyond its jurisdic-
tion and therefore void. Stevens vs. McClaughry, 207.
Federal, 18.

Section 761 of the Revised States requires a Federal
Court in an habeas corpus proceeding to dispose of the
party as law and justice require, and where one seeks
this relief on the ground that his sentence was illegal,
it is proper for the Court on so finding to direct his re-
turn to the Court by which he was tried for a correction
of the sentence, and this may be done though the term
at which he was convicted has passed. Bryant vs. U. S.
214, Federal, 51.

It is not double jeopardy to re-sentence a prisoner
who had his first sentence vacated by writ of error,
Murphy vs. Massachusetts, 177 U. S., 155, nor to re-try
him on a new indictment after a prior indictment, con-
viction and sentence have been set aside in a proceed-
ing in error. Ball vs. U. S. 163, U. S. 662.

The Government is not authorized to move for a modi-
fication of judgment and sentence with respect to place
of imprisonment in the absence of any of the contin-
gencies covered by Section 5546, which provides that all
persons convicted where there may not be a penitentiary
or suitable jail, shall be confined in some suitable jail
or penitentiary in a convenient state or territory, to be
designated by the Attorney General, and that place of
imprisonment may be changed when to the Attorney
General it appears necessary. U. S. vs. Cane, 221, Fed-
eral, 299.

§ 35. Remission of Penalty on Forfeited Recogni-
zance.— An application to a Federal Court which has en-
tered judgment on a forfeited recognizance in favor of
the United States, for a remission of the penalty for
which such judgment was rendered under Rev. Stat.
1020, which gives the Court power to remit the whole
or any part of such penalty, "when it appears to the
Court that there was no willful default of the party,"
is not a motion to vacate the judgment, and may be en-

General Provisions Applicable to the Practice. 101

tertained after the term at which the judgment was en-
tered. U. S. vs. Jenkins, et al, 176 F., 672.

§ 35a. Fine. — The imposition of a fine or penalty is
abated by the death of the party against whom the same
is imposed. Dyar vs. TJ. S. 106, Federal, 623.

§ 35. b. Fine-Reeovery-etc,

The imposition of a fine on a void indictment may be
recovered even though, it was imposed on a plea of
guilty, was held in Mossem vs. U. S., 266 Fed. 18, but the
defendant must pursue his statutory remedies by suing in
the court of claims. The imposing court has no right to
order the repayment of such a fine upon a petition ask-
ing the court to act summarily, U. S., vs. Mossew, 268
Fed. 383.

A creditor's bill may be filed to collect a fine. Pierce
vs. U. S., 257 Fed. 514.

§ 36. Bail After Affirmance. — The affirmance by the
Circuit Court of Appeals of a judgment of conviction in
a criminal case is the end of the proceedings in error,
and that court has no power to continue defendant's
bail, nor to admit him to new bail pending his applica-
tion to the Supreme Court for a writ of certiorari, but
the Court may, for good cause shown, defer the begin-
ning of his sentence for a reasonable time. Walsh vs.
U. S., 177 F., 208.

§ 36a. Bail Matter of Discretion and Matter of Right
— When. — A person charged with a misdemeanor only, in
extradition proceedings, is entitled to bail as a matter
of absolute right, both under the state and federal laws,
unless his enlargement on bail would be a menace to a
community. Ex parte Thaw, 209, Federal, 954.

A Chinese person against whom an order of deporta-
tion has been entered, is not entitled to be admitted to
bail pending an appeal, as a matter of right, but admis-
sion to bail rests in the discretion of the Court. U. S. vs.
Fah Chung, 132, Federal, 109. The opinion of Judge
Dodge in re Jem Yuen, 188, Federal, 350, is in direct con-
flict with the case above cited in 132nd Federal, for Judge
Dodge holds that the words of the Act requiring depor

102 Federal Criminal Law Procedure.

tation of Chinese persons under certain conditions deny
the alien bail pending appeal.

A supersedeas is not a matter of right when appeal is
taken in a criminal case. U. S. vs. Gibson, 188, Federal,
397.

§ 36b. Bail-Amount-Manner-Trial When Under.

A federal court has jurisdiction to try one who has
been convicted in a state court and is then on bail. Vane
vs. IT. S., 254 Fed. 28.

A court cannot refuse cash bail, nor, can bail be denied
because the defendant has once absconded. Rowan vs.
Randolph, 268 Fed. 529.

Pending a writ of error proceedings the granting of
bail is discretionary, with the court. U. S., vs. St. John,
254 Fed. 794.

The opinion of the attorney for the defendant that the
defendant need not attend court is not an excuse such
as would set aside a forfeiture, nor, will it make opera-
tive Sec. 1020, which authorizes the court to remit the
whole or part of the bond. U. S., vs. Fabata, 253 Fed.
586. See also U. S. vs. Jacobson, 257 Fed. 760.

§ 36c. Voluntary Giving of Bond no Defense to Sure-
ties' Liability. — In the case of U. S. vs. Lamar, 210, Fed-
eral, 685, it was determined that even though the accused
voluntarily gave bond for his appearance, such contract
was binding and he, not having appeared a preliminary
surrender and a subsequent habeas corpus, were no de-
fense to the forfeiture of his bond. It may be observed
here that the government in most instances proceeds
against the principal and his sureties by an action at
law, after forfeiture, rather than by the old methods of
scire facias and statutory proceedings. In other words
it is a mere action for debt.

§ 37. Severance. — Severance and separate trials were
not a Common Law right, but were permitted at the dis-
cretion of the Court, in all grades of offenses, including
misdemeanor and felony. It is generally presumed that
persons jointly indicted are to be tried jointly, but when,
in a particular instance, this would work injustice to a
party, the Court, under the Common Law, will permit a

General, Provisions Applicable to the Practice. 103

servance and separate trials. Some of the States, by stat-
ute, authorize and guarantee this as a right. In the
Federal Courts, however, • the rule is the Common Law
rule stated above. The application for severance may
come from either the defendant or the prosecution, and
there are authorities which hold that a request by the
prosecuting officer for a severance will be granted as a
matter of right, 1 Bishop Crim. Procedure, page 649.

Re-stating the Common Law rule, it is, that the try-
ing together of joint defendants promotes convenience
and justice; and unless the contrary appears, the trial
will be joint. If, however, there be antagonistic de-
fenses, or important evidence not adducible upon joint
trial; or where the husband and wife are jointly indicted,
and the testimony of the wife would not be admissible
against the husband; or if the testimony would be prej-
udicial against one and incompetent against another;
or where there be a contention of one which is not ad-
missible against another — the Court may, in his discre-
tion, grant separate trials. See also Lee Dock vs. U. S.
224 Fed., 431.

In United States vs. Marchant and Colson, 25 U. S.,
page 479; 6 Law Ed., 700, the Supreme Court of the Unit-
ed States held, speaking through Justice Story, that,

"Where two or more persons are jointly charged in the same indict-
ment with a capital offense, they have not a right by law to be tried
separately, without the consent of the prosecutor; but such separate
trial is a matter to be allowed in the discretion of the Court."

See also 19 Vol. Enc. of Pleading and Practice, page
521.

In Ball vs. United States, 163 U. S., 663, 41 Law Rd.,
300, the Supreme Court held, in a case where two de-
fendants moved that they be tried separately from Ball,
a co-defendant, alleging as a cause for such motion that
the Government relied on his acts and declarations made
after the killing, and not in their presence or hearing,
and because he was a material witness in their behalf,
that the question whether defendants jointly indicted
should be tried together or separately, was a question

3 04 Federal Criminal Law Procedure.

resting in the sound discretion of the Court below; and
it not appearing that there was any abuse of that dis-
cretion in ordering the three defendants tried together,
or that the Court did not duly limit the effect of any evi-
dence introduced which was competent against one de-
fendant and incompetent against others, Sparf vs. U. S.,
156 U. S., 51; 39 Law Ed., 343, such discretion would
not be reviewed on writ of error.

In Cochran against the United States, 147 Federal,
206, the Circuit Court of Appeals for the Eighth Circuit
affirms this position, but holds that United States Courts
held in territories which are governed by local statutes
which give a right of severance, that the United States
Courts, will, in such jurisdictions, grant the local right.

In Richards against the United States, 175 Federal,
page 911, the Circuit Court of Appeals for the Eighth
Circuit held that the request of defendants charged in
the same indictment, for separate trials is addressed to
the discretion of the Court, and its action in refusing
the same will not be reviewed in the absence of clear in-
dications that serious prejudice resulted therefrom to
one or more of the defendants.

The granting of a separate trial to numerous defend-
ants who are indicted in the same bill is a matter of dis-
cretion and such discretion can be reviewed only when
abused. Schwartzberg vs. U. S., 241 Fed. 348; Oppen-
heim vs. U. S., 241 Fed. 625.

§ 38. Habeas Corpus. — Under the Federal practice,
the return to a writ of habeas corpus must recite facts;
and when it recites facts, verity will be imported there-
to until impeached. Petitions that merely allege con-
clusions of law, such as that the respondent had a right
to detain the petitioners, are held to be insufficient, and
do not controvert the allegations of illegal detention al-
leged by the petitioner. In Stretton vs. Shaheen, 176
Federal, 735, the Circuit Court of Appeals for the Fifth
Circuit held that a return to a writ of habeas corpus ob-
tained on behalf of immigrants upon petitions alleging
their illegal detention by an Inspector, which alleged no
facts, but merely as a conclusion of law that the re-

General Provisions Applicable to the Practice. 105

spondent had the right to detain the petitioners, were
insufficient. In Streton vs. Rudy, 176 Federal, 727, the
same Court held that where a return shows a state of
facts under which the petitioner is lawfully held, that
if there be no evidence controverting such facts, the pe-
titioner will be remanded to the custody of the officer,
and it is error to release the petitioner under such a state
of facts, and cites Japanese Immigrant Case, 189 U. S.,
86, 47 Law Ed., 721, and Chin Yow vs. U. S., 208 U. S.,
8; 52 Law Ed., 369.

§ 38a. Habeas Corpus. A civil court will release a
prisoner from a court-martial if the court-martial real-
ly has no jurisdiction. U. S. vs. McDonald, 265 Fed. 754
and 695.

A writ will not run to a state court save and except
for a deprivation of "due process." Teregno vs. Shat-
tuck 265 Fed. 797.

When an application alleges that the prisoner is being
held by a state court in violation of the constitution or
of a law or treaty of the United States, or for an act
done or omitted pursuant to a law of the United States,
the federal courts, under Sec. 751-753 R. S. U. S., have
plenary jurisdiction to inquire into the cause of such
confinement by means of habeas corpus and to discharge
the petitioner. Castle vs. Lewis, 254 Fed. 917, and there
is the presumption of law that the finding of the trial
court in habeas corpus proceedings, who hears and sees
the witnesses, is correct. Castle vs. Lewis 254 Fed. 918.

When one is held under a warrant for extradition to
another state, and institutes habeas corpus proceedings
in a state court in which he raises, or could have raised
questions involving his rights under United States laws
and constitution, he should prosecute a writ of error
to review the decision of the highest court in the state,
remanding him to custody, before invoking the jurisdic-
tion of the federal courts on new proceedings for habeas
corpus. Ex parte Graves, 269 Fed. 461.

One who has been convicted in a state court which
had jurisdiction over the offense, the place where it was
committed and the prisoner cannot have relief on habeas

106 Federal Criminal Law Procedure.

corpus from a federal court and such proceedings can-
not be employed as a substitute for a writ of error. A
criminal prosecution in a state court, based on a law
not repugnant to the federal constitution and conducted
according to the settled course of proceedings under the
law of the state, constitutes "due process of law" in
the constitutional sense, so long as it includes notice and
a hearing and an opportunity to be heard before a court
of competent jurisdiction according to established modes
of procedure. Filer vs. Steele, 228 Fed. 242.

It is manifestly difficult, and almost impossible, to
claim that a prisoner has been deprived of due process
of law, until the conclusion of the course of justice in
the state courts, as the prohibition of the Fourteenth
Amendment is addressed to the state itself, and if a vio-
lation be threatened by one agency of the state, but pre-
vented by another agency of higher authority, there is
no violation by the state. Filer vs. Stelle, 228 Fed. 242.

So also the action of immigration officials, in ordering
the deportation of aliens is reviewable by the courts only
so far as to determine whether they acted under the
scope of their authority and the fairness of their pro-
ceedings and a habeas corpus proceedings cannot be
made to perform the function of a writ of error. Sibray
vs. U. S. 227 Fed. 1.

§ 38b. Habeas Corpus not to be Used on Writ of Er-
ror.— Federal Courts will not inquire into the validity of
an indictment on removal by the habeas corpus route.
Henry vs. Henkel, IT. S. Sup. Ct., Oct. Term, 1914. Glas-
gow vs. Moyer, 225 U. S., 420. In re Gregory, 219 U. S.,
210. Nor can the writ be made to perform the office of
a writ of error. Harlan vs. McGouer, 218 U. S., 44.
Frank vs. Mangum, U. S. Sup. Ct., Oct. Term, 1914. The
office of the writ of habeas corpus is confined to inquiry
as to the cause of confinement, ex parte Jim Hong, 211
Federal, 73. It is a settled rule of the Federal Supreme
Court that a writ of habeas corpus will not ordinarily be
issued to review the decisions of courts of competent ju-
risdiction made within the limits of their jurisdiction,
oven though such decisions may be erroneous, and a de-

Genebal Peovisions Applicable to the Peactice. 107

f endant convicted of a crime by a state court of competent
jurisdiction, which conviction has been affirmed by the Su-
preme Court of the State, will not be released from im-
prisonment thereunder by a Federal Court on a writ of
habeas corpus, on the ground that he is deprived of his
liberty without due process of law, because of the over-
ruling of a plea of former acquittal; his remedy being
by a writ of error from the Supreme Court * of the
United States, if he claimed the right under the Con-
stitution in the State Courts. Ex parte Blodgett, 192,
Federal 707. Frank vs. Mangum, U. S. Sup. Ct., Oct.
Term, 1915. Nor will extradition on valid indictment
be defeated by. Drew vs. Thaw, U. S. Sup. Ct., Oct.
Term, 1914.

§ 39. Immunity. — Since the passage of the Federal
Sherman Anti-Trust and Interstate Commerce Act, so-
called, the question has arisen whether the immunity
from prosecution therein guaranteed means a shield from
any prosecution, or a protection against successful prose-
cution. In the case of Heike vs. United States, decided
May 2, 1910, the Court passed upon this question, and
approved Brown vs. Walker, in 161 U. S., 591, in which
the Constitutionality of the Immunity Statute was sus-
tained, and said in substance that a shield against suc-
cessful prosecution, available to the accused as a defense,
and not immunity from the prosecution itself, is what was
secured by the Act of February 25, 1903, as amended by
the Act of June 30, 1906, providing that no person shall
be prosecuted or subjected to any penalty or forfeiture
for, or on account of, any prosecution, matter, or thing,
concerning which he may testify or produce evidence in
any proceedings, suit, or prosecution under the said Acts.

The facts of the Heike case were that Heike was in-
dicted with others for alleged violations of the Customs
laws of the United States, in connection with the fraudu-
lent importation of sugar, and also for conspiracy under
Section 5440 of the Revised Statutes of the United States,
to defraud the United States of its revenues. Heike ap-
peared and filed a special plea in bar, claiming immunity
from prosecution under the aforementioned Act. The

108 Federal Criminal, Law Procedure.

plea set up, in substance, that Heike had been called
upon to testify before the grand jury, in matters con-
cerning the prosecution against him, and had thereby be-
come immune from prosecution under the law. The Gov-
ernment filed a replication, and the issues thus raised
were brought to trial, the result of which was a verdict
for the Government upon the issue; and thereafter Heike
asked to be permitted to plead over, and he then plead
not guilty. The Court then held that the judgment on the
special plea was not a final judgment from which an ap-
peal could be had, and rendered a decision as above in-
dicated.

§ 39a. Immunity. — See Section 7a. Under the Fed-
eral anti-trust act making it an offense to restrain trade,
the Court, in U. S. vs. Swift, 186, Federal, 1002, held
that the immunity statute governing the giving of testi-
mony before the Commissioner of Corporation, Act of
February 11, 1893, 27 Stats. L. 443, is made expressly ap-
plicable by the Act of February 14, 1903, which created
the Department of Commerce and Labor. This immunity
act of February 11, 1893, was enacted to satisfy the de-
mand of the Fifth Constitutional Amendment and does
so by affording the witness absolute immunity from fu-
ture prosecution for any offense arising out of the trans-
actions to which his testimony relates and which might
be aided directly or indirectly thereby, so as to leave no
ground on which the Constitutional privilege may be in-
voked. Of course it does not act as a shield against
prosecution for offenses committed after the testimony
is given. U. S. vs. Swift, 186, Federal, 1003.

Revised Statutes 860, which provides that evidence
given in a judicial proceeding shall not be used against
the witness in any Federal Court, does not exempt him
from prosecution for perjury for giving such evidence
and does not prevent prosecution for perjury in a bank-
ruptcy proceeding, nor does it prevent introduction in
support of the charge, not only the false statements, but
such other parts of accused's testimony as is necessary
to make the charge intelligible. Cameron vs. U. S., 192,
Federal, 548.

General Peovisions Applicable to the Practice. 109

In 192 Federal, 83, Heike vs. U. S., the Circuit Court of
Appeals affirms the conviction of an officer of a corpora-
tion who claimed immunity because he had produced
before a grand jury in response to a subpoena duces
tecum, certain record evidence of that corporation, which
showed his guilt as an official of the corporation. Per-
sons making no objection to testifying cannot afterwards
complain, though called, said the Court in U. S. vs. Wet-
more, 218, Federal, 227, but see cases above.

§ 40. Improper Person in Grand-Jury Room.— An ex-
pert accountant who is not an attorney-at-law, appointed
by the Attorney General "a special assistant" to a United
States Attorney, to assist in the investigation and prose-
cution of a particular case is not an "officer of the De-
partment of Justice," within the meaning of Act June
30, 1906, C. 3935, 34 Stat. 816, and cannot be authorized
by the Attorney General to conduct or assist in the con-
ducting proceedings before the grand jury — and his pres-
ence in room which results in bill is ground for quashing
same. U. S. vs. Heinze, 177 F., 770. See also U. S. vs.
American Tobacco Co., 177 F., 774, as to this and suffi-
ciency of other abatement pleas and time for filing same.
Stenographer not allowed. Latham vs. U. S., 226 Fed.
p. 420.

§ 40a. Improper Person in Grand Jury Room Con-
tinued.— In Wilson vs. U. S., 229 Fed. 344, the court takes
an entirely different position to that supported by the
opinion in Latham vs. U. S., 226 Fed. 420, and cited in
Sec. 40. It is believed .that the Latham case will be fol-
lowed as the law. The reason for the secrecy of the grand
jury and the freedom of that body from the presence of
unauthorized persons who are not under an oath identical
with that taken by the members of the body, may not
only result in a breaking of the secrecy of the proceed-
ings but may likewise result in an outside pressure even
though the pressure is not susceptable of measurement.
If one stenographer be present then twenty five can be
present. Any number can be present. When the rule is
once broken it ceases to be a rule. Grand jurors who
begin their duties together by simultaneously uplifting

110 Federal Criminal Law Procedure.

their hands and taking the oath and who sit side by side
day after day and work in the fearlessness of secret ses-
sions, are disadvantaged by the presence of outsiders,
however meek or lowly or insubordinate such outsider
may be.

In May vs. U. S., 236 Fed., 495, it was held that an As-
sistant Attorney General, de facto, is not an "improper
person."

In U. S. vs. Phila. Railway Co., 221 Fed. 683, Judge
Thompson held that the Act of June 30, 1906, which pro-
vides that any attorney or counselor, specially appointed
by the Attorney General under the provisions of law,
when thereunto specially directed by the Attorney Gen-
eral, may conduct grand jury proceedings, does not au-
thorize the appointment of an attorney, who was not
intended to conduct the proceedings, but whose sole duty
was to report stenographically the testimony of witnesses
to be present in the grand jury room during the taking
of testimony and that if he were so present it would be
ground for quashing the indictment.

After an indictment has been found and the defendant
has been apprehended and has submitted to the jurisdic-
tion of the court and been released on bail, there is no im-
propriety in inquiring of the grand jurors, or in their
telling, what transpired before them in court, under the
proper direction of the Judge. U. S. vs. Perlman, 247
Fed. 158. In truth it would appear that it is the holding
of the authorities that such inquiry need not necessarily
be in court. After the presentment of the indictment and
after the grand jury has heard the testimony and after
the indictment has been made public and the accused has
been arrested and the grand jury has been discharged,
its members are at liberty to disclose if they see fit, the
proceedings that were had before them to proper in-
quirers who seek information with reference to a par-
ticular case. Atwell vs. U. S., 162 Fed. 97. In this case
an attempt was made to subject a grand juror to im-
prisonment for contempt for disclosing proceedings of
the grand jury room after the grand jury had been dis-

General Provisions Applicable to the Practice. Ill

charged and the Court of Appeals held that the grand
juror was not subject to punishment.

§ 40b. Hearsay Testimony Introduced Before Grand
Jury bound to quash the indictment, U. S. vs. Eubin et
al. 218, Federal, 245. The use by the United States Dis-
trict Attorney of his stenographer in the grand jury room
to take down the testimony of witnesses for the use of
the District Attorney afterward is grounds for quashing
the indictment. U. S. vs. Eubin et al., 218 Federal, 245.
Latham et al. vs. U. S., 226 F. p. 420; U. S. vs. Phila-
delphia Ry. Co., 221 F. 683.

§ 41. Private Prosecutors Unknown in Federal
Courts. — The Federal statutes provide for the appoint-
ment of District Attorneys and their assistants, for the
purpose of prosecuting offenses against the Federal laws.
Judge Hammond, in United States vs. Stone, 8 Federal,
232, held that private prosecutors are unknown to the
practice of the Federal Courts, the District Attorney be-
ing alone authorized to prosecute; and in speaking of
this matter, he said:

"Under our Federal practice, from the earliest times, and by force
of the statute, the District Attorney is the only prosecutor known to
our law; and as a matter of fact, in this Court at least, no private
prosecutor has ever been recognized. Act of 1879, Chapter XX., Section
35, [1 St., 92]; Revised Statutes, Sec. 771; U. S. vs. Mundel, 6 Coll..
245; U. S. vs. McAvoy, 6 Blatchf., 418; U. S. vs. Blaisdell, 3 Ben.,
132, where the Court refused to recognize an agreement of the Execu-
tive Department not to prosecute the offender, and said, that, 'when
there is no District Attorney in commission, the Government cannot
prosecute in this Court.' 1 Bishop Criminal Pr., Sec. 278. It is im-
possible, therefore, for anyone to occupy the place of a private pros-
ecutor in this Court."

§ 41a. Assistants to District Attorneys.— Sec. 363 of
the Revised Statutes of the United States gives the Attor-
ney General power to employ, in the name of the United
States, attorneys "to assist the district attorney.' : It
places no restriction upon the powers of the district at-
torney and they come within the general rule that an as-
sistant, duly appointed to prosecute, is clothed will all
the powers and privileges of the prosecuting attorney,
all acts done by him in that capacity must be regarded

112 Federal. Criminal Law Procedure.

as if done by the prosecuting attorney himself. Brown
vs. U. S., 257 Fed. 703, citing 32 Cyc. 724; Parish vs. U.
S., 100 U. S., 500; May vs. U. S., 236 Fed. 495.

§ 42. Proof of Witness' Former Conviction. — In the
absence of a Federal statute on the subject, the incom-
petency of a witness by reason of his prior conviction of
a felony, cannot be shown upon his examination, but only
by the production of the record, or an exemplified copy
of it. Rise vs. United States, 144 Federal, 374. If the
guilt of the party should be shown by oral evidence, and
even upon his own admission (though in neither of these
modes can it be proved, if the evidence be objected to),
or by his plea of guilty which has not been followed by a
judgment, the proof does not go to the competency of
the witness, however it may effect his credibility; and the
judgment itself, when offered against his admissibility,
can be proved only by the record, or in proper cases, by
an authenticated copy, which the objector must offer and
produce at the time when the witness is about to be
sworn, or at furthest, in the course of the trial. I Green-
leaf on Evidence, Fourteenth Edition, 375; 457. See also
Sections 26 and 26a.

Sec. 42x. Proof of Witness' Former Conviction. — A
conviction in a state court is no bar to the witness testify-
ing in the federal court. Brown vs. U. S., 233 Fed. 353;
Rosen vs. U. S., 237 Fed. 810; Pakas vs. U. S., 240 Fed.
350; Ammerman vs. U. S., 267 Fed. 136.

The competency of a witness in the federal court is
no longer determined by the common law. Rosen vs. U.
S., 245 U. S., 467.

For the rule of decision in the federal court see McCoy
vs. U. S., 247 Fed. 861 ; the judiciary act adopts the law
of the state which is in force at the time of the admission
of such state to the union and the federal courts were
created therein.

A witness who testifies renders admissible the record
of his former conviction. Williams vs. U. S., 254 Fed.
52; but the prosecution is bound by the answer of the
defendant as to a collateral crime and cannot impeach

General Provisions Applicable to the Practice. 113

the answer by introducing the judgment. Bullard vs. U.
S., 245 Fed. 837.

§ 42y. Evidence of Another Crime. — In a prosecution
for one crime evidence of an indictment for another crime
is not admissible. Coyne vs. U. S., 246 Fed. 120; Gordon
vs. U. S., 254 Fed. 53 see also brief in U. S. vs. Bryant and
U. S., vs. Hardy, 257 Fed. and 256 Fed.

CHAPTER III.

PRACTICE SUGGESTIONS.

§ 42a. Aliens. Deportation of and Decisions on Statutes.

42aa. Aliens Continued.

42b. Accomplice.

42bb. Accomplice Continued.

42c. Alaska — Territorial Courts.

42d. Assignment of Errors. Supersedas and Writ of Error.

42dd. Assignment of Errors Continued.

42e. Army and Navy; Court Martial, Need Control by Civil Courts.

42ee. Army and Navy Continued.

42f. Appeal and Writ of Error: Forma Pauperis.

42ff. Technical Errors.

42g. Bill of Particulars.

42gg. Bill of Particulars Continued.

42h. Corporations — Indictment of; Individual Aiding and Abetting
— Procedure.

42hh. Corporation — Indictments of Continued

42i. Error, Not Assigned, Not Ordinarily Noticed.

42ii. Bill of Exceptions and Error.

42j. Continuance — Granting is Matter of Discretion; Application
which shows Mental Weakness of Defendant Requires a Court
to Try That Issue First.

42jj. Continuance Continued.

42k. Extradition; Not Defeated by Habeas Corpus; Technicality of
Trial not Required; General Rules For; Certified Copy from
Secretary of State Sufficient.

42kk. Extradition Continued.

421. Judge — Disqualifications of — How to proceed: Does Not Apply
to Appellate Judges.

42m. Nolo Contendere — Practice Regulating; After Plea Accepted
Cannot be Withdrawn Except by Leave of Court.

42n. New Trial; Discretion of Court — Rulings on Not Assigned as
Error; If Court Refuses to Exercise Its Discretion Such
Failure is Error.

42nn. New Trial Continued.

42o. Limitations; Excepts Fugitives; Federal and not State Stat-
utes Regulate; Revenue Laws, Prosecution Under — Within
What Time; Filing of Affidavit Before Commissioner Will
not Stop Running of, nor does Nolle Prosse; May be Raised
by Demurrer.

42oo. Limitations Continued.

42p. Sherman Law— Trust Statute; Federal Trade Commission; Pur-
chase of Competing Plants; Must be Undue Restraint; Stand-
ard Oil Cases — Tobacco Cases.

(114)

Peacticb Suggestions. 115

42pp. Monopoly— Sherman Act— Clayton Act.

42q. Verdict, Motion to Direct, Waiver; Coercing of Verdict.

42qq. Verdict— Motion to Direct— Coercing Continued.

42r. Writ of Error— Superseadeas; Direct to Supreme Court, When;

Pauper has right to.
42rr. Writ of Error — Supersedeas — Pauper Continued.
42s. Hand Writing, Comparison Statute; Cannot be Introduced for

Mere Purpose of.

§ 42a. Aliens. — An alien acquitted by a jury may be
deported by the immigration authorities for the same of-
fense. Ex parte Young, 211 Federal, 371.

The contrary has been held in Chen Kee vs. U. S., 196,
Federal, 74. There is no provision in the law for the issu-
ance of a United States Commissioner's certificate and
therefore it is of no value to the holder. Lum Bing Wey
vs. U. S., 201, Federal, 379.

A Chinaman has a right to bond pending his first
hearing. Chin Yah vs. Caldwell, 187 Federal, 592; U. S.
vs. Yet Yee, 192, Federal, 577.

The burden is on the Chinaman to show that he is
native-born. Yee Ging vs. U. S. 190, Federal, 270: U. S.
vs. Ching Fong, 192, Federal, 485.

A Chinese merchant is not subject to deportation if his
interest is bona fide, however small, 210, Federal, 617.

A Chinaman who was a merchant when the registration
law required him to register and who did so and who
thereafterward became a laborer, is not subject to
deportation. IT. S. vs. Wing, 211, Federal, 935.

Sons of a Chinaman who is entitled to remain in this
country, who become laborers upon reaching their ma-
jority, are not subject to deportation. U. S. vs. Yuen, 211,
Federal, 1001.

To the same effect is the case of Lew Lin Shew, 217,
Federal, 317, and in this latter case the Court determines
what an affidavit shall charge in order to be sufficient
under these statutes for the deportation of aliens.

" Moral turpitude" as embraced in the 34th Stats. L.
899, U. S. Compiled Statutes, 199 Supplement, p. 500,
which is the immigration act in full, is defined in ex parte
Young, 211, Federal, 371.

116 Federal, Criminal Law Procedure.

The meaning of five years' residence is determined in
United States vs. Cantinie, 212, Federal, 925. The de-
portation of aliens under the immigration act is in no
sense a trial. Siniscolchia vs. Thomas, 195, Federal, 701.

The entire method to be followed for the deportation of
both men and women for prostitution under the Act will
be found outlined in ex parte Pouliot, 196, Federal, 437.
The right of the United States to recover the penalty for
contracting with aliens and the method to be pursued for
its collection, is discussed in United States vs. Dwight
Mfg. Co., 210 Federal, 74. Government may proceed
under Act February 24, 1907, compiled Stat., 1913, 4244,
either civilly or criminally to collect penalty for import-
ing contract labor.

The meaning of the words "free white person" within
the Act is determined in in re Najour, 174 Federal, 735.

As to when habeas corpus may be resorted to by an
alien who has been deported by the immigration authori-
ties, is determined in ex parte Gregory, 210 Federal, 680.

The United States Courts will not overrule a State
Court that has granted a naturalization certificate unless
there be substantial difference between the state ruling
and the Federal ruling, and the Federal ruling being the
paramount ruling must prevail and in such a condition
the United States Court would cancel a certificate issued
by a State Court. U. S. vs. Lanare, 207 Federal, 865.

The new immigration act provides in substance that
applications for final papers must be made within seven
years after the declaration of intention is filed. This
means that those who had filed their declaration of in-
tention prior to the passage of the 1906 act must seek
their final papers within seven years after that act became
a law, though there are some decisions to the contrary,
218 Federal, 168; 210 Federal; 211 Federal.

The granting of bail to a Chinese person after the
deportation order has been entered, is a matter of
discretion with the Court. 132 Federal, 109; 188 Federal,
350.

Chinese exclusive Act, Sept. 13, 1888, Comp. St. 1913,
4310, requires master of vessel to "knowingly" commit

Practice Suggestions. 117

the acts denounced and such intent is not met by proof
that a Chinese member, bona fide, of crew, escaped and
stayed in the United States. U. S. vs. Innes, 218 Federal,
705.

42a. a. Aliens Continued.

An alien will be deported when he is likely to become
a public charge under the Act of Feb. 5, 1917, Ex parte
Mitchell, 256 Fed. 229, the full procedure for which will
be found in Colver vs. Immigrant, 265 Fed. 17; U. S. vs.
Uhl, 266 Fed. 35.

Expatriation — The Act Governing — Mar. 2, 1907, Sec.
2, See U. S. vs. Anderson, 231 Fed. 546.

Chinemen must be tried and tried fairly, Kwock vs.
White, 40 Sup. Ct. Eep. 566.

A certificate granted by the United States Commission-
er to a Chinese person will protect him, U. S. vs. Lew, 224
Fed. 649; but is not evidence for a minor son, Ex parte
Chin, 224 Fed. 138.

A student who is temporarily forced to work is not
subject to deportation, U. S. vs. Gin; 253 Fed. 210; and a
Chineman merchant has the right of re-entry, Chin Fong,
258 Fed. 849.

A member of the Communist Party will be deported
under the Act of U. S. vs. Wallis, 268 Fed. 413.

Under the Act of Feb. 5, 1917, which punishes the
vessel which brings in prohibited aliens and which denies
the right to import laborers and prostitutes and criminals,
many interesting questions have arisen as indicated in
the following cases; to bring in aliens, Diug vs. U. S. 246
Fed. 80; who is a " white person" Dow vs. U. S. 226 Fed.
145; also Easurk 273 Fed. 207; the sort of evidence that
shall be offered as to the five years residence, U. S. vs.
Dean, 230 Fed. 957; one shall be deported to the country
from whence he came and the judicial notice of citizen-
ship, U. S. vs. Sisson, 230 Fed. 974; the act excludes
contract laborers but excepts the provisions and a Japan-
ese teacher is within such exceptions, Tat vs. IT. S. 260
Fed. 104; a nephew may remain with his uncle, U. S. vs.
Jew, 232 Fed. 279; an alien employed as a cook in a house
of prostitution is squarely within the statute and must

118 Federal. Criminal. Law Procedure.

be deported, Ex parte Loo 210 Fed. 995, Ex parte Young,
211 Fed. 370; one who gave a bad check in Canada is not
subject to deportation therefor, Howe vs. U. S. 247 Fed.
292; a marriage of a foreign prostitute to an American
will not save her from deporation, Ex parte Flores, 272
Fed. 783; it is a misdemeanor to solicit immigrants with
a promise of employment under the Act of Feb. 20, 1907,
and the offense is complete though the alien is denied
entry, U. S. vs. Morrisey, 245 Fed. 923.

§ 42b. Accomplice. — So manifest is the danger of con-
victing a man on evidence from a source confessedly cor-
rupt, and delivered by the witness to shield himself from
merited punishment, that the judges, while explaining to
the jury their right to convict on it alone, by way of
caution, advise them not to return a verdict of guilty
unless it is corroborated by evidence from a purer source,
yet they are not as of law required to give this advice.
Bishop's New Criminal Procedure, 2nd Vol., Section
1169.

There is nothing which forbids the conviction of a de-
fendant at Common Law or in a Federal Court on the un-
corroborated testimony of an accomplice. Richardson vs.
U. S., 181 Federal, 1; Lung vs. U. S., 218 Federal, 817.
Diggs vs. U. S., 220 Federal, 545. It is true there is a well
established practice sanctioned by long judicial approba-
tion, to caution jurors about accepting the evidence of an
accomplice without material corroboration, and many of
the states forbid a conviction on the testimony of an un-
corroborated accomplice. Coleman vs. State, 44 Tex. 109.
Bishop's New Criminal Procedure, 2nd Vol. Section 1169.

§ 42bb. Accomplice Continued.

The rule as stated above in the Federal Court is the
common law rule and is not altered by the state law, Ban-
dy vs. U. S. 245 Fed. 100; Freed vs. U. S. 266 Fed. 1012;
Graboyes vs. U. S. 250 Fed. 793.

And while the government may rest on the unsup-
ported and uncorroborated testimony of an accomplice,
Rosen, vs. U. S. 271, Fed. 651, Wagman vs. U. S. 269
Fed. 568, U. S. vs. Fischer, 245 Fed. 477, Hollis vs. IT. S.
246 Fed. 832, Ray vs. U. S. 265 Fed. 257, Gretsch vs. U.

Practice Suggestions. 119

S. 242 Fed. 897, Erber vs. U. S. 234 Fed. 221, Heitler
vs. U. S. 244 Fed. 140, Wallace vs. U. S. 243 Fed. 300,
the safest, sanest and most civilized practice, even in
the Federal Court is to have corrobration, U. S. vs. Mur-
phy, 253 Fed. 404, McGinniss vs. U. S. 256 Fed. 621.

It is not reversable error to fail to instruct on an ac-
complice's testimony, Nee vs. U. S. 267 Fed. 85.

§ 42c. Alaska. — Territorial Courts are controlled by
the general United States Statutes, 202 Federal, 457.

§ 42d. Assignment of Errors. — The rules of the differ-
ent circuits require that assignments of error shall be
filed by the plaintiff in error or appellant with the Clerk
of the lower Court with his petition for the writ of error
or appeal and assignment of errors, which shall set out
separately and particularly each error asserted and in-
tended to be urged, and that no writ of error or appeal
shall be allowed until such assignment of errors shall
have been filed. 193 Federal VII. The failure, how-
ever, to file an assignment of errors before the allowance
of an appeal, does not deprive the Appellate Court of
jurisdiction and the appeal will not be dismissed because
the assignment of errors was not filed until later, where
there was a valid reason therefor. Bernard vs. Lea, 210
Federal, 583.

An error not assigned may sometimes be noticed, es-
pecially if it be a fundamental error. Savage vs. U. S.,
213 Federal, 31.

The writ of error must be sued out and lodged in the
Court below within sixty days from the date of judg-
ment. 211 Federal, 970."

A supersedeas is not obligatory upon the Court.. 188
Federal, 396. U. S. vs. Gibson.

Writ of error may go direct to the Supreme Court of
the United States from the trial court under certain con-
ditions detailed in United States vs. Nixon et al., Supreme
Court of the United States, Oct. Term, 1914.

§ 42dd. Assignment of Errors Continued.
An assignment of error must be based on an excep-
tion, Finlev vs. U. S. 256 Fed. 845.

120 Federal Criminal Law Procedure.

An allowance of the writ of error does not divest the
trial court of jurisdiction to do certain things, U. S. vs.
Pollak, 230 Fed. 532.

The court cannot legally grant leave to amend the as-
signment of errors, Kreuzer vs. U. S., 254 Fed. 34.

While a criminal case must be taken up by a writ of
error the court determined in Buessell vs. U. S. 258 Fed.
811, that it would consider a criminal case which came
to it by appeal.

Assignments of error must be copied in the brief,
Lohman vs. Company, 243 Fed. 517, and assignments
which are not so copied in accordance with the rules will
not be considered, Harris vs. IT. S. 249 Fed. 41.

§ 42e. Army and Navy. — Courts martial will not be
interfered with by Civil Courts. Tucker, 212 Federal,
569. Civil Courts are not Courts of Error to review the
judgments of courts martial where they are legally organ-
ized and have jurisdiction of the offense and of the per-
son and have complied with statutory requirements
governing their procedure. Mullan vs. U. S., 212, U. S.,
516.

§ 42ee. Army and Navy Continued.

In time of war the jurisdiction of courts martial ex-
tends to all offenses that are specified in the articles of
war and the jurisdiction is supported. Ex parte King.
246 Fed. 848; the court, in U. S. vs. Waller, 225 Fed!
673, refuses the jurisdiction of courts martial.

For decisions relating to conscription, draft boards,
and soliciting to necessary draft see U. S. vs. Stephens,
245 Fed. 956; Ex parte Beck 245 Fed. 967 and U. S. vs.
Galleanni, 245 Fed. 977.

§ 42/. Appeal and Writ of Error. — The new judicial
code of March 3, 1911, provides at Section 128, page 143,
Hopkins Judicial Code, that the Circuit Court of Appeals
shall exercise appellate jurisdiction to review by appeal

or writ of error the final decisions in the District Courts.

# # #

Section 238 provides for the taking by appeal or writ of
error direct to the United States Supreme Court from the
District Court, in any case in which the jurisdiction of the

Pkactice Suggestions. 121

Court is in issue, in which case the question of jurisdiction
alone shall be certified to the Supreme Court from the
Court below for decision; from the final sentence and de-
crees in prize cases; in any case that involves the construc-
tion or application of the Constitution of the United
States; in any case in which the Constitutionality of any
law of the United States, or the validity or construction
of any treaty made under its authority, is drawn in
question; and in any case in which the Constitution or
law of a State is claimed to be in contravention of the
Constitution of the United States.

Section 240 of the same act provides that in any case,
civil or criminal, in which the judgment or decree of the
Circuit Court of Appeals is made final by the provisions
of that Act, it shall be competent for the Supreme Court
to require, by certiorari or otherwise, upon the petition
of any party thereto, any such case to be certified to the
Supreme Court for its review and determination, with
the same power and authority in the case as if it had
been carried by appeal or writ of error to the Supreme
Court.

All criminal cases are cases at law and therefore are
reviewable only by writ of error and not by appeal. All
equity cases are reviewable only by appeal. The disbar-
ment of an attorney is an action in law and the proceed-
ings of the lower Court are reviewed upon writ of error
instead of upon appeal, Thatcher vs. U. S., 212 Federal,
805.

A writ of error may be prosecuted in forma pauperis
as provided by the Act of June 25, 1910. Latham vs.
U. S., 210 Federal, 159.

This Act provides for appellate rights by a pauper
either by writ of error or appeal if the person shall certi-
fy under oath his poverty and inability to pay the costs
or to give security therefor, and provided the trial court
shall not certify, in writing, that in its opinion, such ap-
peal or writ of error is not taken in good faith. Act of
June 25, 1910, p. 401, Thornton on Federal Acts.

122 Federal Criminal Law Procedure.

§ 42ff. Technical Errors.

In answer to a popular demand the congress passed, in
Feb. 1919, an amendment to Sec. 269 of Judicial Code,
what has been termed the Harmless Error Act. When
the appellate court is convinced of the guilt of the defend-
ant and feel that technical errors would not effect his
substantial rights it will affimi the case. In any other
country than America a statute of this sort would be
very dangerous and I am not prepared to say that it is
not dangerous here. If we are to have an adjudicated
system of rules and procedure for the trial of men
charged with crime and if such men have the right of
precedent as well as statutory and constitutional safe-
guards I am unable to draw a dividing line between such
of these as are imperative and needful and such of these
as are useless and formal. If a right is denied it is im-
material whether it is a large right or a small right. It
is like taking one's property — the value of it is im-
material — the wrong is what concerns civilization.

The courts have talked about this amendment spar-
ingly but seem to have admitted its presence. Sneier-
son vs. U. S. 264 Fed. 275; Dye vs. U. S. 262 Fed. 6.

§ 42#. Bill of Particulars. — When an indictment sets
forth the facts constituting the essential elements of the
offense with such certainty that it cannot be pronounced
ill upon motion to quash or demurrer, and yet is ac-
knowledged in such language that the accused is liable
to be surprised by the production of evidence for which
ne is unprepared, he should, in advance of tne trial, ap-
ply for a bill of the particular. Rinker vs. U. S., 151
Federal, 759; Loring vs. U. S., 91 Federal, 881. A bill
of particulars cannot make an indictment valid which
fails to state an essential element of the offense, ■ when
objection is made at the proper time and in the proper
manner. May vs. U. S., 199 Federal, 61. Morris vs. U.
S., 161 Federal, 672. Connors vs. U. S., 158, U. S. 408.

§ 42gg. Bill of Particulars Continued.

An application for a bill of particulars may be denied
on the second trial, Ciafridini vs. U. S. 266 Fed. 471;
the granting of a bill of particulars is a matter of dis-

Practice Suggestions. 123

cretion, Moens vs. U. S. 267 Fed. 317; Horowitz vs. U. S.
262 Fed. 48; IT. S. vs. Rosenwasser, 255 Fed. 233; U. S.
vs. Pierce, 245 Fed. 888; U. S. vs. Gouled, 253 Fed. 239;
a denial of a bill is not reviewable Savage vs. U. S. 270
Fed. 15.

A bill of particulars cannot correct a defective indict-
ment, Collins vs. U. S. 253 Fed. 609.

The court may order a bill of particulars when an in-
dictment is good on demurrer but does not furnish the
defendant with all the information that he is entitled to
have before being compelled to go to trial, Foster vs.
U. S. 253 Fed. 481. Wilson v. U. S. 275 F. 307.

§ 42h. Corporations — Indictment of. — Regardless of
the original position of the Courts of this and the mother
country, and regardless of the differences that exist in the
early decisions of the Courts of this country, it is now well
settled that corporations may be indicted, as well for mis-
feasance as for non-feasance. 10 Cyc. 1226. The original
theory was that a corporation was not indictable for acts
of misfeasance because it had no power, under its charter,
to commit such acts, but that when those who professed to
act in this behalf committed acts of misfeasance they were
acting ultra vires and their acts were personal acts and
not the acts of the corporation. This rule was strictly
analogous to the ancient doctrine that evil intent or mo-
tive cannot be imputed to a corporation and that a cor-
poration cannot be made liable to a civil action for a
trespass or other malicious injury unless committed by
deed. 10 Cyc. 1226.

These theories and ideas have been completely over-
turned and this is thoroughly settled, both in England
and in the United States, that a corporation may be
prosecuted, both for misfeasance and non-feasance. El-
lis vs. U. S., 206 U. S.; U. S. vs. Kelso, 86 Federal, 304;
U. S. vs. Corporation I, 125 Federal, 94.

In Kaufman vs. U. S., 212 Federal, 613, the conviction
of an individual for aiding and abetting a corporation
in the commission of a criminal offense was affirmed.
In the Kaufman case Circuit Judge Rogers says: "It
is undoubtedly the case that decisions and dicta can be

124 Federal Criminal. Law Procedure.

found denying that a corporation can be indicted. Lord
Holt is reported as having said that 'A corporation is
not indictable, but the particular members of it are.'
But it is a well-established principle of modern juris-
prudence that an indictment will lie against a corpora-
tion, although there are some crimes, as treason or felony
or breach of the peace, in respect of which it is agreed
that an indictment could not be maintained against it,
and it has been held that where a statute prescribes fine
and imprisonment, it is not applicable to a corporation,
because a corporation cannot be imprisoned. U. S. vs.
Braun, 158 Federal, 456. But in Cohen vs. U. S., 157
Federal, 651, this Court decided that a bankrupt corpo-
ration was capable of committing offense of knowingly
or fraudulently concealing its property from its trustee,
definable and made punishable by the bankruptcy act,
and that persons who conspire to cause a corporation
to commit such an act are indictable for the conspiracy
and that it is immaterial that a corporation is not or
cannot be indicted as one of the conspirators.

The indictment should be against the corporation in
its corporate name. 10 Cyc. 1231; 3rd Chitty Criminal
Law, 587.

In the Ellis case, cited supra, there were a number of
corporations indicted for violation of the Federal eight-
hour Act, and so far as the record discloses in the Su-
preme Court of the United States, there was no question
raised whatsoever as to the propriety of the proceedings.

Upon the filing of an information or an indictment
against a corporation, the moving officer should cause a
summons to be prepared for service upon the corporation
which should direct the defendant to appear before the
Court on a given date to answer the charge contained in
the accusing document, and such summons should con-
tain a general statement of the nature of the charge, and
advise the defendant that it might secure a more com-
plete statement of such offense by referring to the infor-
mation or indictment on file with the clerk. U. S. vs.
Kelso, 86 Federal, 304; U. S. vs. Nixon, Supreme Court of
the United States, Oct. Term, 1914.

Pbactice Suggestions. 125

In the case of Hanley vs. IT. S., 186 Federal, 711, the
defendant, who was general manager for a corporation,
was convicted for aiding and abetting other employees
of the corporation, but, the case does not seem to raise
the question being here considered as to the liability of
the corporation.

In the preparation of summons or citation for a cor-
poration to answer a criminal charge, I would suggest
the following of the statute of the particular state in
which the prosecution is pending that covers the service
of Court summons for a corporation. U. S. vs. Kelso.

Bishop, in Bishop's first volume, New Criminal Law,
page 255, Section 417, treats of the capacity of a corpo-
ration for crime and maintains that a corporation can-
not, in its corporate capacity, commit a crime by an act
in the fullest sense ultra vires, but within the sphere of
its corporate capacity, and to an undefined extent, when-
ever it assumes to act as a corporation it has the same
capabilities of criminal intent and of act, in other words,
of crime, as an individual man sustaining to the thing
the like relation.

Of course it will be borne in mind, which question can
seldom arise in a criminal prosecution, however, that a
corporation is a citizen only of the state in which it is
incorporated. Baldwin vs. Pacific, 199 Federal, 291;
Lemon vs. Imperial, etc., 199 Federal, 927; Woerheider
vs. Jones, etc., 199 Federal, 535. Eevett vs. Clise, 207
Federal, 673.

§ 42hh. Corporations — Indictments of Continued.

Though a corporation cannot commit certain crimes,
and may not be arrested or imprisoned, a proceeding
against it for the violation of a criminal statute is a
"criminal proceeding," with all the incidents of such
a proceeding, and an information therein is defective,
if made upon the oath of parties named in annexed affi-
davits taken before notaries public, U. S. vs. Schallinger,
230 Fed. 290.

§ 42i. Error — Not Assigned. — In criminal cases Courts
are not inclined to be as exacting with reference to the
specific character of the objection made, as in civil cases.

126 Federal Criminal Law Procedure,

They will, in the exercise of a sound discretion, some-
times notice error in the trial of a criminal case, although
the question was not properly raised at the trial by ob-
jection and exception. Crawford vs. U. S., 212 U. S.,
183; "Wiborg vs. U. S. 163; U. S. 632; Weems vs. U. S.;
217 U. S. 349; Savage vs. U. S.; 213 Federal 31.

Of course this is a most unsafe practice and a most
unsafe way in which to try a criminal case. The courts
are not called upon to consider objections to the instruc-
tions of the Court or objections to the introduction of
testimony unless exceptions were properly reserved and
are properly presented for consideration of the Appel-
late Court. Savage vs. U. S., 213 Federal, 32; Hickory
vs. U. S., 151 U. S., 303; Stewart vs. Wyoming Cattle Co.,
128 U. S., 383; Lewis vs. U. S., 146, U. S. 370.

§ 42ii. Bill of Exceptions and Error.

See Sec. 27a. 27b. and 42i.

A bill of exceptions cannot be settled after the term
without an express order of court made during the term
or by understanding with opposing counsel, save under
very extraordinary circumstances, Susquehanna vs. Cas-
ualty, 247 Fed. 137; Blisse vs. U. S. 263 Fed. 961.

That counsel of both government and defendant call the
transcript of the stenographer's notes a bill of exceptions
is not sufficient to make it such. Fraina vs. U. S. 255
Fed. 28.

The court will look at a radical error and reverse
though such error was not properly saved, McNutt vs.
U. S. 267 Fed. 670; August vs. U. S.*257 Fed. 388; which
cases show the Act of Feb. 26, 1919, which amended Sec.
269 of the Judicial Code and requires courts of appeals
to look at all the record and render judgment without
regard to technical errors; but this requirement must
not be construed as relieving the complaining party of
showing prejudicial error, Eich vs. U. S. 271 Fed. 566;
Rosen vs. U. S. 271 Fed. 651.

§ 42j. Continuance. — It is well settled that the ac-
tion of the trial Court upon an application for a contin-
uance is a matter of discretion not subject to review, un-
less such discretion has been abused. Hardy vs. U. S..

Practice Suggestions. 127

186; U. S. 224; Latham vs. U. S., 210 Federal, 159; Isaacs
vs. U. S., 159, U. S. 487; Goldsbuy vs. U. S., 160 U. S. 70;
Metropolitan Street Railway vs. Davis, 112 Federal, 634;
Pacey vs. McKinney, 125 Federal, 679; Dexter vs. Kellas,
113 Federal 48.

In Youtsey vs. U. S., 97 Federal, 940, it was held that an
application for continuance which contains also a show-
ing, supported by affidavits of the mental weakness of
the defendant occasioned by epilepsy, requires the Court
to try the issue by appropriate proceedings.

§ 42jj. Continuance Continued.

The action of the court in overruling a motion for
continuance is reviewable only for an abuse of discre-
tion, continues to be the rule of the later decisions, Spear
vs. U. S. 246 Fed. 250; Penn vs. Fanger, 231 Fed. 851;
Moens vs. U. S. 267 Fed. 317.

§ 42A-. Extradition. — Under the Constitution of the
United States one who commits an offense in one State
and flees to another, is liable to be extradited and the
State in which the refugee is sought must respond when
application is made to its chief executive. In the Fed-
eral procedure, however, extradition is accomplished by
a much simpler process and there is no appeal to the
Executive of the State. Defendants are removed from
one state to another or from one district to another,
rather, as the case may be. The statute authorizing this
procedure is old Section 1014, the latter part of which
reads as follows, "And where any offender or witness is
committed in any district other than that where the of-
fence is to be tried, it shall be the duty of the judge of
the district where such offender or witness is imprisoned,
seasonably to issue, and of the marshal to execute, a war-
rant for his removal to the district where the trial is to
be had."

The procedure is simply that the prosecuting officer
for the district where the defendant is apprehended, pre-
sents a written statement of such apprehension, includ-
ing a synopsis of the defendant's preliminary hearing be-
fore a United States Commissioner, to the Court and
moves that the Court grant the warrant directing the

128 Federal Criminal, Law Procedure.

marshal to make the removal. See also Section 14, ante.

Questions of extradition, however, may reach the Fed-
eral Courts, as in the case of ex parte Thaw, 214 Federal,
423, where the Court held that as the source of the extra-
dition power of the states is Federal, and as it relates to
crime only and contemplates the exercise of exceptional
and arbitrary control in restraint of personal liberty, the
Federal constitution and Acts of congress have reserved
to the Federal Government, and imposed upon its Courts,
the very important duty of seeing that the power is ex-
ercised upon due and appropriate process, and that it
shall not be extended to pleas, and exercised in all cases,
not clearly intended by the constitution. See also 209
Federal, 954.

In the case of Drew vs. Thaw, U. S., Supreme Court,
Oct. Term, 1914, it was held that extradition may not be
defeated by a resort to an habeas corpus writ.

Section 1014, by the Act of February 21, 1871, 16 Stats.
L. 426, is made applicable to the District of Columbia. IT.
S. vs. Hyde, 132 Federal, 545.

And so when a fugitive has been discharged wrong-
fully, he may be re-arrested. Ex parte Scherer, 195 Fed-
eral, 334. Federal Courts may take jurisdiction by the
habeas corpus route to prevent an illegal extradition
by a state sheriff under certain circumstances. Sheriff
vs. Daily, U. S. Supreme Court, decided May 15, 1911.

On habeas corpus to prevent extradition the regularity
of the proceedings only will be inquired into. Ex parte
Graham, 216 Federal, 813.

In extradition matters the technicality of a trial is not
required. Gluckman vs. Henkle, U. S. Supreme Court,
May 29, 1911. See also ex parte Charlton, 185 Federal,
880. A general extradition order is not liable to attack
by habeas corpus. McNamara vs. Henkle, U. S. Supreme
Court, Oct. Term, 1912, decided January 3, 1913. Gov-
ernor's warrant is sufficient until presumption of its
legality is overthrown, Eeed vs. U. S. 224 Fed. 378.

General rules governing such procedure in the Fed-
eral Courts will be found in re Zentner, 188 Federal, 344.
An exhibition on extradition of a certified copy from the

Practice Suggestions. 129

Secretary of State is sufficient. Ex parte Urzua, 188
Federal, 541. See Section 322 post.

§ 42kk. Extradition Continued.

See Sees. 4 and 4a, for constitutional provisions. It is
only on a charge of crime that extradition may be re
sorted to under paragraph 2, of Art. 4, of the constitution
and proceedings before a Governor will be accorded a
large measure of conclusiveness, Reed vs. U. S. 224 Fed.
378.

A jury trial will not be granted when the facts are not
disputed for the purpose of determining the defendant's
presence and connection with the crime, Ex parte Crow-
ley, 268 Fed. 1016; and the indictment will not be ques-
tioned, Hogan vs. O'Neil 41 Sup. Ct. Eep. 222.

For a treatise on "indictment" and "fugitive" see
Ex parte Montgomery, 244 Fed. 967; Ex parte Birdseye,
244 Fed. 972.

For views with reference to extradition to a foreign
country and the presumption that the foreign country
will try only for the extradicted offenses see Grin vs.
Shine, U. S. Sup. Ct. 177 U. S. -47 L. E. 130; Bingham
vs. Bradley, 241 U. S. 511.

For cases bearing upon the sufficiency of the charge
and indictment and procedure see Reichman vs. Harris,
252 Fed. 371; Innes vs. Tobin, 240 U. S. 127; Sec. 5278
Compiled Revised Statutes of the United States 1913.

§ 42/. Judge — Disqualification of. — Section 601 of the
Revised Statutes of the United States, United States
Compiled Statutes 1901, p. 484, provides that if the Judge
of any District Court is in any way concerned in interest
in any suit pending therein, or has been of counsel for
either party, it shall be his duty, on application of either
party, to certify the case to another Court. Section 21
of the Judiciary Act approved March 3, 1911, p. 27, Hop-
kins Judicial Code, provides that, whenever a party to
any action or proceeding, civil or criminal, shall make
and file an affidavit that the Judge before whom the ac-
tion or proceeding is to be tried or heard has a personal
bias or prejudice either against him or in favor of . any
opposite party to the suit, such Judge shall proceed no

130 Federal Criminal Law Procedure.

further therein, but another Judge shall be designated
in the manner prescribed in the Section last preceding,
or chosen in the manner prescribed in Section 23 to hear
such matter. Every such affidavit shall state the facts
and the reasons for the belief that such bias or prejudice
exists and shall be filed not less than ten days before
the beginning of the term of Court, or good cause shall
be shown for the failure to file it within such time. No
party shall be entitled in any case to file more than one
such affidavit; and no such affidavit shall be filed unless
accompanied by a certificate of counsel of record that
such affidavit and application are made in good faith.
The same proceedings shall be had when the presiding
judge shall file with the clerk of the Court a certificate
that he deems himself unable, for any reason, to preside
with absolute impartiality in the pending suit or action.

The Supreme Court of the United States, in Glasgow
vs. Moyer, 225 U. S., 425, refuses in an habeas corpus
proceeding to pass upon the question as to whether or
not an affidavit filed under this Section 21, could be filed
after the case had been tried.

The Court of Appeals for the First Circuit, in Kinney
vs. Plymouth Rock et al., 213 Federal, 449, decided that
Section 21 quoted above did not apply to appellate tribu-
nals. The affidavit, in order to be effective under this Sec-
tion, must state the facts and an allegation of information
and belief is insufficient and ineffective. Neither will a
certificate from counsel who has never been admitted be-
fore the Court, be effective. Ex parte Fairbank Co., 194
Federal, 978. District Judge Jones, in ex parte Fairbank,
supra, held that if the Section is to be construed literally
to mean that the mere filing of an affidavit in accordance
therewith is sufficient to disqualify the Judge without
hearing or determination of whether the facts stated
are true or show disqualification, then and in that event,
in his opinion, the Section would be unconstitutional as
depriving the Courts of judicial power and vesting the
same in the litigants to that extent.

It is entirely possible that Congress intended that if,
in the mind of the litigant, the facts existed which would

Practice Suggestions. 131

disqualify the Court, that it were better that some other
Judge should sit than leave the impression in the honest
litigants' mind that his cause had been determined by
a prejudiced or biased tribunal, and while the Constitu-
tion of the United States places judicial power exclu-
sively in the Courts, yet the hearing of a law suit before
one court or another court is a matter of venue and is,
in more than a restricted sense, the right and liberty of
the litigant to choose.

In construing the meaning of Section 601, cited above,
in an opinion rendered January 2, 1912, which was be-
fore Section 21 of the new Code went into effect, in Ep-
stein vs. United States, 196 Federal, 354, the Circuit
Court of Appeals for the Seventh Circuit held that where
the defendant was brought to trial before a Judge who
had previously remarked, in the presence of the accused :
4 'This is a nasty piece of business. This estate has been
looted by someone." And then turned to the officer of
the Court and directed that he use what was left of the
estate, even to the last penny, to investigate the matter,
and if anyone, whoever he might be, had committed any
act that could be reached and punished under the law,
to institute proceedings against him, had merely per-
formed his duty to direct an official investigation of what
appeared to be a criminal offense, and did not there-
fore become disqualified to try the accused therefore,
as being either "concerned in interest" or "of counsel"
for the prosecution.

§ 42 w. Nolo Contendere. — This plea is the defend-N
ant's declaration in Court that he will not contend with
prosecuting power. It is pleadable only by leave of the
Court, and in light misdemeanors. The difference be-
tween it and guilty appears simply to be that while the
latter is a confession binding the defendant in other
proceedings, the former has no effect beyond the partic-
ular case. Bishop's New Criminal Procedure, 2nd Vol.,
p. 624. It is allowable only under leave and acceptance
by the Court and when accepted the Court becomes an
implied confession of guilt and, for the purposes of the
case only, equivalent to a plea of guilty, but distinguish-

132 Federal, Criminal Law Procedure.

able from such plea in that it cannot be used against the
defendant as an admission in any civil suit for the same
act. Tucker vs. United States, 196 Federal, 260.

Since the Common Law rule governs in the Federal
Courts such a Court, in order to entertain a plea of nolo
contendere must find the case within the class of misde-
meanors, for which punishment may_ be imposed by_fine_
alone, although the offense may still be punishable by
imprisonment at the discretion of the Court, either as an
alternative of fine, or in addition thereto, or to enforce
payment of the fine. Such a plea cannot be accepted for
cases of felony requiring infamous punishment, nor in
cases of misdemeanors for which the punishment must
be imprisonment. When an indictment contains counts
charging offenses for which the statute requires the im-
position of punishment by both fine and imprisonment
and other counts for offenses which may be punishment
by fine alone, the Court has authority to allow a tendered
plea of nolo contendere, but in such case the further pro-
ceedings and punishment must be confined to the latter
class of counts, to which alone the plea is applicable. Tuc-
ker vs. U. S., 196 Federal, 260. When plea of nolo con-
tendere is tendered to an indictment containing counts,
some of which charged offenses which required punish-
ment by both fine and imprisonment, and also other
counts upon which a fine alone might be imposed, a Court
cannot hear evidence, and make a finding of guilty as
charged, and sentence the defendant to both fine and im-
prisonment, because such action is inconsistent with the
acceptance of such a plea and would be a judgment of
conviction within a jury trial and therefore unlawful and
unconstitutional and void. Tucker vs. U. S., 196 Federal,
260.

After a plea of nolo contendere it is not necessarv that
the Court should adjudge that the party was guilty be-
cause that follows by necessary legal inference from the
implied confession. State vs. Herlihy, 66 Atl., 643; 102
Me., 310.

Such a plea when accepted by the Court, cannot be
withdrawn and a plea of not guilty entered, accept by

Practice Suggestions. 133

leave of the Court. State vs. Siddall, 68 Atl., 634; 103
Me., 144. It seems improbable that a Court, after having
accepted such a plea, could thereafter compel the defend-
ant to withdraw it, nor could the Court fail to act upon
such a plea after the same were tendered to and accepted
by him.

§ 42rc. New Trial.— Section 726 of the Eevised Stat-
utes gives the United States Courts the power to grant
new trials in cases where there has been a trial by jury,
for reasons for' which new trials have been usually grant-
ed in Courts of law.

Motions for new trials are addressed to the discretion
of the Court in the Federal jurisdiction and are not re-
viewable in an Appellate Court. Terre Haute vs. Stru-
ble, 109 U. S., 381; Berry vs. Seawall, 65 Federal, 744;
Alexander vs. U. S., 57 Federal, 830; Jacksonville vs.
Smith, 78 Federal, 295; Cape Fear, etc., vs. Pearsall, 90
Federal, 437; Nininger vs. Cowan, 101 Federal, 789; U.
S. vs. Rio Grande etc. 184, U. S., 423; Carlisle vs. U. S.,
194, Federal 830. Pocahontas vs. U. S., 218 Federal,
782, C. C. A. Gladden vs. Gabbert, 219 Federal, 855.

It is well settled that a ruling of the trial Court deny-
ing a new trial cannot be assigned as error. Lueders
vs. U. S., 210 Federal, 421; Moore vs. U. S., 150 U. S.,
57; Holder vs. U. S., 150, U. S. 91; Blitz vs. U. S., 153
U. S., 308; Wheeler vs. U. S. 159, U. S. 523; Clune vs. U.
S. 159, U. S. 590; Corenman vs. U. S., 188 Federal, 424.

It is well settled that the granting or refusing a new
trial is a matter within the sound discretion of the trial
Court and that its action in the exercise of such discre-
tion cannot be reviewed. It is also settled that if the
trial Court refuses to exercise or abuses this discretion,
its judgment will be reversed because thereof. Felton
vs. Spiro, 78 Federal, 576; James vs. Evans, 149 Federal,
136; Mattox vs. U. S. 146, U. S. 140; Dwyer vs. U. S.,
170 Federal, 160.

An attempt was made to bring the case of Higgings vs.
U. S., 185 Federal, 710, within the last paragraph of the
above rule, but the lower Court, in acting on the motion
for new trial, did not refuse to exercise, or abuse its dis-

134 Federal Criminal Law Procedure.

cretion. It overruled the motion because in the exercise
of its discretion it did not believe that it was entitled to
a new trial.

§ 42nn. New Trial Continued.

Even though the application for a new trial is based
on the allegation that new evidence has been discovered
it does not chance the discretionary rule, Bates vs. U. S.
269 Fed. 563.

Judicial discretion does not mean an optional ac-
tion. A trial court has discretion in passing upon a mo-
tion for a new trial but an abuse of such discretion would
be noticed by the appellate court. Thus the action of
the trial court in committing a defendant's witness for
contempt in the presence of the jury will furnish such
basis to the appellate court to order a new trial, Ruther-
ford vs. U. S. 258 Fed. 855.

See also Lee Dock vs. U. S. 224 Fed. 431, with refer-
ence to the discretionary power. In Andrews vs. U. S.
224 Fed. 418, it was held that the same discretion vests
in the trial court with reference to which on a motion
in an arrest of judgment.

§ 42o. Limitations. — Sections 1043 to 1048, inclusive,
of the 1878 statutes contain such general limitations as
Congress has seen fit to make against the prosecution of
Federal offenses, with the exception, of course, of such
limitations as may be contained in many of the criminal
statutes themselves. Where a statute, therefore, does not
provide a limit within which prosecution thereunder
shall be had, the general statutes here mentioned apply.

Section 1043 provides that no person shall be prosecut-
ed, tried or punished for treason or other capital offense,
wilful murder excepted, unless the indictment is found
within three years next after such treason or capital of-
fense is done or committed. Section 1045 provides that
the statute of limitations should not apply to any person
fleeing from justice and in Section 1046 the limitation
for the prosecution of those violating the revenue laws
was fixed at five years, and provided that no one should
be prosecuted, tried or punished for any crime arising
under the revenue laws or the slave trade laws of the

Practice Suggestions. 135

United States unless the indictment is found, or the con-
viction is instituted within five years next after the com-
mitting of such crime. Section 1048 is not now interest-
ing for the reason that it related to matters arising dur-
ing the Civil War.

In United States vs. Green, 146 Federal, 804, the Court
construed the fugitive exception to mean absence from
the district in which the offense was committed. See
also 154 Federal, 402, as to pleading.

Judge Pardee, speaking for the Circuit Court of Ap-
peals for the Fifth Circuit in Carter vs. New Orleans,
etc., 143 Federal, 99, held that Section 1047, which pro-
vided a period of five years for the commencement of
suits for penalties, forfeitures, etc., accruing under the
laws of the United States, would govern rather than a
state statute in a suit brought for a Federal penalty un-
der Section 2 and 8 of the Act regulating commerce, that
is penalty for giving special rates, rebates, etc.

On July 4, 1884, 23 Stats. L. 122, 1st Vol. Supp. 463,
Congress changed the statute of limitations as to revenue
laws of the United States, and provided that no prosecu-
tion should be brought nor any person tried or punished
for any of the offenses under the internal revenue laws
unless an indictment is found or the information institut-
ed within three years next after the commission of the
offense, in all cases where the penalty prescribed may be
imprisonment in the penitentiary, and within two years
in all other cases, provided that the time during which
the person committing the offense is absent from the dis-
trict shall not be taken as any part of the time limited
by law for the commencement of such proceedings, and
further provided that where a complaint shall be in-
stituted before a Commissioner of the United States
within the period above limited, the time shall be extend-
ed until the discharge of the grand jury at its next ses-
sion within the district, and provided further that the act
shall not apply to offenses committed by officers of the
United States.

It must be borne in mind in this connection that the
words "indictment found or information instituted" are

136 Federal Criminal Law Procedure.

not satisfied by the filing of an affidavit before a Com-
missioner. Such action by the government will not stop
the running of the statute. Matter of Lacey, 1894, Okla.,
4. A nolle prosed indictment will not stop the run-
ning of the statute. United States vs. Ballard, 3 McLean,
U. S. 469, 2nd Vol. Fed. Stats. Ann. p. 358. Limitation
may be raised by demurrer, U. S. vs. Watkins, 3rd
Cranch. C. 441; U. S. vs. Shorey, 9 Internal Revenue, 302,
27 Fed. Cas. No. 16281. See also p. 349, Vol. I. Gould &
Tucker Notes. For construction of the Act of Federal
Limitations, see 91 U. S., 566. But see Revenue Statute.

§ 42oo. Limitations Continued. — In a suit for land by
the United States a statute of limitation will not bind the
United States unless Congress has clearly manifested
that it should be bounded thereby, U. S. vs. Whited, 246
U. S. 552.

By the Act of July 5, 1884, shown at page 806, Vol. 3,
Federal Statutes Annotated, there was a provision limit-
ing jDrosecutions under internal revenue laws unless the
indictment was found or the information instituted with-
in three years last after the commission of the offense
where the penalty was imprisonment in the penitentiary
and two years in all other cases. With provisions for
absence from the district and for stopping the ruling of
the limit while a complaint was pending before a commis-
sioner until the discharge of the grand jury at the next
session of court and with a further provision that such
limit does not apply to offenses committed by officers of
the United States.

See also Taylor vs. U. S., 45 Fed. 531, reversed by the
Supreme Court in 147 U. S. 695; Mackins vs. U. S., 117
U. S. 355; U. S. vs. Norton, 91 U. S. 250; see also Sec.
344 Penal Code Appendix.

Likewise many statutes have their special provisions
of limitation such as bankruptcy, revenue, the Volstead
Act, narcotic law.

§ 42p. Sherman Law— Trust Statute. — Section 1, 2
and 3 of the Act of July 2, 1890, denounces monopolies
and combinations in restraint of trade and provides crim-
inal punishments for those found guilty of such offenses.

Practice Suggestions. L37

Section 1 provides that every contract, combination in
the form of trust or otherwise, or conspiracy in restraint
of trade or commerce among the several states, or with
foreign nations, is declared to be illegal and the violation
thereof is declared to be a misdemeanor, punishable by
a fine not exceeding $5000, or by imprisonment not ex-
ceeding one year, or by both said punishments at the
discretion of the court.

Section 2 provides, "Every person who shall monopo-
lize or attempt to monopolize or combine or conspire with
any other person or persons to monopolize any part of
the trade or commerce among the several states, or with
foreign nations, shall be deemed guilty of a misdemeanor
and on conviction thereof shall be punished as provided
in the first section."

Section 3 declares every contract, combination in form
of trust or otherwise, or conspiracy in restraint of trade
or commerce, in any territory of the United States or of
the District of Columbia, or in restraint of trade or com-
merce between any such territory and another, or be-
tween any such territory or territories, and any state or
states or the District of Columbia, or with foreign nations,
is declared illegal, and a punishment like that prescribed
in the first section, is provided for. Page 3200, Vol. 3,
U. S. Compiled Statutes 1901; 26 Stats. L. 209. The Act
was amended by the Act of June 29, 1906, 34 Stats. L. 504,
and was later amended in minor as shown in Section 1
of the Act of October 15, 1914, 7 Fed. Stats. Ann. 336,
346, 347, and p. 402, 1914, Supp. Fed. Stats. Ann.

In the Act of October 15, 1914, it is provided in Section
14, thereof that whenever accorporation shall violate any
of the penal provisions of the anti-trust laws, such viola-
tion shall be deemed to be also that of the individual di-
rectors, officers, or agent of such corporation who shall
have authorized, ordered or done any of the Acts con-
stituting, in whole or in part, such violation, and such
violation shall be deemed a misdemeanor punishable to
the same extent as provided in Section 1 heretofore no-
ticed.

138 Federal Criminal Law Procedure.

The Act was further aided by the Act of September 26,
1914, Section 8836-A, United States Compiled Statutes,
by the establishment of a Federal trade commission. But
the latter Act contains no additional criminal offense,
save and except for failure to testify or to produce docu-
mentary evidence and for making false entries in reports
or accounts of corporations, or for removal or mutilation
of documents, and also for certain contempts. The stat-
ute is constitutional and reaches corporations. New York
Railroad Co. vs. U. S.; 212 U. S. 481. It also reaches
joint stock associations and partnerships. U. S. vs.
Adams Express Co., 229 U. S., 381. Burden is in the Gov-
ernment. U. S. vs. American, 275 F. 939.

Prosecutions may be successfully had under the Act
for cornering a commodity. That the immediate result
of the corner advances rather than depresses the price
of the commodity is no defense. U. S. vs. Patten, 226 U.
S., 525, which reverses U. S. vs. Patten, 187 Federal, 664.
An overt act in furtherance of the conspiracy is unneces-
sary. U. S. vs. Patten, 187 Federal, 664. The contin-
uance of a monopoly after the completion of the conspir-
acy, is itself an offense under this Act. U. S. vs. Patter-
son, 201 Federal, 698, in which case will be found the cash
register nidictment in full. This cause was reversed by
the Circuit Court of Appeals.

A mere purchase of competing plants does not neces-
sarily constitute a monopoly within the meaning of the
statute. U. S. vs. Keystone Watch Company, 218 Fed-
eral, 502. A combination may be in violation of this
statute even though the monopoly may not have been
attempted to any harmful extent, but is potential only,
and an elimination of competition between competing
concerns, if illegal, is equally so, whether effected by an
agreement or by a consolidation. U. S. vs. International
Harvester Co., 214 Federal, 987.

There must not only be a restraint of trade, but an
undue restraint, and to make a restraint unreasonable it
must appear either that the normal volume of interstate
trade has been interfered with by artificial agencies af-
fecting to a substantial degree and to the disadvantage

Practice Suggestions. 139

of the public the price or supply of the commodity, or
that there has been a direct and intentional interference
with the transportation of commodities in interstate com-
merce. Thus a purchase of an interstate milk business to
the extent that the purchasers own 86 per cent of the
business, are not merely unreasonable because of such
purchase, but such question of unreasonableness was a
question for the jury. U. S. vs. Whiting, 212 Federal,
467. The Act should be construed in the light of reason,
and as so construed it prohibits all contracts and com-
binations which amount to an unreasonable or undue re-
straint of trade in interstate commerce. Standard Oil
Co. vs. U. S., 221 U. S., 1.

A contract to strangle a threatened competition by
preventing the construction of an immediately projected
line of railway, which if constructed would naturally and
substantially compete with an existing line for interstate
traffic, is one in restraint of interstate commerce and in
violation of the Act. U. S. vs. Union Pacific, 188 Federal.
102.

On the other hand a combination cannot escape the
condemnation of the Act merely because of the form it
assumes and a single corporation, if it arbitrarily uses
its power to force weaker competitors out of business or
to coerce them into a sale to or union with such corpora-
tion, puts a restraint or interstate commerce and in a
sense violates the Act. U. S. vs. DuPont, 188 Federal,
127. An indictment which charges that three distinct
packing concerns, each one of whom was authorized to
act for the others, and that such group acted for the three
concerns, is sufficiently specific. U. S. vs. Swift, 186
Federal, 1002; 188 Federal, 92.

The test of the legality of a combination under this Act
is its necessary effect upon competition; if its necessary
effect is only incidentally or indirectly to restrict the
competition while its chief result is to foster the trade
and increase the business of those who make and operate
it, it does not violate the law. United States vs. Standard
Oil Co., 173 Federal, 177. U. S. vs. McAndrews et ah.

140 Federal Criminal Law Procedure.

149 Federal, 823. "Open Price Plan" not violation. U.
S. vs. American, 275 F. 939.

In the Standard Oil case by the Supreme Court of the
United States, 221 U. S. p. 1, the old cases of U. S. vs.
Trans-Missouri Freight Association, 166 U. S. 290, and
U. S. vs. Joint Traffic Association, 171 U. S. 505, were
limited and qualified because they did not permit an in-
terpretation of each contract and agreement by the stand-
ard of reason. The Standard Oil case was followed by
the Supreme Court in United States vs. American To-
bacco Company, 221 U. S., 106.

42pp. Monopoly — Sherman Act — Clayton Act. — For
requisites of an information see U. S. vs. Wells, 225 Fed.
320; U. S. vs. Boumert, 179 Fed. 735; U. S. vs. Cowell,
243 Fed. 730.

A rule of business which appeals to the reason as being
legitimate competition is not a violation of the act, IT. S.
vs. Steel Co., 40 Sup. Ct. Rep. 293.

A conspiracy to violate the Sherman law is complete
though no overt act was committed, U. S. vs. Rintelen,
233 Fed. 793; see also U. S. vs. Bopp, 237 Fed. 283.

A peaceful strike is not a violation since the Clayton
Act takes agreements to strike out of Sec. 1, of the Sher-
man law, U. S. vs. Norris, 255 Fed. 423.

A monopoly agreement may be inferred from a course
of dealing, to fix prices, Frey vs. Cudahay, 41 Sup. Ct.
Rep. 451.

Agency is not a sale under the Clayton Act, Curtis Pub-
lishing Co. vs. Federal Trade Com., 270 Fed. 881.

It is not in violation of a monopoly act for a manufac-
turer to refuse to sell to any who will not agree to main-
tain prices, etc., U. S. vs. Colgate, 253 Fed. 522.

Combination of cement plants as formed was a viola-
tion, U. S. vs. Cowell, 243 Fed. 730; as was also a com-
bination of retail lumber dealers which used "customers
lists," U. S. vs. Hollis, 246 Fed. 611.

A sale contract such as is exhibited in Standard Fash-
ion Magazine, 254 Fed. 493, is a violation.

A trust which restricts sale of territory is a violation
of the Texas Statutes which is broader than the National

Practice Suggestions. 141

Statutes, but see discussion of Kissel vs. Walker, 270
Fed. 492.

An indictment under this section must be clear as such
clearness is denned in U. S. vs. Colgate, 250 U. S. 300.

The unlawful agreement is the essence of the offense
and it would not be right to hold unlawful the acts of
persons who being in the same business exchange views
and in good faith act the same way, U. S. vs. Piowaty,
251 Fed. 375.

See U. S. vs. King, 229 Fed. 275, for an indictment for
listing and black listing.

A corporation which was itself lawful would not there-
by become obnoxious to the Sherman Act by the appoint-
ment of an exclusive selling agent, American Slate Co.
vs. O'Halloran, 229 Fed. 77.

See also for strikes, boycotts and injunction, Duplex
vs. Deering, 252 Fed. 722.

For a discussion of the preservation of the monopolies,
rights and the patent and trade restrictions, see U. S. vs.
United Shoe Company, 264 Fed. 138.

§ 42-q. Verdict — Motion to Direct. — An exception to
a refusal to direct a verdict at the close of plaintiff's
case is waived if defendant thereafter proceeds to be put
in proof and the strength of plaintiff's case must then
be tested upon a new motion to direct a verdict after both
sides have rested on an examination of the entire record
made. Collins vs. U. S., 219 Federal, 671. Leyer vs. U.
S., 183 Federal, 102. When a motion to direct a- verdict
is not renewed at the conclusion of the defendant's tes-
timony, the objection to the failure of the Court to grant
the motion to direct, is waived. Gould vs. U. S., 209
Federal, 730. See Sections 16b and 25a.

A Federal Court will not review the verdict or the find-
ing of facts by a jury in the absence of a request to the
trial Court to instruct them in whose favor to find, on the
ground that evidence is so conclusive that no other ver-
dict can be sustained. Thompkins vs. M. K. & T., 211
Federal, 391.

Coercing of. — It is error for a court, after ascertaining
how a jury stands, to charge them that the case should be

142 Federal Criminal Law Procedure.

finally disposed of and that it is the second trial and that
there is no reason to believe that a more intelligent or
honest jury more likely to arrive at a verdict would be
drawn on another trial and that justice demanded that
the case be brought to an end; that the expense of trials
is great and that the government has a right to a verdict
without further expenditure of time and money and de-
fendants, if guilty, have a right to have that fact deter-
mined before they are bankrupt, and if innocent a right
to be acquitted before their means are exhausted. Peter-
son vs. U. S., 213 Federal, 920. Holding jury after they
say they cannot agree must be objected to by defendant
to be available in error. Campbell vs. U. S., 221 Federal,
186.

In Suslak vs. U. S., 213 Federal, 913, the Circuit Court
of Appeals for the Ninth Circuit, speaking through Judge
Dietriech, who also spoke for that same Court in the
Peterson case just above cited, held that it was not co-
ercing a verdict for the trial Court to tell them that the
case was important and costly both to the Government
and to the defendants, and that the jury must remember
that the witnesses were likely to disappear and could not
be had at another trial and that they should attempt to
agree on honest convictions; and though they had the
power under the law to stand out for acquittal or convic-
tion, no juror should do so arbitrarily but should listen to
the arguments of the other jurors and come to an under-
standing if he could, and be convinced by their argument ;
that it was wrong to convict as well as to acquit a man
on an arbtrary stand taken by a juror, and that they must
not consider the penalty in the case whatever. The lan-
guage, however, was said to be as strong as should ever
be used in impressing upon a jury their duty. See also
Allis vs. U. S., 155 U. S., 117; People vs. Miles, 143 CaL,
635; Jordan vs. State, 30 S..W., 445.

42qq. Verdict — Motion to Direct — Coercing Continu-
ed.—See Sees. 16, 16b, 25, 25a, 31, 429, 535.

A motion to direct a verdict, at the close of the govern-
ment's evidence, is waived by thereafter introducing evi-

Practice Suggestions. 143

dence, Robins vs. U. S., 262 Fed. 126; Grandi vs. U. S.,
262 Fed. 123.

A motion to direct may be made after all of the evi-
dence is in, Grandi vs. U. S., 262 Fed. 123, but unless this
procedure is taken the original motion is waived by the
introduction of testimony, Youngblood vs. U. S., 266 Fed.
795.

For the practice see Isabell vs. U. S., 227 Fed. 788;
U. S. vs. De Bolt, 253 Fed. 78.

The court has no right to tell the jury, "the trial is
costly and that he would hold them until Saturday night
to get a verdict," Hunter vs. Hunter, 187 S. W. 1049.

§ 42r. Writ of Error — Supersedeas. — Writs of error
are not exactly a right of the convicted but are granted in
all cases where assignments of error are filed and proper
application made therefor. Whether the judgment shall
be superseded is in the sound discretion of the Court
granting the writ or of some other Court that under the
law may take cognizance thereof. Judge Speer in the
case of U. S. vs. Gibson, 188 Federal, 396, refused a super-
sedeas and ordered the prisoners to the penitentiary.
The facts, however, in support of that procedure hardly
appeal to the profession for the reason that if proper
assignments of error had been filed and a writ of error in
good faith perfected, it hardly seems right that the pun-
ishment should be begun until the guilt has been finally
determined. It is in the power of the Court to fix a com-
mensurate bond pending such reivew and if a trial Court
should arbitrarily refuse a supersedeas, application should
be made to the Court of Appeals for the same circuit or
one of the Judges thereof, and unless the prosecution
could show to the Court that the record of the convicted
warranted a presumption that he would not abide the
judgment of the Appellate Court, a supersedeas should
be and in all probability would be granted.

A writ of error must be sued out and lodged in the
Court below within sixty days from the date of the judg-
ment. Roberts vs. Kendrick, 211 Federal, 970. And
when such writ of error is not so sued out and lodged, a

144 Federal Criminal Law Procedure.

supersedeas previously granted will be vacated and an-
nulled. Eoberts vs. Kendrick, 211 Federal, 1)70.

Direct to the Supreme Court. — A writ of error direct
to the Supreme Court from the trial Court may be taken
in certain cases. U. S. vs. Mixon et al., 235 U. S., 231;
U. S. vs. Patten, 226 U. S., 527. See also Judicial Code,
1911. Supreme Courts may grant certiorari in Criminal
Case when case is one of great gravity. Anderson vs.
Moyer, 193 Federal, 499.

Pauper has Right to. — By the Act of June 25, 1910, a
poor person may have an action reviewed by writ of error,
including all appellate proceedings, unless the trial Court
shall certify in writing that, in the opinion of the Court,
such appeal or writ of error is not taken in good faith,
without being required to prepay fees or costs or for the
printing of the record in the Appellate Court or give se-
curity therefor. The pauper shall file in Court a state-
ment under oath in writing that because of his poverty he
is unable to pay the costs of said suit or writ of error or
to give security for the same, and that he believes he is
entitled to the redress he seeks by such writ of error, etc.
Latham vs. U. S., 210 Federal, 159.

42rr. Writ of Error — Supersedeas — Pauper Continu-
ed.— For good cause shown a writ of error may be filed
after the expiration of the sixty days provided by the
rules. Freeman vs. U. S., 227 Fed. 732.

When a case is taken by a writ of error direct to the
Supreme Court it is there for all purposes. Goldman vs.
U. S., 245 U. S. 474.

A pauper may have his cause reviewed by writ of er-
ror when the proper orders are entered and for guidance
therein see the foregoing paragraph; also see Page 45,
Vol. 1, 1912 Supplement to Federal Statute Annotated,
and as to the printing Of the record see Meyer vs. U. S.,
218 Fed. 372.

It is suggested that an order should be entered showing
the defendant to be a poor person within the purview of
the act of Congress of Form 25, 1910, and that the de-
fendant be granted a writ of error to the United States
Circuit Court of Appeals, for the circuit, in forma

Practice Suggestions. 145

pauperis, and that he be relieved from paying any costs
or furnishing security, and that said writ of error be
returnable according to law; such order to be signed by
the District Judge.

§ 42s. Writing — Handwriting. — Because of the con-
fusion in appellate decisions, the Congress on Feb. 26,
1913, provided, "That in any proceedings before a Court
or judicial officer of the United States where the genuine-
ness of the handwriting of any person may be involved,
any admitted or proven handwriting of such person shall
be competent evidence as a basis for comparison by wit-
nesses or by the jury, court or officer conducting such
proceeding, to prove or disprove such genuineness." Of
course this statute does not attempt to place a value on
such testimony. After being admitted may be compared.
Short vs. U. S., 221 Federal, 248.

It is well settled that a writing cannot be introduced in
the cause for the mere purpose of enabling the jury to in-
stitute a comparison of handwriting, but where the writ-
ing had been admitted for some other purpose, then the
jury may rightfully institute a comparison. Williams vs.
Conger, *125 U. S., 397. Withamp vs. U. S., 127 Federal,
530.

In U. S. vs. North, 184 Federal, 152, Judge Wolverton,
after reviewing the authorities, says, "From these au-
thorities it would seem that it was not the purpose of the
Courts, where the writing was admitted in evidence for
some other purpose, to require that it must also have been
admitted by the defendant to be genuine, or treated by
him as such; but it is sufficient that it be satisfactorily
proven to be in the handwriting of the party against
whom it is sought to establish another writing, being an
issue in the case, which he disputes.

In other words, the American rule seems to be that
such papers can be offered in evidence to the jury, only
when no collateral issue can be raised concerning them,
which is only where the papers are conceded to be genu-
ine, or are such, as the party is estopped to deny, or are
papers belonging to the witness, who was himself pre-
viously acquainted with the party's handwriting, and he

146 Federal Criminal Law Procedure.

exhibits them in confirmation and explanation of his own
testimony. When a writing is offered for comparison,
its genuineness must be found as a preliminary fact by
the presiding judge upon clear and undoubted evidence
in order to avoid the danger of fraud and surprise and
the multiplication of collateral issues.

CHAPTER IV.

POSTAL CRIMES.

§ 43. Jurisdiction of State and Federal Courts.

44. Section 3833 as to Jurisdiction.

45. Breaking Into and Entering Post Office.

46. Unlawfully Entering Postal Car or Interfering With Postal

Clerk.

47. Assaulting Mail Carrier with Intent to Rob; Robbing Mail and

Injuring Letter Boxes or Mail Matter and Assaulting Carrier.
47a. Reasonable Doubt in Appellate Court.
47aa. Reasonable Doubt.
47b. Duplicitousness in Indictment Charging Robbery of Mail Clerk.

48. Obstructing Mail.

48a. Presumption as to Mail on Train.

49. Ferryman Delaying Mail.

50. Post Master or Other Employee Detaining or Destroying News-

papers.
50a. Conspiracy to Open Letters.

51. Post Master or Employee Detaining or Destroying or Embezzling

Letter; Decoy Letters — Proper and Improper Use of.

51a. Fact case; Indictment Under this Section.

51aa. Decoy Letters.

51b. Opening Mail.

51c. Injury to Letter Boxes, Etc.

52. Stealing, Secreting, Embezzling, etc. Mail Matter or Contents.
52a. Indictment Under this Section.

52a. Indictment Under Section 5470.
52aa. Mail Protected.

53. Obscene Matter, etc. non-mailable, and Penalties; Definition of

Filthy; Obscenity; Decoy Letter to Secure Evidence in Con-
ception Cases; Indictment and Other Decisions; Post Mark;
Effect of.

53a. Obscenity, Scurvilousness, Indecency, Knowledge, etc.

53b. Indictment Under this Section; Satisfying by Bill of Particu-
lars; Setting forth Whole Instrument.

53c. Matter Intended to Incite Arson, Murder or Assassination.

53d. Prize Fight Films— Such Film for One's Own Convenience; No
Violation; Pictorial Representation Included.

53dd. Paid Editorial, etc., to be Marked Advertisement; Statute re-
lates to Second Class Matter.

53ddd. Matter in Federal to Incite Arson, Murder or Assassination
Continued.

53dddd. Espionage Act.

53ddddd. Prize Fight, Film Act Constitutional.

(147)

148 Federal Criminal Law Procedure.

§ 54. Libelous and Indecent Wrappers and Envelopes; Unrestricted
Use of Post Office not Constitutional Right; Not Material
Whether Objectionable Language is True or False; What is
Outside Cover of Wrapper; Duns on Postal Cards.
54a. Libelous and Indecent Wrappers and Envelopes, etc.

55. Use of Mails for Fraudulent Purposes; Elements of Offense —

Actual Misrepresentation Unnecessary — When; Threatening
Letter; Matrimonial Agency; Ordering Goods Without Inten-
tion to Pay; Making False Financial Statement; Indictment,
Punishment and number of Counts; Other Like Offenses.

55a. Other Illustrative Cases under This Statute — Pretending to be
Eminent Physician.

55b. Illustrative Cases of Fraudulent Use of the Mail; Threats.

56. Civil Statute against Fraudulent Use of Mail.
56a. The Civil Statutes Continued.

i 57 Fraudulently Assuming Fictitious Address or Name.

58. Lottery; Gift Enterprise, Circulars, etc., not Mailable.

59. What Is a Lottery or Chance.
59a. Illustrative Cases of Chance.

60. Land Schemes.

60a. Land Schemes Continued.

61. Issuing Stock.

62. Other Cases Under the Lottery Statute.
62a. Other Cases Continued.

63. Post Masters not to be Lottery Agents.
64 False Returns to Increase Compensation.

65. Civil Remedy to Recover Compensation.
65a. Acquittance No Bar to Civil Suit.

66. Collection of Unlawful Postage.

67. Unlawful Pledging or Sale of Stamps.
67a. Receiving Stolen Property, etc.

68. Failure to Account for Postage and to Cancel Stamps.

69. Issuing Money Order Without Payment.

69a. Conviction Under One Statute, No Bar, — When.

70. Counterfeiting Money Orders, etc. and Fraudulently Issuing

the Same After Having Received the Money Therefor.

71. Counterfeiting Postage Stamps, Domestic or Foreign.

72. Misappropriation of Postal Funds or Property by Use of Failure

to Deposit.

73. Rural Carriers Responsible Under Foregoing Section.

74. Stealing Post Office Property.

75. Other Minor Offenses, Including False Claims and Employees

Contracts.

75a. Illegally Carrying Mail.

76. All Persons Employed in Service, Whether Taken Oath or Not,

Are Employees.

Postal Crimes. 149

§ 43. Postal Crimes.— The provisions of Section 3833
that give jurisdiction to all civil and criminal causes aris-
ing under the postal laws to state and territorial courts,
do not constitute such courts Federal Courts; and if
either a civil or a criminal cause be instituted in the
state courts involving the United States Postal Laws,
such cause may be removed to the Federal Courts, under
the second section of the Act of March 3, 1875. In the
case of New Orleans National Bank vs. Merchant, 18
Federal, page 841, which was a bill for injunction filed
in the state District Court against the United States Post-
master at New Orleans, seeking certain relief against
the enforcement of the sections of the Revised Statutes
relating to fraud orders, and which action was removed
into the Federal Court under the second section of the
Act of March 3, 1875, Circuit Judge Pardee held that
while Section 3833 of the Revised Statutes confers juris-
diction upon the Courts of the State in certain instances,
as Courts of the State, yet it does not thereby make them
Federal Courts, and cases instituted therein are properly
removable to the Federal Court.

§ 44. How Is the Section Used. — It would seem, there-
fore, that 3833 is reallv a section of convenience. Since
there are state justices of the peace and committing
magistrates at nearly all points, the state or Federal of-
ficer who discovers a violation of the postal laws may
instantly get a warrant therefrom without waiting to
communicate with the more remote and less accessible
Federal Commissioner. The accounts for the state jus-
tices of the peace and committing magistrate for serv-
ices of this sort are presented for approval in open
Court, just as United States Commissioners are, and are
paid by the Department at Washington.

§ 45. Breaking Into and Entering Post-Office. — We
now come to a consideration of the various sections of the
Criminal Code, starting with offenses against the postal
service and system, because they are the most common
violation. Section 5478 of the old statutes is altered very
little by Section 192 of the new Code. The words "hard
labor" are left out of the new statute, but under Section

150 Federal Criminal. Law Procedure.

338 of the new Code, the omission of the words ''hard
labor" from any provision of the new Code prescribed in
the punishment, is not construed as depriving the Court
of the power to impose hard labor as a part of the pun-
ishment in any case where such power existed under the
old statute.

The new Section also contains the following words,
"with intent to commit in such post-office or building, or
part thereof so used," that were not in the old statute.
These words were doubtless added by the codifiers to
call the attention of the pleader to the fact that Congress
had no jurisdiction to prescribe a penalty for entering a
building, or for committing an offense in a building, un-
less such building was actually used as a post-office or
such offense was committed in that part of said building
so used as such post-office.

In the 16 Federal, page 235, United States against
Campbell, the Court sustains a demurer to an indictment
which charged forcible breaking into a building, which
building was then and there used in part as a post-office
of the United States, "with the intent then and there, in
said building, to commit the crime of larceny." In pass-
ing upon the demurrer, the Court said that, "a building
used in part as a post-office may contain many rooms be-
sides the one or more used as a post-office. That there
is some portion of it not so used is necessarily implied in
the phrase 'used in part as a post-office.' To break into
such a building with the intent to steal the purse of the
lodger in a room therein that is in no way used as a post-
office, nor connected with it, except that it is under the
same roof, does not appear to me to be an act which the
United States may punish, upon the ground that it is
necessary to do so in the execution of the power granted
to Congress to establish apost-office." Mr. Justice Storey,
in United States vs. Coombs, 12 Peters, 76, said: "If the
section admits of two interpretations, one of which brings
it within, and the other presses it beyond, the constitu-
tional authority of Congress, it will become our duty to
adopt the former construction; because a presumption
never ought to be indulged that Congress meant to ex-

Postal Crimes. 151

ercise or usurp any unconstitutional authority, unless
that conclusion is forced upon the Court by language al-
together unambiguous. ' '

The idea, therefore, is that the statute meant to punish
the breaking into a building used in part as a post-office,
with the intent to commit larceny in that part of the
building so used as such post-office. To the same effect
is the case of in re Byron, 18 Federal, page 723; also
United States vs. Williams, 57 Fed., 201; also United
States vs. Shelton, 100 Fed., 831; United States vs. Mar-
tin, 140 Fed., 256; United States vs. Saunders, 77 Fed.,
170.

In the 30 Federal, 232, United States vs. Lantry, the
Court held that the prisoners were not entitled to the pre-
sumption that they had hidden themselves within the
building, merely because they had been seen with other
person lawfully within the premises before they were
closed for the night. In this same case, the Court refus-
ed, upon habeas corpus, to go beyond the finding of a
Commissioner, as to the probable guilt of the prisoners,
and followed the authorities of in re Fowler, 4 Fed., 303,
and in re Day, 27 Federal, 678.

The case of Considine vs. United States, which holds
that a violation of Section 5478 is a misdemeanor, and
not a felony, and, therefore, but three challenges are per-
mitted the defendant, will not now be considered binding
against defendants under the new Code, for the reason
that the punishment is felonious within the meaning of
such offenses as defined by Section 335 of the new Code.
Section 819 of the Revised Statutes allows the defendant
charged with a felony ten challenges; therefore, one be-
ing prosecuted under Section 192 would be entitled to
ten instead of three challenges.

The word "forcible" when used in a criminal statute
in describing night-time or day-time burglaries, compre-
hends the opening of a door or the raising of a window
or the raising of a latch, in fact, the use of any force in
making an entry. In 74 Federal, 221, United States vs.
Yennie, it was held that an entry into a postmaster's
room in the post-office building, by opening the door,

152 Federal Criminal Law Procedure.

was a forcible entry within the meaning of the statute.
This case is also interesting in that it determines that an
indictment is good, even though in the same count it
charges the forcible entry and the theft of the property,
and that while such allegations constitute separate of-
fenses under old Sections 5475 and 5478, yet they are
offenses of the same kind and the same grade of punish-
ment, though with different degrees of severity, and upon
the authority of Com. vs. Tuck., 20 Pick., 356, the Court
holds that both offenses relate to and are parts of the
same transaction, and may, therefore, be included in the
same count without error, though perhaps the best prac-
tice not to do so. See also Horner vs. United States, 143
U. S., 207; ex parte Peters, 12 Federal, 46.

Sorenson vs. United States, 143 Federal, 820, and Sor-
enson vs. United States, 168 Federal, 785, are cases aris-
ing under Section 5478, and which do not decide any
point with reference to the statute or an indictment there-
under. They contain, however, some interesting ques-
tions of practice with reference to circumstantial evi-
dence and other matters not necessary to here discuss.

§ 46. Unlawfully Entering Postal Car or Interfering
with Postal Clerk, Etc. — Closely akin to the statute just
discussed is Section 193 of the new Code, which inhibits
entering by violence a post-office car, or any apartment in
any car, steamboat, or vessel assigned to the use of the
mail service, and also denominates as an offense any wil-
ful or malicious assault or interference with any postal
clerk in the discharge of his duties in connection with
such car, steamboat, vessel or apartment, and also pun-
ishes any one who shall wilfully aid or assist in either.

Neither this section, nor the substance thereof, was
included in the old Revised Statutes. There was a pro-
vision largely similar passed by the Fifty-seventh Con-
gress, as shown at page 1176 of the 32 Statute at Large.
That provision has, however, been broadened by the
omission of some words and the substitution of others.

A close reading of the statute indicates that the au-
thorities that relate to entering a post-office or a building
used in part as such office, cited under the old statute

Postal Crimes. 153

5478 and under the new Section 192, would be in a large
measure applicable to this question.

§ 47. Assaulting Mail Carrier with Intent to Rob, and
Robbing Mail and Injuring Letter Boxes or Mail Matter,
and Assaulting Carrier, Etc.— Under this heading, for
convenience, is placed Sections 197 and 198 of the new
Code. Section 197 is a combination of the old Sections
5472 and 5473.

Section 198 comprehends the meat of old Sections 3869
and 5466. 3869 had already been amended by the Act
shown on page 1175 of the first part of Volume 32 of the
Statutes at Large, which was an act of the Fifty-seventh
Congress. The present section, as it now stands, is in-
tended to protect more certainly the numberless rural
route and star route boxes and mail receptacles.

It must be understood that no mail receptacle is pro-
tected under this statute, unless the same has been es-
tablished, approved, or designated by the Postmaster
General. The indictment should, therefore, allege such
approval, designation, and establishment, and the proof
must so show. As to just what sort of proof the Court
will admit, no inflexible rule can be given. The Courts
understand that it is impossible to bring the Postmaster
General or some informed subordinate from his office into
the various Districts of the Union, and testify to such
action at Washington, and they, therefore, sometimes ad-
mit the testimony of the local postmaster that the recep-
tacle is the proper one, or sometimes they admit the re-
ceptacle itself, which has stamped thereon the words de-
signated, established, or approved by the Postmaster
General. So also, some of the printed regulations of
the Post-office Department give the dimensions and styles
and description of the various receptacles, and these
are sometimes admitted. The books contain no partic-
ular line of precedents with respect to such proof.

Section 197 of the new Code, which is, as above stated,
a substitute for 5472 and 5473 of the old statute, elimi-
nates some of the uncertainties that were in the old stat-
utes, and as the new section now stands, it is easily un-
derstood. The following cases were interesting under

154 Federal Criminal- Law Procedure.

the old section: United States vs. Reeves, 38 Fed., 404,
which determined in line with the academic authorities,
the meaning of the words "dangerous weapon," the re-
sponsibility of one aiding or advising the offense, the
meaning of the words "attempt to rob," and the further
decision that the offense is committed where it is shown
that the mail or any part thereof is taken fraudulently
from the possession of the carrier, against his will, by
violence or putting him in fear. In Jeff Harrison vs.
United States, 163 U. S., 140, the only point decided was
that a violation of 5472 was a felony, and on the prose-
cution for which the defendant was entitled to ten per-
emptory challenges under Section 819. United States
vs. Hare, 2 Wharton Crim. Cases, 283, 26 Federal Cases,
148; U. S. vs. Wilson, 28 Federal Cases, 699; U. S. vs.
Bowman, 5 Pac. Rep. 333.

§ 47a. Reasonable Doubt in Appellate Court. — Mat-
thews vs. U. S., 192 Federal, 490, is a fact case under old
Section 5472, in which the Court of Appeals affirms a
judgment based upon circumstantial evidence and an-
nounces the rule that an Appellate Court need not be
satisfied beyond a reasonable doubt of the guilt of the
defendants in order to affirm.

47aa. Reasonable Doubt.

The reasonable doubt to which a defendant is entitled
extends to each element in the case, Spear vs. U. S. 228
Fed. 486, and the court cannot take the force of such
doubt away by a strong statement of the case, Oppen-
heim vs. U. S. 241 Fed. 626.

A reasonable doubt is a doubt for which a sensible
man could give good reason, based on evidence or want
of evidence, and is such a doubt as a sensible man would
act or decline to act upon, Sotello vs. U. S. 256 Fed. 721.

§ 476. Duplicitousness. — An indictment which charges
that the defendant attempted to rob the mail clerk and
put his life in jeopardy is not duplicitous. Price vs. U.
S., 218 Federal, 149. '"Magon vs. U. S., 260 Fed. 811,
holds that different counts are not a species of duplici-
tousness."

Postal Crimes. 155

§ 48. Obstructing the Mail.— Section 201 of the new
Code takes the place of Section 3995 of the old, and en-
larges the same by adding the words "car, steamboat,
or other conveyance or vessel," and changes the punish-
ment, which was, in the old statute, a fine of not more
than a hundred dollars, to a fine of not more than one
hundred dollars, or imprisonment for not more than six
months, or both. These changes, however, do not render
valueless the many cases arising under the old section.

In Salla vs. United States, 104 Fed., 544, the Court of
Appeals for the Ninth Circuit held that an indictment
charging defendants with conspiring "to unlawfully,
wilfully, maliciously, and knowingly" delay and ob-
struct, etc., the passage of a railway car and train,
"which said railway car and train were then and there
carrying and transporting the mails of the United
States," was insufficient to charge a violation of Section
3995, since it failed to charge that the defendants knew
that said car and train were carrying the mails. In other
words, the authorities are a unit upon the proposition that
the indictment must allege, and the proof must show, that
the defendants knew that the vehicle they obstructed
carried the United States mail.

By an Act of the Fifty-seventh Congress, second ses-
sion, page 1176 of the first part of Volume 32, Statute at
Large, Congress determined "that every special delivery
messenger, when actually engaged in carrying or de-
livering letters or other mail matter under contract, di-
rectly or indirectly, with the Post-office Department, or
employed by the Post-office Department," shall be deem-
ed a carrier or person intrusted with the mail, and having
custody thereof, within the meaning of certain Sections
of the Eevised Statutes, which included old Section 3995.

It has been directly decided that two or more may con-
spire to commit the offense of obstructing the mail, as
shown in Conrad vs. United States, 127 Fed., 798. Other
interesting cases bearing upon the old section are the fol-
lowing: United States vs. Kirby, 74 U. S.; 19 Law Ed.,
278, and see also note; in re Debs, 158 U. S., 564; Clune vs
United States, 159 U. S., 590; United States vs. Cassidy',

156 Federal Criminal Law Procedurk.

67 Fed., 698; United States vs. Thomas, 55 Fed., 380;
United States vs. Sears, 55 Fed., 268; United States vs.
Woodward, 44 Fed., 592; United States vs. Kane, 19
Fed., 42; United States vs. Claypool, 14 Fed., 127; United
States vs. De Mott, 3 Federal, 478.

An officer in possession of a civil warrant against a
mail carrier is not justified in arresting the mail carrier,
though the carrier be not detained longer than necessary
for the execution of the warrant. United States vs. Har-
vey, 8 Law Rep., 77. In United States vs. Barney, 3 Am.
Law Journal, 128, the Court held in substance that the
law did not allow any justification of a wilful and volun-
tary act of obstruction to the passage of the mail, such
as the seizure by its lawful owner of a stolen horse
found in a mail stage, or the arrest of its driver for debt.
On the other hand, in United States vs. Hart, Pet. C. C,
390; S. C. 3 Wheeler's Criminal Case, 304, the Court
held that the Act was not to be so construed as to pre-
vent the arrest of the driver of a carriage transporting
the mail when he was driving through a crowed city at
such a rate as to injure the lives of the inhabitants. So
also, it is understood that mere service of process on a
mail carrier, without detaining him, is not an obstruc-
tion of the mail. United States vs. Harvev, 8 Law Rep.,
77.

It seems, however, to be settled that while a mail car-
rier is not liable to arrest upon civil process — that he is
liable to arrest on a charge of any criminal offense, as a
violation of the law against the sale of liquor. Penny
vs. Walker, 64 Maine, 430; S. C. 18 American Rep., 269.

The safest practice, however, in view of the public
interest in the speeding of mails, is for the officer to make
the arrest after the carrier has delivered his charge,
which is not at all difficult to accomplish.

§ 4:8a. Presumption as to Mail on Train. — Judge
Speer decided the case of U. S. vs. Hall, 206 Federal,
485, and held that every passenger train must be pre-
sumed to be a carrier of United States mail and that
therefore an allegation of knowledge was unnecessary in
an indictment under Section 201. The learned judge

Postal Crimes. 157

cities no authorities in support of his decision. It is not
believed that such a presumption will be allowed in the
criminal law. The stopping of a train, the chastising of
the engineer of a train or the infliction of bodily punish-
ment upon the members, of the crew of a train without
any thought of delaying the United States mail which
might or might not be on such a train, would certainly
not be an offense within the jurisdiction of the United
States Courts. There must be an allegation that the de-
fendant knew that the carriage thus delayed was con-
veying United States mail and it is thought that Salla
vs. U. S. 104 Federal, 544, correctly states the rule, that
is if there be no allegation that the defendants knew that
the car and train were carrying the mails, the indict-
ment is defective.

§ 49. Ferryman Delaying the Mail.— Section 202 dif-
fers little from the old statute 3996, and reads as follows:

"Whoever, being a ferryman, shall delay the passage of the mail
by wilful negligence or refusal to transport the same across any
ferry, shall be fined not more than one hundred dollars."

The penalty of the old statute was ten dollars, and re-
quired that a delay should be for ten minutes, but the
new section evidentlv means any delav that is wilful.

§ 50. Postmaster or Other Employee Detaining or
Destroying Newspapers. — Section 196 of the new Code,
which reads as follows:

"Whoever, being a postmaster or other person employed in any de-
partment of the postal service, shall improperly detain, delay, embezzle,
or destroy any newspaper, or permit any other person to detain, delay,
embezzle, or destroy the same, or open, or permit any other person to
open, any mail or package of newspapers not directed to the office
where he is employed; or whoever shall open, embezzle, or destroy
any mail or package of newspapers not being directed to him, and
he not authorized to open or receive the same; or whoever shall
take or steal any mail or package of newspapers from any post-office
or from any person having custody thereof, shall be fined not more
than one hundred dollars, or imprisoned not more than one year, or
both."

replaced Section 5471 of the old statutes, and contains
practically nothing new except that the wording is
changed somewhat, and the punishment is enlarged.

158 Federal Criminal Law Procedure.

For some reasons tliere were few prosecutions under
5471, and so far as reported decisions are concerned, the
books contain none. Ex parte Friday, in 43 Federal,
page 920, cited by some annotations, really does not bear
upon the section other than to cite it as an instance of the
power of a Court to impose hard labor, even though th^
term be less than one year. In State vs. Nichols, 50 Louis-
iana Ann., 699, the statute is cited.

At page 512 of the First Volume of the Supplement,
being an Act of the Forty-ninth Congress, which applies
alike to all of the statutes relating to offenses against the
postal service, committed by persons employed therein in
connection with the immediate delivery service, whether
temporarily or permanently, or whether under oath or
not : —

"That any person employed to make immediate delivery of letters
or other mail matter under the provisions of this Act, or the Act of
which the same is amendatory, shall be deemed an employee of th^
postal service, whether he may have been sworn or not, or tempora-
rily or permanently employed, and as such employee shall be liable to
any penalties or punishment provided by law for the improper detent-
ion, delay, secretion, rifling, embezzlement, purloining, or destruction
of any letter or other article of mail matter, or the contents thereof, en-
trusted to him for delivery, or placed in his custody."

50a. Conspiracy to Open Anothers mail. Kirkwood
vs. U. S. 256 Fed. 825.

§ 51. Postmaster or Employee of Service Detaining or
Destroying Embezzling Letter, Etc. — Section 195 of the
new Code, which reads as follows:

"Whoever, being a postmaster or other person employed in any
department of the postal service, shall unlawfully detain, delay, or
open any letter, postal card, package, bag, or mail entrusted to him
or which shall come into his possession, and which was intended to
be conveyed by mail or carried or delivered by any carrier, messenger,
agent, or other person employed in any department of the postal
service, or forwarded through or delivered from any post office or
station thereof established by authority of the Postmaster General;
or shall secrete, embezzle, or destroy any such letter, postal card,
package, bag, or mail; or shall steal, abstract, or remove from any
such letter, package, bag, or mail, any article or thing contained
therein, shall be fined not more than five hundred dollars, or imprison-
ed not more than five years, or both."

Postal. Crimes. 159

takes the place of Sections 3890, 3891, and 5467 of the
old statutes. The new law, as above quoted, does not
contain the inhibition against the holding of office by a
postmaster who unlawfully detains letters or mail mat-
ter, but largely increases the punishment. The three old
sections were a source of considerable confusion, and with
the making of the new section, which plainly states, in
commensurate words, the elements of the offenses therein
included, this will be largely removed.

The system of postal supervision and preservation by
and through efficient Inspectors, ofttimes makes it nec-
essary to use what have been termed "decoy" letters.
A series of thefts may be reported at a certain office,
and by a process of elimination the Inspectors conclude
that the thefts occur during a certain watch. There may
be more than one man upon this watch, and it is entire-
ly unjust to suspect all of them. Decoys are, therefore,
used. These decoy letters are sometimes called "test"
letters. The question arose as to whether or not such
letters could be the subject of the offense described and
punished by 5467, and the other articles akin thereto.
It is now settled, beyond dispute, that such letters may
be the subject of the offenses defined. In Hall vs. United
States, 168 U. S., 631; 42 Law Ed., 607, the point was
raised as follows, which is taken from that case:

"The evidence showed that the Government detectives prepared
a special delivery letter designed as a test or decoy letter, containing
marked bills, and delivered it, bearing a special delivery stamp, to the
nght-clerk in charge of Branch Station 'F' of the post-office. The
defendant was not a letter carrier, but a clerk employed at that
office, whose duty it was to take charge of special delivery letters,
enter them in a book for that purpose, and then place them in course
of transmission. The letter in question was addressed to Mrs. Susan
Metcalf, a fictitious person, 346 East Twenty-fourth Street, New York
City, a fictitious number. The letter was placed by the night clerk
with other letters upon the table, where such letters were usually
placed, and the defendant, entering the office not long after, took this
letter, along with the others on the same table, removed them to his
desk, and properly entered the other letters, but did not enter this letter.
On leaving the office, not long after, the omission to enter the letter
having been observed, he was arrested, and the money contents of the
letter, marked and identified by the officers, were found upon his per-

160 Federal, Criminal Law Procedure.

son. The officers testified upon cross examination that the address
was a fictitious one; that the letter was designed as a test letter,
and that they did not intend that the letter should be delivered to Mrs.
Susan Metcalf, or that address, and that it could not be delivered to
that person at that address.''

Upon this state of facts, the Supreme Court held that
the facts stated an offense, and the evidence was entire-
ly sufficient to sustain the conviction upon the latter part
of Section 5467, which did not include the words "in-
tended to be conveyed by mail." The Court cites Good
vs. United States, 159 U. S., 663; 40 Law Ed., 297; Mont-
gomery vs. United States, 162 U. S., 410; 40 Law Ed.,
1020.

I have spoken in a preceding paragraph of the use of
decoy letters by government inspectors and the approval
of such use by the Courts as expressed in Hall vs. U. S.
Judge Bourquin draws a distinction in United States
vs. Healy, 202 Federal, 349, between the proper and the
improper use of the decoy. Such distinction is most
pleasing since everyone dislikes to approve any course on
the part of the official which appears to be overreaching
or which suggests to the weak an easy way to get money
or something of value. In the Healy case it was said
that decoys are permissible to entrap criminals or to
present opportunity to those having intent to or who are
willing to commit crime, but not to create criminals, or
to ensnare the law abiding into committing an offense
without an intent to do so. Where a statute makes an
act a crime regardless of the actor's intent or knowl-
edge, ignorance of fact is no excuse if the act is done
voluntarily; but if done on solicitation by the govern-
ment's instrument to that end, ignorance of fact shows
the act to have been involuntary and estops the govern-
ment from claiming a conviction.

The observations in that case were based upon facts
which showed that the government's decoy claimed that
he was not an Indian when as a matter of fact he was,
and upon his representation that he was not an Indian
the defendant acted and sold him spirituous liquors.
The court, of its own motion, set aside the conviction.

Postal Crimes. 161

It will be observed that the new statute uses the word
"such," which means, beyond any question of a doubt,
a letter, postal-card, package, bag, or mail, which was
intended to be conveyed by mail, or carried or delivered
by a carrier, messenger, agent, or other person employed
in a Department of the postal service, or forwarded
through, or delivered from, any post-office or station. If,
therefore, the testimony of the Government Inspector
should disclose that he did not intend that the decoy or
test should be carried or delivered or conveyed by mail,
or forwarded through, or delivered from, any post-office,
then and in that event, the new section would not be suf-
ficiently broad to prosecute an employee who stole a de-
coy or test letter. Hall vs. U. S., 168 U. S., 631. The
last portion of the old statute 5467 made it an offense for
any such person, to wit, employee, to take any of the
things mentioned therein out of any letter, packet, bag,
or mail which had come into his possession as such em-
ployee; which is vastly different in its broadness from
the present statute.

The case of Ennis vs. United States, 154 Federal, 842,
decides that a piece of mail matter which had been set
aside by a dishonest employee to be later taken, and
which was discovered by an inspector, and taken to the
addressee, from whom the inspector secured permission
to open the packet, and thereupon marked certain bills,
and placed them in the said packet, and then returned
the packet, where the employee had left it, such em-
ployee afterwards taking the packet: held, that the
packet, at the time it was returned by the Inspector, had
not ceased to be mail matter, and that the defendant
was, therefore, properly convicted of embezzling the
same, in support of which the Court cites Scott vs. United
States, 172 U. S., 343; 43 Law Ed., 471, and also ar-
gues that a letter delivered to the wrong address, and re-
mailed with the canceled stamp thereon, if stolen after
being re-mailed, would appear to be an offense under
the section. In the case of Bromberger vs. United States,
128 Federal, 346, the Court held that a letter properly
stamped, with the receiving stamp of the office thereon,
ll

102 Federal Criminal Law Procedure.

and placed in a carrier's pigeon hole at a postal station,
with other letters addressed to a real person on his route
;s "intended to be conveyed by mail," and its abstrac-
tion by the carrier, and the taking of the money there-
from constitutes an offense under 5467, although it was
placed there by postal inspector for the purpose of test-
ing the carrier's honesty.

The difference between the Bromberger case and the
TTall case is, that the test or decoy in the Bromberger
case was addressed to an actual person, and was intended
for delivery to such person, while in the Hall case, it
was a fictitious address, and no such delivery could be
made. Under the new statute, therefore, the indictment
must allege, and the proof must show, that the matter
was intended to be conveyed by mail, or carried or de-
livered by a carrier, messenger, agent, or other person
employed in a Department of the Postal Service, or for-
warded through or delivered from any post-office or
station thereof, established by authority of the Postmas-
ter General, and if the decoy or test be to a fictitious
person, at an address where the delivery cannot be
made, it would not, under the new statute, be an offense.

Under the authority of Shaw vs. United States, in 165
Federal, page 174, the indictment must allege lawful
possession, but under the authorities of United States vs.
Trasp, 127 Federal, 471, and Bowers vs. United States,
148 Federal, 379, and United States vs. Falkenhainer,
21 Federal, 624, it is not necessary to allege the owner-
ship of the packet. The employee, under the present
section, whether he be postmaster or other person, can
offend against the new law only when he is such em-
ployee, has mail entrusted to him, or has mail in his pos-
session when the same was to be conveyed and delivered
as hereinbefore shown. So, too, it will be noticed that
the new section makes it an offense to secrete, embezzle,
or destroy any such letter, postal card, package, bag, or
mail, and also makes it an offense to steal, abstract, or
remove from any such package, bag, or mail, any article
or thing therein, and does not make use of the word
'value." In other words, any article, whether of value

Postal Crimes. 163

or not, and any letter or packet, whether it has any ar-
ticle in it or not, under this new section, is protected by
its provisions, and it is thought that this broadness
comes by reason of its comprehending the elements of
3890 and 3891, as well as those of 5467. Other cases bear-
ing upon these three sections are Alexis vs. United
States, 129 Federal, 60; Chitwood vs. United States, 153
Federal, 551; United States vs. Kerr, 159 Federal, 185;
United States vs. Wilson, 44 Federal, 59.3; United States
vs. Lacher, 134 U. S., 624; United States vs. Delany, 55
Federal, 475; United States vs. Gruver, 35 Federal, 59;
United States vs. Byrne, 44 Federal, 188; Walster vs.
United States, 42 Federal, 891; United States vs. Mat-
thews, 35 Federal, 890; Eosencrans vs. United States,
165 U. S., 257; in re Wight, 134 U. S., 136; U. S. vs. Tay-
lor, 37 Federal, 200; Jones vs. United States, 27 Federal,
447; U. S. vs. Hamilton, 9 Federal, 442; Scott vs. United
States, 172 U. S., 343.

§ 51a. For a fact case under Section 195, see Wel-
sing vs. United States, 218 Federal, 369.

An indictment under this Section need not describe
the article contained in the mail package with the same
particularity as in a prosecution for forgery or lar-
ceny, but the article must be stated and sufficiently de-
scribed so as to apprise the defendant of the charge
against him and so as to protect him against a second
prosecution for the same offense. An indictment which
charged that a letter contained "articles of value" to
wit, "$12 in money of the IT. S." was, sufficient under
this statute to charge an offense. Shaw vs.'U. S., 180
Federal, 348. An offense under this Section may be
prosecuted in either the district where article "re-
moved" or the one into which the article is taken with
the evil intent. Perara vs. U. S., 221 Federal, 213.

51aa. Decoy Letters.

A "test" letter is protected even though the inspector
testified that he intended to withdraw it, McShann vs.
U. S. 231 Fed. 923.

See also Hanish vs. U. S. 227 Fed. 584, and see Sec.
51.

184 Federal Criminal Law Procedure.

51b. Opening Mail Unauthorized.
The Act of June 15, 1917, reinacted that provision of
the statute which reads as follows: —

"Except dead letter office or with a search warrant," no one is author-
ized to open a letter."

51c. Injury to Letter Boxes, etc.,

Sec. 198 of the Code, see Penal Code herein, was
amended by the Act of May 18, 1916, so as to include the
following: —

"That whosoever shall wilfully or maliciously injure, tear down, or
destroy any letter boxes or other receptacle intended or used for the
receipt or delivery of mail on any mail route or shall break open the
same or shall wilfully or maliciously injure, defraud" or destroy any
mail deposited therein,"

shall be fined not more than a thousand dollars or by
three years imprisonment.

This act together with the decisions of the Supreme
Court in Rosen vs. U. S. 245 U. S. 467, gives complete
protection to mail until it actually reaches the ad-
dressee and tends to overturn the case of U. S. vs. Lee
90 Fed. 256, cited under Sec. 52.

See also the case of U. S. vs. Lophansky, 232 Fed. 297,
which holds that one commits no federal offense by tak-
ing mail that was left "on" the mail box.

Mail is property and the Postoffice Department has
full power to protect it, Packas vs. U. S. 240 Fed. 350.

By Sec. 194 of the Postmaster General's regulations
it is provided that any receptacle intended for mail is
protected by the federal law.

§ 52. Stealing, Secreting, Embezzling, Etc., Mail
Matter or Contents.— Section 194 of the new Code is in
substitution of Sections 3892 and 5469 and 5470 of the
Code of 1878, and by the wideness or latitude of punish-
ment and generality of its phraseology, includes all of
the offenses enumerated in the old sections. 3892 was
limited originally to the taking of mail for the purpose
of prying into the business or secrets of another, and
5469 originally was for the taking of mail matter by
theft or other unlawful method by any person not em-
ployed in the postal service. It is only by being famil-
iar with Section 5467 and 3891 and 3890, as heretofore

Postal Crimes. 165

treated, that we conclude that 5469 related to persons
other than postal employees. Under the terms of Sec-
tion 194, as it now reads, one who, by misrepresentation
or pretense, secures from a post-office mail directed and
intended for another, is liable to the penalties of that
section. For instance, one who calls for the mail of
another, representing that he has authority to receive
the same, and thereafter commits unlawful act with the
mail, is subject to the penalty. The authorities cited
supra in the construction of Section 195 are applicable to
decoy and test letters under 5469 of the old statute or
194 of the new statute. The authority of the United
States vs. Meyers, 142 Federal, 907, with reference to
5469, seems to be applicable to the needs of an indict-
ment and proof under new Section 194. The indictment
must allege that the stealing, taking, or obtaining by
fraud of any letter or other mail matter and the embez-
zlement of the same or its contents must be either
fraudulent or unlawful, and an indictment which leaves
this open to inference is defective. Thus, an indictment
which by inference may allow the letter charged to have
been taken to have been delivered to and received by the
defendant through a mutual mistake, is insufficient.
Mail matter that has been delivered by the Postal De-
partment to its address thereby passes from the protec-
tion of the Federal Government. A letter addressed to
John Smith, in care of Jones, and delivered to Jones,
and thereafter stolen or embezzled or treated unlawfully,
cannot be made the subject of the above article. It must
still be in the custody of the Post-office Department be-
fore one can be prosecuted under the Federal statutes
for an unauthorized and unlawful act with reference
thereto. Thus, a letter delivered by the Post-office De-
partment to the desk of the addressee, upon which it
was placed by the mail carrier in the absence of any one
to receive it, is not protected by any Federal statute. In
United States vs. Safford, 66 Federal, 942, one was ar-
rested upon an information charging him with embez-
zling a letter containing an article of value, which had
been in the United States Post-office at St. Louis and

166 Federal, Criminal Law Procedure.

had not been delivered to the person addressed, but that
the letter had been placed by the mail carrier upon the
desk of the addressee, from whence it was stolen by the
defendant. The Court held that Congress only intended
to secure the sanctity of the mail while it was in the
custody of the Postal Department en route from the
sender to the person to whom it was directed. Beyond
the protection of the mail while discharging the func-
tions of postal service with respect to it, the Federal
Government has no rightful power or legal concern.

Thus, a letter directed to a person, care Kimball House,
when delivered by a carrier at the office of the Kimball
House, is delivered to the person to whom it was ad-
dressed, within the meaning of the law; and the duty of
the postal authorities with respect to such letter hav-
ing been full performed in accordance with the direction
of the sender, a subsequent wrongful taking of such letter
by another is not an offense under said section, nor one
cognizable by the Courts of the United States. United
States vs. Lee, 90 Federal, 256. See also U. S. vs. Mc-
Cready, 11 Federal, 225.

It is not thought that United States vs. Hilbury, re-
ported in 29 Federal, 705, is good authority. The judge
in that case charged the jury in substance that a letter
in care of F. Kressel, directed to A, and delivered by the
mail carrier to Kressel, and taken by an authorized per-
son from Kressel after such delivery, was a violation of
3892. Clearly, the letter had been delivered, so far as
the Postal Department was concerned, and the protec-
tion and custody and jurisdiction of the United States
had ceased. The entire weight of authority is against
the decision in 29 Federal, just above cited, and the fol-
lowing decisions support the doctrine of 66 and 90 Fed-
eral, cited supra: — United States vs. Persons, 2 Blatchf.,
104; United States vs. Driscoll, 1 Lowell, 303; U. S. vs.
Sander, 6 McClain, 598; U. S. vs. Thomas, 28 Federal
Cases 16471; U. S. vs. Huilsman, 94 Federal, 486; U. S.
vs. McCready, cited supra, 11 Federal, 225, must be dis-
tinguished from the weight of authority, and it is thought
that the learned judge there used expressions ill ad-

Postal Crimes. 167

visedly that seem to support the decision in the 29 Fed-
eral.

It must also be borne in mind that one who secures
lawfully from the Postal Department a letter belonging
to an other, and who thereafter forms the design to com-
mit an unauthorized act, as denned by the statute, with
reference thereto, is not amenable to the Federal statute.
It is true that the intent is usually presumed from the act
itself, Reynolds vs. U. S., 98 U. S., 145, but if it could be
clearly shown that the original taking was lawful and
thereafter the unlawful design was formed, the Federal
offense would be incomplete. United States vs. Smith,
11 Utah, 433; United States vs. Wilson, 44 Federal, 593;
United States vs. Inabnet, 41 Federal, 130. This intent
should be left to the jury by proper charge, not only when
raised by the evidence of the defense, but upon the Gov-
ernment's case itself; in other words, it is a part of the
facts that must be proven by the Government, inferred
though it may be by the jury from the facts of the case.

Section 194, as now enacted, reads as follows:

Whoever shall steal, take, or abstract, or by fraud or deception
obtain, from or out of any mail, postoffice, or station thereof, or other
authorized depository for mail matter, or from a letter or mail carrier,
any letter, postal-card, package, bag, or mail, or shall abstract or re-
move from any such letter, package, bag, or mail, any article or thing
contained therein, or shall secrete, embezzle, or destroy any such
letter, postal-card, package, bag, or mail, or any article or thing con-
tained therein; or whoever shall buy, receive, or conceal, or aid in
buying, receiving, or concealing, or shall unlawfully have in his posses-
sion, any letter, postal-card, package, bag, or mail, or ony article or
thing contained therein, which has been so stolen, taken, embezzled, or
abstracted, as herein described, knowing the same to have been so
stolen, taken, embezzled, or abstracted; or whoever shall take any let-
ter, postal card, or package, out of any post-office or station thereof, or
out of any authorized depository for mail matter, or from any letter
or mail carrier, or which has been in ony post-office or station there-
of, or other authorized depository, or in the custody of any letter or
mail carrier, before it has been delivered to the person to whom it
was directed, with a design to obstruct the correspondence, or try to
pry into the business or secrets of another, or shall open, secrete, em-
bezzle, or destroy the same, shall be fined not more than two thousand
dollars, or imprisoned not more than five years, or both."

168 Federal Criminal Law Procedure.

The following cases may be of interest relating to the
original three sections that this section is substituted
for: — United States vs. Trosper, 127 Federal, 476; Brown
vs. United States, 148 Federal, 379; United States vs.
Jones, 80 Federal, 513; United States vs. Hall, 76 Fed-
eral, 566; United States vs. Thomas, 69 Federal, 588;
Grimm vs. United States, 156 U. S., 604; Goode vs. United
States, 159 U. S., 663; Montgomery vs. United States, 162
U. S., 400; Hall vs. United States, 168 U. S., 632; Scott vs.
United States, 172 U. S., 343; United States vs. Dorsey, 40
Federal, 752; Walster vs. United States, 42 Federal, 891;
United States vs. Wilson, 44 Federal, 593.

It will be noticed that the new section leaves out the
word "value" with reference to any article so contained
in the mail matter. It simply uses the word "article"
without stating that the same shall be of value, as did
the old law.

§ 52a. An indictment under Section 5470, which is a
part of new Section 194, which alleges that the defend-
ant did wilfully, etc., receive from a certain described
bank notes of a specified value, which had been knowing-
ly, etc., stolen from the mails and that the defendant, at
the time and place of receiving and concealing, etc., knew
the same to have been unlawfully and feloniously stolen
and carried away from the mails of the United States,
imported that the concealment by defendant was done
with an unlawful intention and was therefore not ob-
jectionable for failure to charge the intent or the name
of the owner. Thompson vs. U. S., 202 Federal, 401.

52aa. Mail Protected.

Eosen vs. U. S., 245 U. S., 467; U. S. vs. Lophansky,
232 F. 297; Pakas vs. U. S., 240 F. 350.

§ 53. Obscene, Etc., Matter, Non-mailable, and Pen-
alties.— Section 211 of the new Code reads as follows:

"Every obscene, lewd, or lascivious, and every filthy book, pamphlet,
picture, paper, letter, writing, print, or other publication of an inde-
cent character, and every article or thing designed, adapted, or in-
tended for preventing conception or producing abortion, or for any
indecent or immoral use; and every article, instrument, substance,
drug, medicine, or thing which is advertised or described in a man-

Postal Crimes. 169

ner calculated to lead another to use or apply it for preventing con-
ception or producing abortion, or for any indecent or immoral pur-
pose; and ever written or printed card, letter, circular, book, pam-
phlet, advertisement, or notice of any kind giving information directly
or indirectly where, or how, or from whom, or by what means any
of the hereinbefore-mentioned matters, articles or things may be ob-
tained or made, or where or by whom any act or operaton of any
kind for the procuring or producing of abortion will be done or per-
formed, or how or by what means conception may be prevented or
abortion produced whether sealed or unsealed, and every letter, packet,
or package, or other mail matter containing any filthy, vile or indecent
thing, device, or substance; and every paper, writing, advertisement,
or representation that any article, instrument, substance, drug, medi-
cine or any thing may, or can be, used or applied for preventing con-
ception or producing abortion, or for any indecent or immoral purpose,
and every description calculated to induce or incite a person to so
use or apply any such article, instrument, substance, drug, medicine, ot
thing, is hereby declared to be nonmailable matter and shall not be
conveyed in the mails or delivered from any post-office or by any
letter carrier. Whoever shall knowingly deposit, or cause to be de-
posited for mailing or delivery, anything declared by this section to
be non-mailable, or shall knowingly take, or cause the same to be
taken from the mails, for the purpose of circulating or disposing there-
of, or of aiding in the circulation of disposition thereof, shall be fined
not more than five thousand dollars, or imprisoned not more than
five years, or both."

This takes the place of 3893 of the old statute. It con-
tains one word, the exact limits and meaning of which
when used in criminal law, do not seem to be well defined
by any line of decisions. The word "filthy," as used in
the new section, has never before been used in 3893 or
any of its predecessors. The Century Dictionary defines
filthy to mean, foul, dirty, nasty, polluted, low, con-
temptible, mean, and gives as synonyms, impure, cor-
rupt, gross. In Reg. vs. Wood, 5 El. and Bl., 49, 85 E.
C. L., 49, shows what was held not to be filthy. In United
States against Benedict, 165 Federal, page 222, the Court
said that the present statute, (that is, 3893), did not pro-
tect against "offensive, filthy, and vulgar language,"
when conveyed by a sealed wrapper, unless the language
will have, or may have, an immoral effect in a sense related
to sexual impurity upon those into whose hands the writ-
ten language may come. The Courts all along have al-

170 Federal Criminal Law Procedure.

most universally construed Section 3893 to be directed
against such impurity as related to sexual matters and
gave rise to libidinous thought. If the addition of the
word "filthy" in the new statute broadens the construc-
tion, it will be welcome indeed, because under the pres-
ent authorities, the old section permitted a perfect sluice
of vulgarities and coarseness and obscenity to pass
through the United States mails unchallenged and un-
prosecuted. For instance, the courts have held that the
use of the word "son-of-a-bitch" in a sealed envelope
is not an offense. It would seem that under the diction-
ary definition of the word filthy, as quoted above, the
law would now comprehend the use of the word "bitch"
and the phrase "son-of-a-bitch" and "whore" "prosti-
tute" and a great many others that are used in an abu-
sive way toward the recipient of the mail. This, how-
ever, remains to be seen, and the construction of the
new statute will be welcomed if it now inhibits the use
of such expressions.

The use of the word "filthy" in the statute imports
that Congress intended to prohibit a class of offenses
that the Courts had failed to pronounce unlawful under
the old section. U. S. vs. Dempsey, 188 Federal, 450.
and this question should be submitted to the jury.

The term filthy added to the statute may be properly
defined as nasty, dirty, vulgar, indecent, offensive to the
moral sense, morally depraving and debasing, and after
such definition the final determination is with the jury.
Tyomies Publishing Co. vs. U. S., 211 Federal, 386.
An indictment under 211 must surely be as certain in
its allegations as the decisions demanded under 3893,
and must therefore, allege that the defendant knowinar-
ly deposited or caused to be deposited, and the best prac-
tice would seem to be to allege that he so deposited or
caused to be deposited with knowledge of the contents
or import of the writing or printing, as the case may be.
Such allegation is not specially required under the au-
thority of Price vs. United States, 165 U. S., page 308;
41 Law. Ed., page 727, but it is decidedly the best plead-
ing. Rosen vs. United States, 161 U. S., 29; 40 Law Ed.,

Postal Crimes. 171

606. The mailing of obscene matter in answer to decoy
requests, such requests being made by postal inspectors
for the purpose of fixing absolutely the guilt of the send-
er or of an advertiser, are in violation of the statute,
and may be the basis of prosecutions. Price against
United States, cited supra, and Rosen vs. United States,
cited supra; Shepherd vs. United States, 160 Federal,
page 584. The indictment must also allege that the mat-
ter is non-mailable. United States vs. Clifford, 104 Fed-
eral, 296, but the indictment need not set out the obscene
matter. An allegation that the matter is too obscene,
lewd, and lascivious to be set out and made a part of the
records of the Court will satisfy the statute. 105 Fed-
eral, page 59; Tubbs vs. United States, 94 Federal, 356;
and the Rosen and Price cases cited supra.

The old question as to whether a private sealed letter
came within the meaning of the statute was definitely
settled by the Supreme Court in the case of Grimm vs.
United States 156 U. S., 604, which was followed by
Andrews vs. United States, 162 U. S., 420, which dis-
tinctlv held that the mailing of a private sealed letter
containing obscene matter, on the envelope of which
nothing appeared except the name and address, was an
offense within the meaning of the statute.

Recurring again to the sort of obscenity at which the
statute is directed, we find the case of United States vs.
Lamkin. 73 Federal, 459, where it was held that the
statute did not punish for the mailing of a letter which
was written for the purpose of seduction or to obtain
a meeting for an immoral purpose, provided such letter
was free from lewd, and indecent language, expressions,
or words. This case seems to be in conflict with the
great weight of authority, and with the spirit of the
statute. Assignations attempted to be made through the
United States mail, however chaste the language, are in
direct violation of the statute. United States vs. Mar-
tin, 50 Federal Rep., 918. In the Martin case, a letter
from a man to an unmarried woman, proposing a clan-
destine trip to a neighboring town and a return the next
morning, the man to pay expenses and five dollars be-

172 Federal Criminal Law Procedure.

sides, was held to be an obscene letter within the mean-
ing of the Act. In line with the Martin case, seems to
be the case of Dunlop vs. United States, 165 U. S., 486,
in which it was held that newspaper advertisements giv-
ing information where courtesans could be found, came
within the Act, although such advertisements were
couched in the most chaste and elegant language. In
Swearingen vs. United States, 161 U. S., 446; 40 Law Ed.,
765, the Supreme Court held that the words "obscene,"
"lewd," and "lascivious," as used in the statute signi-
fied that form of immorality which has relation to sexual
impurity, and have the same meaning given them at Com-
mon Law in prosecutions for obscene libels, and, there-
fore, do not extend to language although it may be ex-
ceedingly coarse and vulgar, and plainly libelous, if it
has not a lewd, lascivious, and obscene tendency, calcu-
lated to corrupt and debauch the mind and morals.
This definition supports, it would seem, the line of au-
thorities upholding the Martin decision, cited supra, and
also limits the purpose of the original statute to such ob-
scenity. In the Swearingen case, the prosecution was for
the mailing of a paper which contained the coarsest pos-
sible language toward another, and the language would
unquestionably have been construed "filthy," had that
word been included in the statute, unless the Courts are
to determine that the word filthy," as used in the new
statute, was purposelessly used by Congress. To the
same effect is United States vs. O'Donnell, 165 Federal,
218; United States vs. Benedict, 165 Federal, 221; Konda
vs. United States, 166 Federal, 91. The question as to
whether the matter is obscene within the meaning of
the law, as defined by the judge, must be submitted to
the jury. It is quite true that there are some decisions
to the contrary, but all of the reasoning, as well as the
weight of authority, seems to be that the question should
be left to the jury, because it is a question of fact. In
Konda vs. United States, 166 Federal, 93, the Court said:

"In our judgment, a defendant in a criminal case has the absolute
right to require that the jury decide whether or not the evidence
sustains each and every material allegation of the indictment. Mate-

Postal Crimes. 173

rial allegations are allegations of fact, and each, as much as any other,
enters into a verdict of guilty. If the judge may decide that one or
another material allegation is proven, he may decide that all are
proven, and so direct a verdict of guilty. In a civil case, the judge
may exercise the power of directing a verdict for the plaintiff, when
there is no conflict in the evidence, and the only inference that can
be drawn by reasonable minds as to the ultimate facts in issue favors
the plaintiff. This power, we opine, grew out of the practical ad-
ministration of the fundamental power of review on a motion for a
new trial, the findings of the jury. In the civil cases above supposed,
if the jury should return a verdict for the defendant, the judge would
set it aside; and he would continue to set aside verdicts in that case
until one should be returned that was in accord with the undisputed
facts; so he cuts off the possibility of useless verdicts by directing
in the first instance, the jury to return the only verdict he will let
stand. But in a criminal case, if the jury returns a verdict for the
defendant, the judge, no matter how contrary to the evidence he may
think the verdict is, cannot set it aside and order a new trial. There-
fore, since the judge is without power to review and overturn a ver-
dict of not guilty, there is no basis on which to claim the power to
direct a verdict of guilty. Our conclusion is that an accused person
has the same right to have twelve laymen pronounce upon the truth
or falsity of each material averment in the indictment, if the evidence
against him is clear and uncontradicted, as he unquestionably would
have if it were doubtful and conflicting. Inasmuch as jurors are
rightly trusted in close and difficult cases, to maintain the peace and
dignity of organized society, surely they may be relied on in th«»
plain and simple ones."

In Knowles vs. United States, 170 Federal, page 410,
the Court assumes a similar position, and says:

"Upon this record, the only question before us is, whether the ar-
ticle is obscene, lewd, or lascivious, within the meaning of the statute.
If it was fairly open to the construction of falling within either of
these classes, it was the plain duty of the Court to submit the ques-
tion of its character to the jury. In all indictments under this statute,
there is a preliminary question for the Court to say whether the
writing could, by any reasonable judgment, be held to come within
the prohibition of the law. That is like the question of law in a
case of negligence, as to whether there is any substantial evidence
of negligence. It leaves a wide field for the sound, practical judgment
of the jury to determine the true character of the writing and its
probable effect upon the minds of readers. Whenever reasonable
minds might fairly reach different conclusions as to the character
of the writing, it is the duty of the Court to submit the question to
the jury."

174 Federal Criminal Law Procedure.

and cites Rosen vs. United States, 161 U. S., 29; United
States vs. Bennett, 16 Blatchf., 342; United States vs.
Davis, 38 Federal, 326; United States vs. Harmon, 45
Federal, 418.

Under a plea of not guilty, each and every necessary
element alleged in the bill of indictment must be proven
beyond a reasonable doubt by the sovereignty, and each
of such elements, and the proof thereof to the measure
indicated, is to the satisfaction of the jury, and any per-
emptory charge against the defendant is violative of his
rights.

It is the duty of the Court to define the words obscene,
lewd, lascivious and filthy, etc., as used in the statute
and then leave it for the "jury to sav whether the facts
show such obscenity, lewdness, lasciviousness, etc. Bots-
ford vs. U. S., 215 Federal, 510; U. S. vs. Kennerly, 209
Federal, 119; Tyomies vs. U. S., 211 Federal, 389.

It is entirely immaterial that one who mails impure
matter, within the meaning of the statute, has a pure
motive; if the matter mailed is obscene, he is guilty. So,
also, the freedom of religion, and freedom of the press,
cannot be used as defenses to prosecutions under these
statutes. Knowles vs. United States, 170 Federal, 411;
Davis vs. Beason, 133 U. S., 333; 33 Law Ed., 637.

In 118 Federal, page 495, United States vs. Moblen-
ski, the Court held in substance that the matter must
tend to corrupt the morals of the person to whom it is
addressed. This decision is not thought to be supported
by the best authority. The addressee might, as a matter
of fact, be so morally obtuse as to be beyond further in-
jury or corruption, but the letter might fall into the hands
of innocent persons; and the test is, whether the contents
would bring the blush of shame to the cheek of virtue, not
whether the contents would bring, the blush of shame
to the cheek of vice. See 160 Federal page 700, United
States vs. Musgrave, which holds that the law relates
to the reading matter, and not to the state of the mind
of the receiver. Under the Common Law, and for time
immemorial it was an offense to utter obscene language
in public places, or near a dwelling house, or in the pres-

Postal Crimes. 175

ence of women, arid the purpose, therefore, of the Fed-
eral statute, it would seem, is to protect the innocent and
pure against having obscenity intruded upon their no-
tice.

The section, so far as it relates to the prevention of
conception and articles intended therefor, would require
that bill of indictment describe the thing advertised.
United States vs. Pupke, 133 Federal, 243. A somewhat
broader holding is in United States vs. Somers, 164 Fed-
eral, 259. See also Lee vs. United States, 156 Federal,
948. It is also held that a corporation may violate this
section. United States vs. Herald, 159 Federal, page 296.

In Ackley vs. U. S., 200 Federal, 218, it was held that a
decoy letter from a postoffice inspector relating to that
portion of the statute designed to prevent the mails from
the conveying of information as to where or from whom
instruments or information to prevent conception might
be obtained, might be made the basis of prosecution, but
that such postoffice inspector was an accessory and must
be treated as such. The letter of inquiry mailed by the
inspector and the answer thereto are both admissible. U.
S. vs. Kline, 201 Federal, 954. And it is entirely imma-
terial that such letters would upon their face give infor-
mation as to their true meaning to a stranger. U. S. vs.
Blenholm, 208 Federal, 492. And a letter which is an
answer to a prospective patient may be set forth in the
indictment without explanatory words to show wherein
it gave the inhibited information. Clark vs. U. S., 202
Federal, 740.

An indictment which contains no copy of the letter, no
averment that it was indecent; that it was unfit to be
spread upon the record of the Court, and no allegation
of its date, of the name signed to it, of the place where
it was. mailed, or of any words, figures, or marks which
it contains whereby it can be identified, does not state
the facts which constitute the offense charged with such
clearness and certainty as to enable the defendant to
avail himself of a conviction or acquittal thereon as de-
fense to a second prosecution for the same offense, and
is insufficient in face of a motion in arrest of judgment,

176 Federal Criminal Law Procedure.

and the office of a bill of particulars is not to make a
bad indictment good. Floren vs. U. S., 186 Federal, 961.

See Stayton vs. U. S., 213 Federal, 224, as to allegation
of knowledge in the indictment. Under this statute,
knowledge, of course is an essential ingredient of the of-
fense. In other words, if one should deposit in the United
States mails any article inhibited by the statute it would
not be an offense unless such deposit was knowingly done.

An indictment which charges that the defendant receiv-
ed from the Postoffice Department a certain letter, a copy
of which was set out, and that thereafter in response
thereto did knowingly, etc., deposit, etc., for mailing and
delivery a certain envelope containing a letter giving in-
formation as he, the defendant well knew, as to how when,
where, of whom and by what means certain articles, etc.,
intended to prevent conception, might be obtained, was
not demurrable for failure to allege that defendant knew
or believed the articles mentioned in the letter were de-
signed or intended to prevent conception. U. S. vs. Cur-
rey, 206 Federal, 322. This case also holds that this sec-
tion does not apply to a letter describing and advertising
certain articles in a manner calculated to lead another to
use and apply such articles for the prevention of concep-
tion, if it does not give information as to where they can
be obtained.

It is reversible error to ask highly prejudicial and im-
proper questions as to division of fees in abortion cases
upon trial of indictment charging the furnishing of in-
formation as to where an abortion might be secured.
Bombarger vs. U. S., 219 Federal, 841. A reading of the
case will raise doubt in the mind as to whether the ques-
tion was really improper. The defendant was being
tried for a similar offense and his agreement to divide
fees with another would seem to be relevant in showing,
not only intent, but willingness, and also as tending to
throw light upon true meaning of defendant's letters.

A deposit, under this Section, in a United States post-
office, is a deposit in a post-office box. Shepherd vs.
United States, 160 Federal, 584.

Postal Chimes. 177

By an amendment to an Act in May, 1908, Congress
provided that the term "indecent," as used in the old
Section 3893, shall include matter of a character tending
to incite arson, murder, or assassination; but it is not
thought that any statement in the new Code would au-
thorize such meaning for the word "indecent" in Section
211. Federal Statutes Annotated, Supplement 1909, page
525. Other cases bearing upon this statute are the fol-
lowing:— Evans vs. United States, 153 U. S., 587; Grimm
vs. United States, 156 U. S. 608; Einker vs. United States,
151 Federal, 755; in re Rapier, 143 U. S., 110; Barnes
vs. U. S., 166 Federal, 113; United States vs. Musgrave,
160 Federal, 700; Hansom vs. United States, 157 Fed-
eral, 749; United States vs. Harris, 122 Federal, 551;
United States vs. Moore, 104 Federal, 78; United States
vs. Chase, 135 U. S., 117; United States vs. Reid, 73
Federal, 289; United States vs. Clark, 43 Federal, 574.

Postmark. — In U. S. vs. Noelke, 1 Fed. Rep., 426, which
was followed in U. S. vs. Williams, 3 Federal, 484, the
Court held that the postmark upon the envelope made a
prima facie case that the letter had been deposited in
the United States mail.

53a. Obscenity, Scurrilousness, Indecency, Knowl-
edge, Etc. — To be a violation of Sec. 211 the letter must
disclose its evil character, Sales vs. U. S., 258 F. 596.

An indictment is not invalid because it adds the word
indecent, though that word be not in the statute, Lock-
hart vs. U. S., 250 F. 610.

It is not an offense to mail a sealed obscene letter to
one's self was held in U. S. vs. Reinheimer, 233 F. 545.
But this decision seems to me to be in conflict with the
fundamentals upon which the reasoning with reference
to this statutes has been based. It is not a question, al-
together, of whether the matter would corrupt the ad-
dressee; the broader and safer rule seems to be that that
is an offense under this statute, when the matter would
bring the blush of shame to the cheek of virtue. A letter
addressed to one's self and carried through the mail
might never reach its destination, by some accident its
contents might be exposed enroute.

178 Federal Criminal Law Procedure.

Judge Ray held in U. S. vs. Klauder, 240 F. 501, that
a letter which described the immoralities of priests was
not necessarily violative of this section and that, upon
demurrer, the court can decide whether the matter is so
clearly innocent that the question should not be submit-
ted to the jury.

On the other hand the Circuit Court of Appeals, in
Parish vs. U. S., 247 F. 40 held that a letter to a woman
threatening exposure of her compromising position with
a man could not, as a matter of law, be held not to be
obscene, etc., within the meaning of this statute.

Knowledge must be alleged always in the indictment,-
Moens vs. IT. S., 267 Fed. 318. It is not difficult for one
to imagine how an innocent person might, without know-
ing the character of a writing, mail it, but such a person
should not be held guilty if there was no knowledge of
the character of the writing.

For a judicial definition of the word "indecent" and
the word "filthy" as used in the present statute see U. S.
vs. Davidson, 244 Fed. 523.

The character of the addressee is not the subject of
the inquiry. In other words it is immaterial what sort
of a character the addressee may be in order to mal^e the
communication offensive; it is the words, the subject
matter and not the person, Bobbins vs. U. S., 229 Fed.
987.

For an indictment and the necessary ingredients there-
of to plead an offense under this statute, for the pre-
senting of conception see Wetzel vs. U. S., 233 Fed. 984.

The indictment must describe the offense, as if one
is indicted for conveying information with respect to the
performance of an abortion, there must be no uncertainty
in pleading that he was really willing to perform such au
operation; that is there must be the indication of a posi-
tive intent that the act will be done and not merely that
it may perhaps be performed, Bours vs.U . S., 229 Fed.
960.

The conclusion of an indictment may be disregarded.
Frisbie vs. U. S., 157 U. S. 160.

Postal Crimes. 179

For the essentials of an indictment and an expression
as to when snch essentials amount to "due process," see
Fontana vs. U. S., 262 Fed. 283.

§ 53b. Indictment. — Ordinarily documents essential
to the charge of crime must be sufficiently described to
make the contents thereof known, yet matter too of-
fensive or indecent to be spread on the record may be
referred to in a manner sufficient to identify it and advise
the accused of the document intended without setting
forth its contents and this course is applicable to an in-
dictment under this statute. Bartel vs. U. S., 227, U. S.
427. An indictment may set out a part only of a printing.
Winters vs. U. S., 201 Federal 845. An omission from an
indictment may be satisfied by a bill of particulars which
will be granted as a matter of course. Coomer vs. U. S.,
213 Federal, 2; Bartel vs. U. S., 227, U. S., 427. U. S. vs.
Kennedy, 209 U. S, 219.

I believe that the whole instrument in which is con-
tained the alleged improper matter, whether book, pam-
phlet, paper, or writing, should be submitted to the jury
and included by them in their consideration as to whether
the alleged matter is unmailable. U. S. vs. Kennerly, 209
Federal, 119; Clark vs. U. S., 211 Federal 917.

§ 53c. Matter Intended to Incite Arson, Murder or
Assassination. — The Act of March 4, 1911, added a most
unusual and seemingly incongruous meaning to the word
"indecent" as used in this section, such amendment be-
ing, "That the term 'indecent' within the intendment of
this section shall include matter of a character tending
to incite arson, murder or assassination." 36 Stats. L.
1335, page 302, 1st Vol. 1912, Supp. Fed. Stats. Ann.

§ 53d. Prize Fight Films.— On July 31, 1912, the Con-
gress passed an Act providing as follows:

"§ 1. That it shall be unlawful for any person to
deposit or cause to be deposited in the United States
mails for mailing or delivery or to deposit or cause to bft
deposited with any express company or other common
carrier for carriage, or to send or carry from one state
or territory of the United States or the District of Co-
lumbia to any other state or territory of the United

180 Federal Criminal Law Procedure.

States or the District of Columbia, or to bring or cause
to be brought into the United States from abroad any
film or other pictorial representation of any prize fight
or encounter of pugilists, under whatever name, which is
designed to be used or may be used for purposes of public
exhibition.

"§ 2. That it shall be unlawful for any person to take
or receive from the mails or any express company or
other common carrier, with intent to sell, distribute, cir-
culate or exhibit any matter or thing herein forbidden to
[sic] be deposited for mailing, delivery or carriage in
interstate commerce.

"§ 3. That any person violating any of the provisions
of this Act shall for each offense, upon conviction there-
of, be fined not more than one thousand dollars or sen-
tenced to imprisonment at hard labor for not more than
one year, or both at the discretion of the court." 37
Stats. L. 241, page 326, 1914 Supp. Fed. Stats. Ann.

Manifestly the statute is directed solely at the sending
of such prize fight films, etc., as are intended for public
exhibition or for the purpose of sale, distribution or cir-
culation, which words seem to be broader than the word
exhibition. The sending of such a film for one's own
convenience and without any thought of exhibiting or
selling or circulating the same would, of course, not be
unlawful.

The statute not only inhibits the sending of films but,
likewise any pictorial representation, which would in-
clude photographs of any other reproduction of such an
encounter or exhibition preserved by the arts of science.
It is not thought that the statute would prevent the
sending of films or pictorial representations of a simu-
lated prize fight. In other words, the film or represen-
tation, in order to be unlawful, must reproduce a genuine
prize fight, that is a fight for a prize or title or belt of
championship, and must be an encounter between pu-
gilists.

§ 53d.d. Paid Editorial, etc. to be marked "Advertise-
ment."— Congress, on August 24, 1912, passed the fol-
lowing statute; "That all editorial or other reading mat-

Postal Crimes. 181

ter published in any such newspaper, magazine, periodical
for the publication of which money or other valuable
consideration is paid, accepted or promised, shall be
plainly marked 'advertisement.' Any editor or publish-
er printing editorial or other reading matter for which
compensation is paid, accepted or promised, without so
marking the same, shall, upon conviction in any court
having jurisdiction, be fined not less than $50 nor more
than $500." 37 Stats. L. 553, page 316, 1914 Supp. Fed.
Stats. Ann.

The word "such" as used in this statute relates to
publications that are admitted into the United States
mails as second class matter.

This section is not unconstitutional as infringing the
freedom of the press and depriving one of property with-
out due process of law. Lewis Publishing Co. vs. Mor-
gan, 229 U. S., 288.

This Act, in the Section immediately preceding, also
provides that the names of the owners of the publication,
etc., shall be furnished the government at stated periods,
but no penalty is provided for a failure to do so, save and
except that the use of the mails shall be denied.

53d.d.d. Matter Intended to Incite Arson, Murder or
Assassination, Continued. — In an indictment under this
Sec. it is not necessary to set out the matter, though that
is the proper pleading, U. S. vs. "Wells, 262 Fed. 833.

An indictment may contain a count under Sec. 211 and
a count under Sec. 212.

53d.d.d.d. Espionage Act. — During the world's war
which begun in April 1917, so far as the United States is
legally concerned, the Congress passed what was called
an Espionage Act and the following cases are preserved
in the reports as following the extent of such legislation
and the judicial construction thereof. Debs vs. U. S.,
249 U. S. 211; this case is based upon the obstruction of
recruiting.

For false reports and statements, Kirchner vs. U. S.,
255 Fed. 301, remarks Ehuberg vs. U. S., 255 Fed. 865.
Book denouncing patriotism, Shaffer vs. IT. S., 255 Fed.
886. Insubordination, Coldwe'l vs. U. S., 256 Fed. 805.

182 Federal Criminal Law Procedure.

Expression of opinion, Sandberg vs. U. S., 257 Fed. 643.
Intent, Schulze vs. U. S. 259 Fed. 189. Motion picture,
Goldenstein vs. U. S., 258 Fed. 908. False reports, Foster
vs. U. S., 253 Fed. 481. Public address, O'Hare vs. U.
S., 253 Fed. 538. Examples, Doe vs. U. S., 253 Fed. 903
and U. S. vs. Binder, 253 Fed. 978; Sugar vs. U. S., 252
Fed. 79. Indictment, elements and essentials, U. S. vs.
Schutte, 252 Fed. 213. Protection of Red Cross, U. S.
vs. Nagler, 252 Fed. 217. Obstructing enlistment, U. S.
vs. Nearing, 252 Fed. 223. Impeding enlistment, 252 Fed.
232. Refusal to subscribe to loan or Red Cross, U. S.
vs. Pape, 253 Fed. 270. Means of support, etc., U. S. vs.
Schulze, 253 Fed. 377. False questions, Pierce vs. U. S.,
40 Sup. Ct. Rep. 205. False notarial certificate, U. S. vs.
Blakeman, 251 Fed. 306. Denouncing war, U. S. vs. Bou-
tin, 251 Fed. 313. Family conversation, Harshfield vs.
U. S., 260 Fed. 659; Goldman vs. U. S., 245 U. S. 474.
Publications, U. S. vs. Pierce, 245 Fed. 878. False state-
ments, Moses vs. Patten, 244 Fed. 535. Legitimate criti-
cism, Masses vs. Patten, 246 Fed. 24; "Wolf vs. U. S.,
259 Fed. 388; U. S. vs. Sugarman, 245 Fed. 605. Insub-
ordination, U. S. vs. Kraft, 249F ed. 920. False state-
ments and whole seditious act, U. S. vs. Hall, 248 Fed.
150.

53d.d.d.d.d. The prize fight film act was declared con-
stitutional in Webber vs. Freed by the Supreme Court of
the United States, 239 U. S. 325. *

§ 54. Libelous and Indecent Wrappers and Envel-
opes, Etc. — Closely akin, and for the same practical pur-
pose to Section 211, is Section 212 of the new Code. This
section was the result of a series of acts, which resulted
finally in the Act of September, 1888, First Supplement,
621, which is practically identical with the new Section.
212. Originally, scurrilous epithets by the Act of 1872,
on postal cards and envelopes were alone prohibited. By
the Act of March 3, 1873, the word " indecent" was add-
ed; by the Act of July 12, 1876, the words "lewd, ob-
scene, or lascivious" as adjectives and the words "de-
lineations, terms, or language" as nouns, were inserted;

Postal Crimes. 183

and finally, by the Act of September 26, 1888, Section 212
reads as follows:

"All matter otherwise mailable by law, upon the envelope or outside
cover or wrapper of which, on any postal card upon which any de-
lineations, epithets, terms, or language of an indecent, lewd, lascivious,
obscene, libelous, scurrilous, defamatory, or threatening character,
or calculated by the terms of manner or style of display and obviously
intended to reflect injurious upon the character or conduct of another,
may be written or printed or otherwise impressed or apparent, are
hereby declared non-mailable matter, and shall not be conveyed in
the mails nor delivered from any post-office nor by any letter carrier,
and shall be withdrawn from the mails under such regulations as the
Postmaster General shall prescribe. "Whoever shall knowingly deposit
or cause to be deposited, for mailing or delivery, anything declared
by this section to be non-mailable matter, or shall knowingly take
the same or cause the same to be taken from the mails for the pur-
pose of circulating or disposing of or aiding in the circulation or
disposition of the same, shall be fined not more than five thousand
dollars, or imprisoned not more than five years, or both."

Every decision and construction of the Act of 1888 is
material aid in understanding the present law, because,
as before stated, they are practically identical.

In a consideration of postal statutes and particularly
such statutes as inhibit the use of this utility for what
Congress has called improper and unlawful purposes, we
must bear in mind that an unrestricted use is not one of
the fundamental rights guaranteed by the Constitution.
Warren vs. U. S., 183 Federal, 718. It is not material
whether the objectional language is true or false or
whether the accused was actuated by public spirit or
private malice; hence the offering of a reward upon the
outside cover of a piece of mail which reflects injuriously
upon some person is against the law. Warren vs. United
States, 183 Federal, 718.

The court must submit to the jury the determination
of whether or not a delineation or other display is calcu-
lated to reflect injuriously upon the character of the
person addressed. The reasons for this are just as strong
as those urged in support of the submission of any other
question of fact upon a plea of not guilty to the jury.
The Court cannot determine, as a matter of law, that any

184 Federal, Criminal Law Proceduee.

particular delineation or display is in violation of the
statute. Of course, it is not meant to here indicate that
the Court may not express his opinion thereon. He al-
ways has this right.

In United States vs. Dodge, 70 Federal, 235, the pro-
prietor of a collection agency adopted a method of pro-
ceeding by which, on failure of debtors to pay on first
demand, a dunning letter was sent through the mails, en-
closed in a pink colored envelope, and if this did not
receive a favorable response, another letter was sent
enclosed in a black envelope, addressed in white letters.
The purpose of these letters was universally known to
the post-office employees. Having been arrested on a
charge of violation of the Act of September 26, 1888,
in respect to non-mailable matter, he sued out a writ of
habeas corpus, and the Court held that the use "of such
envelopes was a delineation within the meaning of the
statute, and that whether the effect was to reflect in-
juriously upon the character or conduct of the addressee
was a question for the jury, upon a trial for the offense,
for which reasons the prisoner was remanded. While
the Court did not pass upon the identical question as to
whether the determination of the injurious character of
the delineations was for the jury, and not the Court, yet
the decision is strongly persuasive. In United States vs.
Brown, 43 Federal, 135, upon a demurrer to an indict-
ment under this statute, the Court said:

"The respondent is indicted for depositing for mailing and delivery
matter, upon the envelope of which the words 'Excelsior Collection
Agency' were printed in large letters, and calculated by the terms ond
style of display, and obviously intended to reflect injuriously upon the

character and conduct of the person addressed To make a matter

non-mailable and to constitute the offense, that the delineation is cal-
culated and obviously intended to so reflect, must be apparent from
an inspection of the envelope The manner of display might in-
dicate clearly whether the words were placed there for injurious re-
flection upon that person, or for legitimate transmission of the con-
tents of the envelope through the mails Whether the display of

the words upon the envelope would support the averments of the in-
dictment, would be a question of fact for a jury."

See also United States vs. Olney, 38 Federal, 328.

Postal Crimes. 185

What Is Outside Cover or Wrapper?— A very interest-
ing and vital question is raised by the case of the United
States vs. Gee, 45 Federal, 194, wherein the District
Judge held, that, "the statute applied only to matter
exhibited upon an enclosing wrapper or cover and not to
matter which is contained in the body of the thing mail-
ed; that the statute being one constituting a criminal
offense, it cannot be extended by construction to cases
where there is no wrapper at all, even though such cases
may be within the reason and policy of the enactment."
This decision was with reference to a case arising upon
the mailing and delivery of a large number of four
page printed circulars about the size of a sheet of note
paper, upon the four pages of which was printed matter;
being an account of certain dealings between the defend-
ant and another; that these circulars, as deposited for
mailing and delivery, had no separate wrapper or cover
over them, but were folded twice into oblong shape, and
the postage stamps placed upon the circulars themselves.

The evident purpose of the statute was to prevent pa-
trons of the Post-office Department from sending through
the mails such matter as would or might easily attract
the eye of the distributing or handling clerks, by reason
of its being uncovered. It is submitted that an attack
upon another on a printed page of a newspaper or cir-
cular, upon which page the clerk or clerks must look to
find the address of the one to whom the paper is going or
must be delivered, is as apt to injure the addressee as
though the matter were upon a postal card or an envelope,
or upon a cover containing a newspaper, and that the one
so offending placed it upon the outside for that particular
purpose. The Century Dictionary, in defining the word
"cover," says, "It is something which is laid, placed,
or spread over, as the cover of a box, or the cover of a
dish, or the cover of a bed, or the cover of a book." It
is thought that the cover of a box, a dish, a bed, or a
book, is a part of the article itself, and thus, the cover
of a box is a part of a box, the cover of a dish is a part
of the dish, the cover of a bed is a part of the bed, and
the cover of a book is a part of a book. In United States

186 Federal Criminal Law Procedure.

against Burnell, 75 Federal, 824, District Judge Woolson
distinguishes the Gee case, and disagrees with it. The
Burnell case was an indictment against the proprietor of
a collection agency for having mailed and caused to be
mailed a certain newspaper, on the first page of which a
motto showed that its purpose was to collect debts, and a
large part of the paper contained notices warning the
public against persons alleged to have failed to pay their
debts or asking information as to such persons. It ap-
peared that when an account was sent to the agency for
collection, the alleged debtor was notified that if not
paid, the account would be advertised in such newspaper
as being for sale, and the paper contained many such ad-
vertisements. It was apparent that the object of the
paper was to coerce the payment of money. In mailing
the paper, where more than one copy was to be sent to
the same post-office, the name of the persons to whom
the copies were to be delivered were placed on the front
(outside) page. Then the papers for the office are rolled
together in a package in one wrapper, and on that wrap-
per was written the name of the post-office. When the
package reached the post-office, the office employees tore
off the package wrapper, that they might find the names
of the persons to whom the papers were to be delivered,
and every clerk or carrier attached to that office through
whose hands a copy thus sent had to pass, must look at
this front (outside) page to ascertain the name of the
addressee. Upon this state of facts, Judge Woolson held
that "if the obnoxious matter is on the 'outside cover,'
the statute is made against its mailing, even though such
cover be not an 'enclosing wrapper or cover,' but over-
spreads or overlays the pamphlet or paper mailed."

This opinion is interesting and exhaustive, and clearly
upholds that construction of the statute which makes it
an offense to publish upon the outside page of a newspa-
per statements that reflect injuriously upon the character
of the addressee.

Judge Evans, in United States vs. Higgins, 194 Feder-
al, 539, chooses and follows the Gee case rather than the
Burnell case, placing his decision upon the rule that laws

Postal Crimes. 187

which create a crime ought to be so explicit that all men
subject to their penalties may know of the acts it is their
duty to avoid, and before a man can be punished his
case must be plainly and unmistakably within the statute.
Duns and Postal Cards.— In United States against
Smith, 69 Federal, 971, the following language has been
held to come within the Act, when upon a postal-card:
"You have been righting time all along I will gar-
nishee and foreclose, but I dislike to do this if you will
be half white." In United States vs. Davis, 38 Federal,
326, the following was held to be a violation: "You are
sharp. All of you are on the beat." In United States vs.
Olney, 38 Federal, 328, the Court submitted the following
language to the jury, and the jury held that it was a vio-
lation, to wit: "Mr. Editor: I though that you were
publishing a paper for the wheel, but I see nothing but
rotten democracy. I am a republican and a wheeler, and
you can take your paper and democracy and go to hell
with it." So also, the following were held to be viola-
tions: "Your rent was due Thursday, February 25, 1892,
and has not been paid, and if not paid by Thursday,
March 3, 1892, I will place the matter in the hands of an
officer," United States vs. Elliott, 51 Federal, 807. "You
have promised, and do not perforin, and I see very plain-
ly you do not intend to pay any attention to my letters
or your agreements," U. S. vs. Simmons, 61 Federal, 640.
In United States vs. Boyle, 40 Federal, 664, the Court
held that this language, to wit, was not a violation:
"Please call and settle account which is long past due,
and for which our collector has called several times, and
oblige, ' ' but in the same decision the Court held that the
statement, "If it is not paid at once, we shall place the
same with our lawyer for collection," was not mailable,
and was a violation. For other cases bearing upon this
section, see United States vs. Pratt, 27 Federal, Cases
No. 16082; United States vs. Jarvis, 59 Federal, 357;
in re Barber, 75, Federal, 980; United States vs. Smith,
11 Federal, 663; ex parte Doran, 32 Federal, 76; U. S. vs.
Durant, 46 Federal, 753; U. S. vs. Loftin, 12 Federal,
671; U. S. vs. Elliott, 51 Federal, 807.

i88 Federal Criminal Law Procedure.

Of course, when the matter is obscene, lewd, or las-
civious, then the authorities cited under Section 211 are
applicable.

See also Griffin vs. U. S., 248 F. 6, and U. S. vs. David-
son, 244 F. 523, which treats of the different phases of
these statutes; U. S. vs. Anderson, 268 F. 696 also offers
some suggestions on the indictment; see also U. S. vs.
Pendergrast with reference to postcards.

§ 55. Use of the Mails for Fraudulent Purposes. —
The reliability, speed, and universality of the con-
veniences of the post-office establishment affords a reve-
nue-bringing vehicle for the unscrupulous. Many sorts
of frauds and schemes and artifices have, from time to
time, flourished for a season. A proposition attractively
stated in print, and addressed to a specific person, seems
to contain much more magnetism than spoken words or
general advertising. Just what per cent of the inhabi-
tants of the United States are credulous, has perhaps
never yet been determined, but the success of the fakir
would seem to indicate that a very large part of the
people, while they may not believe everything they see,
do believe nearly everything they read, especially if it be
addressed directly to them. Section 5480 of the old Code
was an Act intended to bring to justice those who made
this improper use of the mails. On March 2, 1889, 25
Stat, at Large, 873, I Vol. Sup. 694, this section was
amended, broadening and bettering it.

Section 215 of the new Code contains all of the ele-
ments of the last amendment with some additional words
and eliminations that make the Act comparatively com-
plete. The new Section also makes the punishment com-
mensurate with the offense, the penalties of the old stat-
ute being entirely too light. Section 215 reads as follows:

"Whoever, having devised or intending to devise any scheme or
artifice to defraud, or obtaining money or property by means of false
or fraudulent pretenses, representations or promises, or to sell, dis-
pose of, loan, exchange, alter, give away, distribute, supply, or furnish
or procure for unlawful use any counterfeit or spurious coin, bank note,
paper money, or any obligation or security of the United States, or of
any State, Territory, municipality, company, corporation, or person,
or anything represented to be or intimated or held out to be such

Postal Chimes. 189

counterfeit or spurious article, or any scheme or artifice to obtain
money by or through correspondence, by what is commonly called the
'saw-dust swindle' or 'counterfeit-money fraud,' or by dealing or pre-
tending to deal in what is commonly called 'green articles.' 'green
coin,' 'green goods,' 'bills,' 'paper goods,' 'spurious Treasury notes,'
United States goods,' 'green cigars,' or any other names or terms in-
tended to be understood as relating to such counterfeit or spurious
articles, shall, for the purpose of executing such scheme or artifice or
attempting to do so, place, or cause to be placed, any letter, postal
card, package, writing, circular, phamphlet, or advertisement, whether
addressed to any person residing within or outside the United States,
in any post-office, or station thereof, or street or other letter box of
the United States, or authorized depository for mail matter, to be sent
or delivered by the post-office establishment of the United States, or
shall take or receive any such therefrom, whether mailed within or
without the United States, or shall knowingly cause to be delivered
by mail according to the direction thereon, or at the place at which
it is directed to be delivered by the person to whom it is addressed,
any such letter, postal card, package, writing, circular, phamphlet, or
advertisement, shall be fined not more than one thousand dollars, or
imprisoned not more than five years, or both."

Elements of the Offense. — The indictment must charge
and the proof must show, (a) the devising of a scheme or
artifice to defraud; (b) that such scheme or artifice to
defraud is to be effected by opening or intending to open
correspondence with such other person or persons
through the post-office establishment or by inciting such
other persons to open communication with them; and.
(c) that a letter or packet or some other mail matter
enumerated in the statute must be deposited or caused
to be deposited for mailing and delivery in the United
States mail. United States vs. Long, 68 Federal, 348;
Milby vs. U. S., 109 Federal, 638; U. S. vs. Post, 113
Federal, 852; Horman vs. U. S., 116 Federal, 350; Hume
vs. U. S., 118 Federal, 689; Stuart vs. U. S., 119 Federal,
89; Ewing vs. U. S., 136 Federal, 53; Brown vs. U. S..
143 Federal, 60; Rumble vs. U. S., 143 Federal, 772.

Rimmerman vs. U. S., 186 Federal, 387; Horn vs. U. S.,
182 Federal, 721; Humes vs. U. S., 182 Federal, 485. The
elements must be affirmatively charged on by the Court
and found by the jury. Smith vs. U. S. 208 Federal, 133.

Whether the element which I have called "b" is to be
present in violations under the section, remains to be

190 Federal, Criminal Law Procedure.

seen, because the old section differed from the new in that
the old contained the words "to be effected by either
opening or intending to open correspondence or com-
munication with any person, or by inciting such

person or any person to open communication with the
person so devising or intending," which the new does
not contain. The new section simply demands, (1) the
formation of a scheme or artifice to defraud; (2) "shall
for the purpose of executing such scheme or artifice, ....

place or cause to be placed, any letter, etc., to be

sent or delivered by the post-office establishment." It
thus would seem, in the absence of the words "other
person," that one might, in the execution of a scheme
to defraud, wherein the use of the mails was contem-
plated, as required by the statute, devise a scheme, with-
in the meaning of the statute, so as to subject himself
to the penalty of the statute, and only use the mail in
addressing communications to himself. This was not
possible under the old statute. In Erbaugh vs. United

States, 173 Federal, 434, the Circuit Court of Appeals for
the Eighth Circuit held that one who devises a fraudu-
lent scheme to be effected by opening or intending to
open correspondence or communication with himself, by
means of the post-office establishment of the United
States, is guilty of no offense under 5480. The elements,
therefore, of an indictment under the new statute, are
the same as those under the old statute, with the possible
exception, as indicated above, that one may, under the
new statute, be guilty of the offense, even though he use
the mail only for the purpose of addressing himself, and
not for addressing his intended victim or victims.

The Courts have construed the new section with ref-
erence to the element b and have held as I indicated that
I felt they would hold. In other words, under the new
statute it is not necessary that the scheme or artifice to
defraud should have contemplated as a part of itself the
further idea that the post-office establishment should be
used. There are but two elements of the statute under
discussion and they are the elements a and c, namely the
devising of a scheme or artifice to defraud, and the plac-

Postal Crimes. 19 L

ing or causing to be placed for transmission and delivery
a letter or packet in the United States mails. U. S. vs.
Young, 215 Federal, 268; U. S. vs. Goldman, 207 Federal,
1002; U. S. vs. Young, 232 U. S., 155; IT. S. vs. Maxey,
200 Federal, 1001.

Broadly speaking, the section ''includes everything de-
signed to defraud by representations as to the past or
present, or suggestions and promises as to the future.

The significant fact is the intent and purpose It

was with the purpose of protecting the public against all
such intentional efforts to despoil and to prevent the
post-office from being used to carry them into effect, that
this statute was passed; and it would strip it of value to
confine it to such cases as disclose an actual misrepresen-
tation as to some existing fact, and exclude those in
which is only the allurement of a specious and glittering-
promise." 5 Fed. Stats. Durland vs. United States, 161
U. S. 306. See also Horman vs. U. S., 116 Federal, 350.
In U. S. vs. Sherwood, 177 F., 596, Court simplifies in-
dictment. In Foster vs. U. S., 178 Federal, 165, C. C. A.,
held scheme need not be repeated in second and succeed-
ing counts, if laid well in first and appropriately referred
to.

Actual misrepresentation is unnecessary provided the
representations that were made were intended and calcu-
lated to deceive and defraud, McCarthy vs. U. S., 187
Federal, 117, though " puffing " is not a violation, that is
to say use of extravagant statements is not necessarily an
offense particuliarly if the party himself believes. Har-
rison vs. U. S., 200 Federal, 662. Neither is a scheme
that is visionary necessarily fraudulent, Sandels vs. U.
S., 213 Federal, 569. It must be a scheme to defraud the
addressee and must be "scheme" or "device" and an
offer to sell loaded dice and marked cards is not such a
scheme. Stockton vs. IT. S., 205 Federal, 462.

Threatening Letter. — A scheme to extort money by
threatening to injure the reputation and character of
others by accusing them of heinous crimes in default of
payment of a large sum of money to the accusing, is a
scheme to defraud, within the meaning of this section.

192 Fedeeal Criminal Law Procedure.

Fed. Stats. Ann., 5, page 976. Horman vs. United States,
116 Fed. 350, which affirms the lower court in the case
of the United States vs. Horman, 118 Federal, 780.

A scheme to secure money from one whose photograph
was secured in a compromising position with a woman,
under threat that the photograph would be published, is
within the statute. United States vs. Goldman, 207 Fed-
eral, 1002. Affirmed in Goldman vs. U. S., 220 Federal,

57. '

Matrimonial agency, good indictment, see Glinn vs. U.
S., 177 Federal, 679.

Ordering Goods Without Intention to Pay. — A fruitful
source of revenue for this class of frauds has been the
use of the mails in ordering goods and merchandise, for
which they did not intend to pay. The Courts have very
justly held that such acts evidence the formation of a
scheme within the meaning of this section, and the intent
to not pay is drawn from the facts of the particular, case,
as, for instance, misrepresentation as to the solvency of
the person or firm ordering, misstatement as to the sort of
business engaged in, speedy sale of the goods and mer-
chandise when received at a price below cost or at cost,
and other facts that evidence no legitimate intent to en-
gage in a legitimate business. United States vs. Wood-
son, 35 Federal, 358; United States vs. Staples, 45 Fed-
eral, 195. It must be borne in mind that the intent not
to pay must exist before the credit is sought — must pre-
cede the order for the goods. United States vs. Wootten,
29 Federal, 702.

In United States vs. Evans, 153 U. S., 584, Mr. Justice
Brown says:

"If a person buys goods on credit in good faith, knowing that he
is unable to pay for them at the time, but believing that he will be able
to pay for them at the maturity of the bill, he is guilty of no offense,
even if he be disappointed in making such payment. But if he should
purchase them knowing that he will not be able to pay for them,
and with an intent to cheat the vendor, this is a plain fraud, and made
punishable as such by statutes in many states."

A scheme to sell false certificates to old soldiers is a
violation. Blanton vs. U. S., 213 Federal, 320. Ordering

Postal Crimes. 193

whiskey with no intention to pay and securing the bill of
lading by false representations and sending a check that
there was no intention should be paid, constitute a scheme
within the meaning of the statute. Charles vs. U. S., 213
Federal, 707. The making of a false financial statement
to a commercial agency with knowledge that it was false
and that it would be used as a basis for the sale of goods
on credit is an offense under this statute. Todd vs. U. S.,
221 Federal 205; Scheinberg vs. U. S., 213 Federal, 758.
Selling stock in a corporation for the alleged promotion
of the wireless telegraph by false representations is a
misuse of the mails. Parker vs. U. S., 203 Federal, 950.
The selling of cheap books by representation of excessive
value, etc., is false, even though matter of opinion. Unit-
ed States vs. Farmer, 218 Federal, 929.

Indictment. — It is absolutely necessary that the indict-
ment allege the sort of a scheme or artifice which sort
must include a determination to use the Post-office estab-
lishment, and in addition must allege that the defendant
deposited or caused to be deposited in the Post-office
for mailing and delivery, mail matter, in pursuance of
the scheme.

It is true that proof under this allegation will support
a conviction if it shows that the defendant's agent de-
posited the matter, and this even though the defendant
may have been in another district. In Hume vs. United
States, 118 Federal, 689, which was a case under the old
statute, when the punishment made the offense a misde-
meanor, Judge Shelby, speaking for the Circuit Court of
Appeals, held that even assuming that the offense is a
felony, the presence of the defendant at the time the let-
ters are mailed, in furtherance of a scheme denounced by
the statute, is not necessary to make him a principal in
the crime. So, also, in United States vs. Fleming, 18
Federal, 907, it was held that it was not necessary, in
order to make out the offense, that the defendant actual-
ly, with his own hands, placed a letter or packet in the
post-office. If the proof show that it was done through
his agency or direction, by an agent or employee, em-
ployed and directed for that purpose, it is sufficient to

194 Federal Criminal Law Procedure.

meet the allegations of the bill and the demands of the
statute.

It should also be borne in mind in this connection that
under the authority of United States vs. Loring, 91 Fed-
eral, 881, which seems to have been generally followed, it
is not necessary to set out all of the letters in full in
the indictment, nor to give the substance of their con-
tents; nor is it necessary that it should appear from the
letters that they were part of the fraudulent scheme. The
indictment may make a general allegation that there
were various and sundry and diver's letters deposited and
caused to be deposited to divers and sundry persons to
the grand jurors unknown, if such allegations be true,
and then set out particularly and accurately one letter,
and if the defense desires to know the names and ad-
dresses upon the letters covered in the blanket portion of
the indictment, they may obtain the same from the prose-
cuting officer by a proper request for a bill of particulars,
addressed to the Court.

A letter set out particularly in the indictment will sup-
port a charge under the statute, even though the letter
may be ever so formal, provided the letter was sent by
the defendant with a view of executing his scheme to
defraud. Durland vs. United States, 161 U. S., 306. Let-
ters, however, which do not seem to have been written
for the purpose of accomplishing any fraud, are not an
offense, of course. United States vs. Ryan, 123 Federal,
634; United States vs. Owens, 17 Federal, 72; Stewart
vs. U. S., 119 Federal, 89. Similar letters to the one set
out in the bill are always competent testimony, and may
be introduced on the question of intent. United States
vs. Watson, 35 Federal, 358; and under the authority of
the United States vs. Sauer, 88 Federal, 249, the venue of
the prosecution is determined by the point of mailing the
letter or the packet and prosecution must be had in the
district in which the letter or packet was mailed. The
Circuit Court of Appeals for the Ninth Circuit, speaking
through Judge Wolverton, in Walker vs. United States,
152 Federal, 111, determined that all letters intended in
some way to be utilized in connection with the scheme,

Postal Crimes. 195

are admissible, and quotes in support of that doctrine,
the expression of Justice Brewer in the Durland case,
cited supra, in these words:

"We do not wish to be understood as intimating that in order to
constitute the offense, it must be shown that the letters so mailed
were of a nature calculated to be effective in carrying out the fraud-
ulent scheme. It is enough if, after having devised a scheme to de-
fraud, the defendant, with a view to execute it, deposits in the post-
office letters which he thinks may assist in carrying it into effect,
although, in the judgment of the jury, they may be absolutely ineffect-
ive therefor."

In Lemon vs. United States, 164 Federal, 953, Circuit
Judge Adams, speaking for the Circuit Court of Appeals
for the Eighth Circuit, said:

"The contention that the statements and letters set out in the
several counts of the indictment negative the alleged fraudulent scheme,
cannot be sustained. The mailing of a letter in the execution or at-
tempted execution of a fraudulent scheme, is the gist of the offense de-
nounced by the statute. It is that act, and it alone, which confers
jurisdiction upon the Courts of the United States to punish devisors
of fraudulent schemes. The letter which is mailed is not required to
recite the whole scheme or be in itself effective to execute it. All
that is imperatively required is that the letter mailed should be one
calculated or designed to aid or assist in the execution or attempted
execution of a scheme or device."

The Circuit Court of Appeals for the Third Circuit
quotes with approval in re Henry, 123, U. S., 373, follow-
ed in De Barr, 179, U. S. 320, the following: "The Act
forbids, not the general use of the post-office for the
purpose of carrying out a fraudulent scheme or device,
but the putting in the post-office of a letter or packet, or
the taking out of such a letter or packet from the post-
office in furtherance of such a scheme. Each letter so
taken out or put in constitutes a separate and distinct
violation."

Miller vs. United States. — The Circuit Court of Ap-
peals for the Seventh Circuit, in the case of Miller vs.
U. S., 174 Federal, 35, seems to run dangerously near
an antagonistic decision to the Durland case, decided by
the Supreme Court, cited supra. It is true that the Mil-
ler case holds that the indictment charged no offense be-
cause it did not charge that the stock sold was not worth

196 Federal. Criminal Law Procedure.

the price paid for it, but the decision in reaching this
particular point, which it decides, contains many expres-
sions that might lead the practitioner to infer a danger-
ous broadness as to what is not comprehended within the
meaning of the statute. It is true that all the decisions
are a unit upon the proposition that there must be an
intention to injure the person addressed or sought to be
reached, by defrauding him of something which he al-
ready has, but it must be equally ever present in one's
mind that the statute inhibits the formation of a scheme
or artifice to defraud, wherein misrepresentations are
made through the United States mail for the purpose of
securing something of value from the person to whom
such representations are made. In the Miller case, the
devisor of the scheme to defraud was the President of a
corporation. The corporation decided to increase its
capital stock from $250,000 to $400,000. The corporation
was an actual manufacturer, employing from one hun-
dred to one hundred fifty men, the plant and good will of
which was worth many thousands of dollars. The de-
fendant represented through the mails, for the purpose
of selling this increased stock, that the corporation de-
sired to open branch houses for the sale of its goods and
to employ therein managers at fixed salaries, besides a
share of the profits, and that the company was earning a
profit of 20 per cent and paying 6 per cent dividend to
holders of its stock out of its net earnings; that as a
matter of fact the company was not earning 20 per cent,
or any per cent, and was not paying any dividends; that
pursuant to these representations, the stock was sold in
blocks of five thousand dollars each.

I do not fuss with the Court for determining that the
indictment should have alleged that the stock was not
worth what the purchasers paid therefor, but it does seem
to me that the allegations otherwise contained a full and
complete statement of such a case as comes easily within
the meaning of the statute. There was a determination
to increase the stock; the determination to increase the
stock was due to the fact that the defendant needed
money. In order to realize the money, representations

Postal Crimes. 197

were made with reference to the earning capacity of the
plant, which, therefore, controlled the value of the stock,
and made it desirable or undesirable. The representa-
tions made with reference to the stock and the plant, its
earning capacity, and dividends, were untrue and false,
and made through the United States mail. It is not
thought that any safe counselor" would advise his client
to engage in a similar enterprise.

Punishment and Number of Counts.— That paragraph
of the 1889 Amendment, which related to the number of
offenses committed within a certain given time, and
which was construed in Hall vs. United States, 152 Fed-
eral, page 420, and which has been the occasion of some
difference of opinion, is not entered into this statute.
Late decisions, however, upon that old section, are the
following: United States vs. McVickar, 164 Federal, 894:
Lemon vs. United States, 164 Federal, 953.

A consideration of the following cases, for the purpose
of finding illustrations of the effectiveness and limita-
tion of the statute, will be interesting: United States
vs. Smith, 166 Federal, 958; U. S. vs. Raish, 163 Federal,
911; Faulkner vs. U. S., 157 Federal, 840; U. S. vs. Dex-
ter, 154 Federal, 890; Booth vs. U. S., 154 Federal, 836;
Gourdain vs. U. S., 154 Federal, 453; Dalton vs. U. S.,
154 Federal, 61; Francis vs. U. S., 152 Federal, 155; Van
Dusen vs. U. S., 151 Federal, 989; U. S. vs. White, 150
Federal, 379; Brooks vs. U. S., 146 Federal, 223; U. S.
vs. Hess, 124 U. S., 483; in re Henry, 123 U. S., 372;
Stokes vs. U. S., 157 U. S., 187; Streep vs. U. S., 160 U.
S., 128; Brown vs. U. S., 143 Federal, 60; U. S. Ethe-
ridge, 140 Federal, 376; Betts vs. U. S., 132 Federal,
228; Packer vs. U. S., 106 Federal 906; Tingle vs. U. S.,
87 Federal, 320; U. S. vs. Smith, 45 Federal, 561.

See Colt vs. U. S., 190 Federal 305, in which it was
held that evidence of other like offenses in order to show
intent, is admissible.

Various indictments charging this offense may be con-
solidated. Emmanuel vs. U. S., 196 Federal 317.

§ 55a. Other Illustrative Cases. — A scheme to de-
fraud by means of fraudulent bounty claims for killing

198 Federal Criminal Law Procedure.

wolves may be properly laid under this statute. Fall vs.
U. S., 209 Federal, 547. The Court said, in reversing
this case for the exclusion of testimony upon the ob-
jection of the Government, that all evidence is to be re-
ceived which tends to refute any presumption or proof
of an evil intent. There must have been a scheme or
artifice to defraud, which necessarily includes the inten-
tion to defraud, and such intent is the very essence of
the offense. Variance in indictment, see U. S. vs. Smith,
222 Federal, 165.

A conviction in the case of Fane vs. U. S., 209 Fed-
eral, 525, for inducing false homestead entries upon
government lands was reversed on account of the errone-
ous admission of testimony and the Court further held
in this case that it was neither criminal nor unlawful to
do or to conspire to do that which the law does not pro-
hibit, but recognizes may be lawfully done without prej-
udice or injury to the United States or the State, follow-
ing United States vs. Biggs, 211 U. S., 597.

In the case of Bruce vs. U. S., 202 Federal, 98, the
Court of Appeals reversed the conviction on the ground
that the Court had erred in refusing to charge that the
fraud was not in the fact that morphine was employed
as a part of the treatment to cure the morphine habit.
In other words, one having advertised through the mails
to cure the morphine habit, he would not be precluded
from the use of morphine for that purpose, provided as
a matter of fact it was a recognized treatment for the
habit. Matters of opinion are difficult indeed to prove
as a fact and can hardly be made the basis of successful
prosecution. Bruce vs. U. S., 202 Federal, 105; Ameri-
can School vs. McAnnulty, 187 U. S., 104.

An indictment which charges doctors with having pre-
tended to be skilled and eminent physicians in the treat-
ment of various diseases and which is insufficient in al-
legation, must be attacked by demurrer or motion to
quash before verdict and unless the defendant's charac-
ter is put in issue proof of other offenses is inadmissible
and is reversible. Dyar vs. U. S., 186 Federal, 620; U.

Postal Crimes. 199

S. vs. Smith, 222 Federal, 165; Moses vs. U. S., 221 Fed-
eral, 863.

An intent to defraud is an absolute essential and
without such an allegation an indictment is fatally de-
fective, Blackman vs. U. S., 186 Federal, 965. The per-
sons must be defrauded. Wilson vs. U. S., 190 Federal,
427; Stockton vs. U. S., 205 Federal, 462.

55b. Illustrative Cases of Fraudulent Use of the Mail.

The fraudulent use of the mail statute continues to be
one of the most useful. In fact care must be taken lest
under it, jurisdiction over frauds that really does not
belong to the Federal courts be attempted. The new
statute excludes the theory that the scheme must include
the use of the mail; it is sufficient now if the mail is used
whether there was an original intention so to do, Smith
vs. U. S., 267 Feci., 665. In U. S., vs. Comyns, U. S.,
Sup. Ct., Jan. 1919, it was held that a land scheme was a
violation and the case also approved the form of an in-
dictment. For other indictments, McClendon vs. IT. S.,
229 Fed., 523; Gardner vs. U. S., 230 Fed., 575; Robins
vs. U. S., 262 Fed., 126. Wilson vs. U. S., 275 Fed., 307.

A pecuniary loss is not essential to constitute a viola-
tion was held in Wine vs. U. S., 260 Fed., 911. For
sample cases of the improper use of the mail to sell stock
see Tjosevig vs. Boyle, 268 Fed., 813, and Rowe vs. Boyle,
268 Fed., 809. See also Lyman vs. U. S., 241 Fed., 945.
Fraud practiced does not fall within the statutes unless
the scheme was so in its inception, U. S. vs. Bachman, 246
Fed., 1010; a scheme to pretend to locate government
land is a violation, U. S. vs. Comyns vs. IT. S., Sup. Ct.,
Jan. 1919. Names of the victims and the time the scheme
to defraud was determined upon need not be known, Bon-
foey vs. U. S., 252 Fed., 802.

For a fraudulent order against a seller of a sexual re-
juvenator, etc., see Leach vs. Carlisle, 267 Fed., 61; any
evidence showing that the article will do what it is
claimed for it is admissible, Hair vs. U. S., 240 Fed., 333;
one letter is sufficient to show character, Gernert vs. U.
S., 240 Fed., 403.

200 Federal Criminal Law Procedure.

A conspiracy among doctors to declare an ailment cur-
able regardless of the syptoms is a violation, Holsman vs.
U. S., 248 Fed., 193.

When the letter is delivered by hand and afterwards
another sends it through the mail, though the defendant
knew that such was the custom, he committed no offense,
was decided by the court in U. S. vs. Kenofskey, 235
Fed., 1019, but such decision was reversed by the Sup.
Ct., on April 6, 1917, same case.

The depositing by another makes the offense, Rose vs.
U. S., 227 Fed., 357.

The use of the mails after the completion of the of-
fense is insufficient, U. S. vs. Dale, 230 Fed., 750.

An acquittal on a conspiracy count in an indictment
makes a reversal of a conviction on the fraudulent use
count necessary, Hart vs. U. S., 240 Fed., 911.

See the case of Badders vs. U. S., U. S., Sup. Ct., Fed.
1916, for a discussion of the statute.

As to healing and the virtue of medicines see, U. S.
vs. Schlatter, 235 Fed., 381; Samuels vs. U. S., 232 Fed.,
536.

A scheme to buy oil stock includes promises as to the
future as well as to existing facts, MofYatt vs. U. S., 232
Fed., 522; Menefee vs. U. S., 236 Fed., 826.

Threats either by letter or otherwise is an offense un-
der the act of Feb. 14, 1917, 10200A— see 64; with im-
prisonment up to five years or a thousand dollar fine or
both, U. S. vs. Strickrath, 242 Fed., 151. A threat to
kill must be intended to reach the party, U. S. vs. French,
243 Fed., 785. Un-communicated, offense, when, U. S.
vs. Stobo, 251 Fed., 689; threats vs. the President, see
U. S. vs. Jasick, 252 Fed., 931 and U. S. vs. Metzdorf,
252 Fed., 933; and Pierre vs. U. S., 275 Fed., 352; one
cannot pretend that a threat was a joke unless it was
made known at the time that it was such, Eaganshky
vs. U. S. 253 Fed., 643; "Which case also defines "wil-
fully."

An application for a position which mis-states age,
salary, etc., is not an offense, Underwood vs. IT. S., 267

Postal Crimes. 20]

Fed., 412. Pretending to have spiritual power is a vio-
lation, Crane vs. U. S., 259 Fed., 480.

False credit statements are violations of these stat-
utes, Kaplan vs. U. S., 229 Fed., 389; Bettman vs. U. S.,
224 Fed., 819; Tucker vs. U. S., 224 Fed., 833. Pretend-
ing to do a large collection business and intending to
keep collections is a violation, Clark vs. U. S., 245 Fed.,
112.

Others counts may refer to the first count for a detail
of the scheme, Linn vs. U. S., 234 Fed., 543.

Trickery and chicanery are violations, Grant vs. U.
S., 268 Fed., 443; as is pretention of having a fine drug,
Edwards vs. U. S., 249 Fed., 686; a fraudulent collection
agency, Freeman vs. U. S., 244 Fed., 2.

The deposit by an innocent bank of a deposited check
secured by fraud in the United States mails is deposited
by the defendant, Spear vs. U. S., 228 Fed., 485, which
case holds that the doctrine of reasonable doubt extends
to all the elements of the offense.

Other illustrating cases are, exchange of property,
Stubbs vs. U. S., 249 Fed., 571; Mounday vs. U. S., 225
Fed., 965; stock sale, Finnegan vs. U. S., 231 Fed., 561;
McDonald vs. U. S., 241 Fed., 793; selling lands, Cham-
bers vs. U. S., 237 Fed., 513 ; scheme to bring black mail-
ing suits, McKelvey vs. U. S., 241 Fed., 801; to defraud
depositors of bank by false statements of solvency,
Sparks vs. U. S., 241 Fed., 777; chain of banks and use
of mail incidental, Hendrey vs. U. S., 233 Fed., 5; worth-
less treatment by physician, Oesting vs. U. S., 234 Fed.,
304. Physician pretending patient ill, Hughes vs. U. S.,
231 Fed., 50, but an employee in such office is not guilty;

Freman vs. U. S., 243 Fed., 354; protections and poli-
cies, New vs. U. S., 245 Fed., 710; use of mail by innocent
agent as bank is imputed to the defendant, Spear vs.
U. S., 246 Fed., 250; theory of medicine, etc., under this
statute, U. S. vs. American Labatories, 222 Fed., 104.

§ 56. The Civil Statute.— Section 3929 of the old
statute, amended by the Fifty-first Congress, as shown
at page 804 of the first Volume of the Supplement, Act
of September 19, 1890, gives the Postmaster General

202 Federal Criminal Law Procedure.

power to deny the use of the United States mails to
those conducting fraudulent schemes. Interesting cases
growing out of the exercise of such power are Missouri
Drug Company vs. Wyman, 129 Federal, 623, which re-
cites exhaustively and learnedly cases bearing upon this
question, and mentions and distinguishes the leading
case of Magnetic Healing vs. McAnulty, 137 U. S., 94;
47 Law Ed., 90; Donnell Company vs. Wyman, 156 Fed-
eral, 415; Appleby vs. Chiss, 160 Federal, 984; Putnam
vs. Morgan, 172 Federal, 450. The weight of authority
under this statute seems to be that a Court will inquire
into the evidence that was submitted to the Postmaster
General, and upon which that official acted, but will not
determine the weight of the evidence. The Postmaster
General, being in the Executive Department of the Gov-
ernment, and empowered with certain duties that in-
volve judgment and discretion, is not bound by the dis-
cretion and judgment of the Courts, provided he have
before him evidence upon which to base his act.

More is not said with reference to this statute and this
interesting jurisdiction of the Post-offrce Department,
for the reason that its discussion does not belong in this
work, it relating to civil remedies.

One seeking to enjoin the fraud order has the burden,
etc., Hall vs. Wilcox, 225 Fed., 333.

See also U. S. vs. Burleson 41 Sup. Ct. Rep., 352, for
an opinion bearing upon the denial of the second class
privilege which is the same doctrine.

See Sec. 65.

§ 57. Fraudulently Assuming Fictitious Address or
Name. — The meat of Section 216 in the new Code was
an Amendment to the old Section 5480 of the Revised
Statutes, and was an Act of the Second of March, 1889,
25 St. L., 873; First Supplement, 695.

In the new Code, however, the assumption of a ficti-
tious, false, or assumed title, name, or address, for the
purpose of conducting, prompting, or carrying on in any
manner, by means of the Post-office establishment, any
scheme or device mentioned in Section 215 of the new

Postal Crimes. 203

Code, or any other unlawful business, is made a separate
section.

The same punishment, however, is carried for viola-
tions of this section as that provided for violations of
Section 215.

It is not sufficient, under this section, that one assume
a false or fictitious name, or title to carry on a business,
unless such business be unlawful or denounced by the
terms of Section 215. In other words, a business that
is lawful in itself, even though conducted under an as-
sumed, fictitious, or false name, and though furthered
through the post-office establishment, would not be an
offense under this statute. In United States vs. Smith,
45 Federal, 561, in passing upon a case where a person
devised a scheme which contemplated that he should as-
sume the role of a Chinese physician and pretend to pos-
sess curative power, and to be able to minister to those
ailing certain Chinese herbs, but who in fact never fitted
up such apartments, nor put into execution the scheme,
other than to make such representations, the Court held
that the business must be specifically charged and its
unlawful character disclosed, for it is not an offense
within the statute, to assume a fictitious name in a law-
ful business.

In Tingle vs. United States, 87 Federal, 320. the Cir-
cuit Court of Appeals for the Fifth Circuit held that the
indictment was defective, because it failed to allege in
appropriate words that the alias and fictitious and false
name set out in the indictment, to wit, Otho Aronson. was
not in fact the name of a real person, and under this al-
legation in the bill, the Court charged the jury that they
could convict the defendant whether or not Aronson was
a real person, and this charge the Court held to be er-
roneous.

In other words, the decision would seem to indicate,
though it does not so decide, that to be entirely safe,
the prosecution must satisfy itself that the assumed
name is not in reality the name of some actual person
before it chooses to make the allegation in the bill. If
the assumed name were in fact the name of a genuine

204 Federal Criminal Law Procedure.

person, then it is thought that the bill could not allege,
and stand the test, that the name so used for the unlaw-
ful business was in fact fictitious and false. There
should be appropriate allegations under a different por-
tion of the law, or rather, as the law now stands, the
case would be a fraudulent use of the mail, under Sec-
tion 215, instead of Section 216.

§ 58. Lottery, Gift-Enterprise, Etc., Circulars, Etc.,
Not Mailable. — Thomas, in his interesting volume which
treats exhaustively some postal offenses which include
lottery violations, calls our attention to the fact that the
lottery as a method of gambling has prevailed from the
remotest antiquity. In England, Italy, France, Ger-
many, Austria, Spain, Holland, Denmark, Japan, China,
Mexico, and many of the South American Eepublics,
lotteries not only have flourished, but still live and
thrive. The life of the lottery in the United States was
active and fortune producing. The public conscience,
however, first pricked in some of the old countries, no-
tably England, aroused itself in the United States, and
various state legislatures attempted to rid this country
of this system of gambling. It was not until 1872, how-
ever, that Congress took a hand in the fight, giving us
Section 3894, of the old Statute, which, while a move in
the right direction, was rather puny, and not at all strong
enough to combat the gigantic power and force of the
deep-rooted evil. Later, September 19, 1890, 26 St. L.,
465, First Volume Supplement, 803, came a substitute for
3894, under which much effective prosecution was had.
On March 2, 1895, 28 St. L., 963, Second Volume Supple-
ment, 435, came an assisting and auxiliary Act, which
left in force all of the old statutes, and provided some
new provisions. This was the last lottery act before the
new code. Under this legislation, the lottery, and prac-
tically every other scheme involving a chance or draw,
has been driven from this country. The law inhibits
the passing of lottery matter either through the mails
or by any private carrier from one state to another, or
from another country to the United States, or from the
United States to another country. The sending of lot-

Postal Crimes. 205

tery matter, as defined in the statute, which includes let-
ters or circulars or any sort of an advertisement relating
thereto, by any of the post-office facilities, for never so
short a distance, is a violation; the sending of any such
matter by private conveyance from one state to another
state, or across the border from one .country to another
country, is a violation.

The new law, or Section 215, reads as follows:

"No letter, package, postal card, or circular, concerning any lottery,
gift enterprise, or similar scheme offering prizes dependent in whole
or in part upon lot or chance; and no lottery ticket or part thereof,
or paper, certificate, or instrument purporting to be or to represent a
ticket, chance, share, or interest in or dependent upon the event of
a lottery, gift enterprise or similar scheme offering prizes dependent
in whole or in part upon lot or chance; and no check, draft, bill, money,
postal note, or money order, for the purchase of any ticket or part
thereof, or of any share or chance in any such lottery, gift, enterprise,
or scheme; and no newspaper, circular, phamphlet, or publication of
any kind containing any advertisement of any lottery, gift, enter-
prise, or scheme of any kind offering prizes dependent in whole or in
part upon lot or chance, or containing any list of the prizes drawn or
awarded by means of such lottery, gift enterprise, or scheme, whether
such list contains any part or all of such prizes, shall be deposited
in or carried by the mails of the United States, or be delivered by
any postmaster or letter carrier. Whoever shall knowingly deposit
or cause to be deposited, or shall knowingly send or cause to be sent,
anything to be conveyed or delivered by mail in violation of the pro-
visions of this section, or shall knowingly deliver or cause to be deliver-
ed by mail anything herein forbidden to be carried by mail, shall
be fined not more than one thousand dollars, or imprisoned not more
than two years, or both; and for any subsequent offense, shall be
imprisoned not more than five years. Any person violating any pro-
vision of this section may be tried and punished either in the dis-
trict in which the unlawful matter or publication mailed, or to which
it was carried by mail for delivery according to the direction thereon,
or in which it was caused to be delivered by mail to the person to
whom it was addressed."

It will be noticed that every possible term indicating
latitude in the old statutes has been incorporated into
the new section, and in addition thereto, it authorizes
the trial of any offender in either the district wherein
the matter was deposited in the mails, or in the district
where the same was taken from the mails. The statute,

"206 Federal Criminal Law Procedure.

however, continues to contain the original weakness of
the old statutes, to wit, an indictment which charged
merely the depositing of a lottery ticket, etc., purport-
ing to be or represent a ticket, chance, share, or interest
in or dependent upon the event of a lottery, etc., would
not be sufficient to sustain a conviction where the proof
only showed the deposit of tickets, etc., evidencing a
drawing that had already taken place. The tickets, to
make an offense under that portion of the statute, must
be for a future drawing; otherwise, it would not be a
share or interest in or dependent upon the event of a
lottery, etc. It is quite true that the indictment could
include other portions of the statute, as, for instance,
that the tickets, even though representing a past draw-
ing, were advertisements of the lottery, and, therefore,
contraband and unlawful. In France et al. vs. United
States, 164 U. S., 674; 41 Law Ed., 595, the Supreme
Court of the United States, speaking through Mr. Jus-
tice Peckham, said:

"The lottery had already been drawn; the papers carried by the
messengers were not, then, dependent upon the event of any lottery.
The language as used in the statute looks to the future. The papers
must purport to be or represent an existing chance or interest, which
is dependent upon the event of a future drawing of the lottery. A
paper that contains nothing but figures, which in fact relate to a
drawing that has already been completed, and one that is past and
gone, cannot properly be said to be a paper certificate or instrument
as described in the statute. It purports to show not interest in or
dependent upon the event of any lottery. If the lottery has been
drawn, the interest is no longer dependent upon it. The condition
upon which the bet or the interest was dependent has happened; the
solution of the problem has already been arrived at; the bet has al-
ready been determined. The bare statement of that solution or deter-
mination, placed on paper, does not impart to that paper the character
of a certificate or instrument purporting to be or represent a ticket
etc., dependent upon the event of a lottery. From the statement
upon the paper, the agent may acquire the knowledge which will en-
able him to say who has won, but the book or the paper does not
purport to be, and is not, a certificate, etc., within the Act of Con-
gress."

It may, therefore, be contended that Section 213 is no
broader in the way of remedying this defect than was

Postal Crimes. 207

the original law. The Act of March 2, 1895, still stands
as the only Act that makes it against the law to trans-
port by private carrier from one state to another. In
125 Federal, page 617, United States vs. Whelpley, the
Court held that the Act of 1895 did not prohibit the
transportation of lottery tickets from a state to the
municipality of the District of Columbia, and also that
the section did not prohibit the transportation of lot-
tery tickets from one state "through" another state or
states, where the ultimate destination of the shipment
was not within one of the United States, See also Uni-
ted States vs. Ames, 95 Federal, 453, which held that the
transportation of lottery tickets from a state to a terri-
tory is not within the statute. In this last case, how-
ever, the point of great importance to the life and validity
of the Act of March 2, 1895, was, whether Congress had
the power, under the Commerce clause of the Constitu-
tion, to prohibit the transportation of lottery matter
from one state to another state in the United States, by
carriers or persons that were not government utilities.
Circuit Judge Jenkins held the law to apply fully. There-
after, in the same case, styled Champion vs. Ames, in
188 U. S., 321; 47 Law Ed., 492, Mr. Justice Harlan,
speaking for the Court, settled for all time the effective-
ness of the new Act. The writer had the honor to draw
the indictment passed upon in that case, and each of
the defendants was afterwards convicted at the Dallas
Division of the Northern District of Texas. In that opin-
ion, Mr. Justice Harlan, after reviewing extensively the
authorities, the Court having ordered a re-argument,
said:

"It was said in argument that lottery tickets are not of any real or
substantial value in themselves, and, therefore, are not subjects of
commerce. If that were conceded to be the only legal test as to what
are to be deemed subjects of the commerce that may be regulated by
Congress, we cannot accept as accurate the broad statement that such

tickets are of no value These tickets were the subject of traffic;

they could have been sold; and the holder was assured that the com-
pany would have paid to them the amount of the prize drawn. That
the holder might not have been able to enforce his claim in the courts
of any country making the drawing of lotteries illegal, and forbidding

208 Federal Criminal Law Procedure.

the circulation of lottery tickets, did not change the fact that the tick-
ets issued by the foreign company represented so much money payable
to the person holding them, and who might draw the prizes affixed
to them. Even if a holder did not draw a prize, the tickets, before
the drawing, had a money value in the market among those who
chose to sell or buy lottery tickets. In short, a lottery ticket is a

subject of traffic, and is so designated in the Act of 1895 We are

of the opinion that lottery tickets are subjects of traffic, and, therefore,
are subjects of commerce, and the regulation of the carriage of such
tickets from state to state, at least by independent carriers, is a reg-
ulation of commerce among the several states."

§ 59. What Is a Lottery or Chance? — In Homer vs.
United States, 147 U. S., 449, the Supreme Court of the
United States in effect determined that whatever amount-
ed to a distribution of prizes by lot was a lottery, no mat-
ter how ingeniously the object of it might be concealed.
In United States vs. Wallis, 58 Federal, 942, the Court
held that the language of the statute is sufficiently com-
prehensive to include any scheme in the nature of a lot-
tery, and it may be sufficient to say, said the Court, that
this embraces the elements of procuring through lot or
chance, by the investment of a sum of money or some-
thing of value, some greater amount of money or thing
of greater value. When such are the chief features of
any scheme, whatever it may be christened, or however
it may be guarded or concealed by cunningly devised
conditions or screens, it is, under the law, a lottery. So,
in Randall vs. State, 42 Texas, 585, the Court determined
that Courts will not inquire into the name, but will de-
termine the character of the transaction or business in
which parties are engaged. Mr. Thomas, in his work,
cited supra, has collaborated a number of definitions,
from which the following are taken:

"A lottery is a sort of gaming contract, by which, for a valuable
consideration, one may, by favor of the lot, obtain a prize of a value
superior to the amount or value of that which he risks." — American
and English Encyclopedia of Law.

"Any scheme whereby one, in paying money or other valuable thing
to another, becomes entitled to receive from him such return in value,
or nothing, as some formula of chance may determine." — Bishop on
Statutory Grimes, Section 952.

Postal, Crimes. 209

"Lottery, in its popular acceptation, is a distribution of prizes by
lot or chance; and when the chances are sold and the distribution
of prizes determined by lot, this constitutes a lottery." — Buck vs.
State, 62 Ala., 432; Solomon vs. State, 62 Ala., 83.

"The generally accepted definition of a lottery is, that it is a scheme
for the distribution of prizes for the obtaining of money or goods by
chance." — People vs. Noelke, 94 N. Y. 137.

"Any device whereby money or any other thing is to be paid or de-
livered on the happening of any event or contingency in the nature
of a lottery, is a lottery ticket." — Smith vs. State, 68 Md., 170; Bay-
land vs. State, 69 Md., 170.

"A lottery is a scheme, device, or game of hazard, whereby, for a
smaller sum of money or other thing of value, the person dealing
therein, by chance or hazard or contingency, may or may not get
money or other thing of value, of greater or less value, or in some
cases of no value at all, from the owners or managers of such lottery."
— State vs. Lumsden, 89 N. C, 572.

"Both by reason and authority, a lottery is a game — a game of
chance."— Korten vs. Seney, 68 N. W., 824.

"Whatever may be the name or character of the machine or scheme,
if in its use a consideration is paid, and there is gambling, the hazard-
ing of small amounts to win larger, the result of winning or losing to
be determined by chance, in which neither the will nor skill of man
co-operates to influence the result, it is a determination by lot." —
Loiseau vs. State, 22 Southern Rep., 138.

It must also be constantly borne in mind that a scheme
may come within the meaning of the lot or chance or
lottery clause of the above acts, even though every in-
vestor secures something; that is to say, even though
there be no blanks. United States vs. Horner, cited su-
pra. So in Seidenbender vs. Charles, 4 Serg. and Rawle.
151 (8 Am. Dec, 682), and Dunn vs. State, 40 Illinois,
465.

This class of cases covers and inhibits the so-called
land scheme, where each adventurer secures a lot of land,
but the lots are of unequal value, yet each being secured
for the same price. The Supreme Court of Pennsylvania
said upon this point:

"If it be said that in this case there be no blanks, we answer that
no material difference arises from that circumstance. Some of the
most fraudulent lotteries ever known have been those in which there
were no blanks. They are an imposition on the folly of mankind;

210 Federal Criminal Law Procedure.

for of what importance is it if a man who pays a considerable sum
for a ticket has a prize of very little value."

So in the Dunn case, cited supra, the Supreme Court
of Illinois said, the case showing that prizes in that
scheme ranged in value from a cheap trinket to a grand
piano :

"If it differs from ordinary lotteries, the difference is chiefly in
the fact that it is more artfully contrived to impose upon the ignor-
ant and credulous, and is, therefore, more thoroughly dishonest and
injurious to society.''

§ 59a. Illustrative Cases. — A loan company which
has a scheme for filing applications and numbering for
the determination of who shall be entitled to a loan, but
which scheme is an unfair device to save the making of
loans, is a violation. U. S. vs. Purvis, 195 Federal, 618.
Prizes in boxes of tobacco is a violation of this lottery
statute. U. S. vs. One Box, 190 Federal, 731. The plot-
ting of land and the increasing of the value of some
lots arbitrarily is a violation of this lottery statute. U.
S. vs. Kidgway, 199 Federal, 287.

59 b. Illustrative Cases Continued.

Publishing pictures and giving a prize to the person
or persons who identify the same is not an offense ac-
cording to Post vs. Murray, 230 F. 773. A false repre-
sentation as to the value and character of a piece of
ground or a lot is a violation, Trent vs. U. S. 228 F.
648.

§ 60. Land Schemes. — One of the most universal
violations and attempts to violate the lottery statute
are the various and sundry schemes for the sale and dis-
tribution of town-lot additions. A tract of land will be
secured contiguous to some city or town, the same will
be plotted into lots, and upon one or two of such lots a
building will be erected, and then the entire addition
put on the market at a uniform price per lot, there be-
ing some sort of an arrangement whereby the inves-
tors are to determine which one shall secure the im-
portant lot. This identical scheme has been denounced

Postal Crimes. 211

by the Supreme Court of Pennsylvania in the Seiden-
bender vs. Charles case, cited supra. In that case the
evidence showed that a party possessed of a tract of
land on the banks of a river divided it into town lots,
which he sold for three hundred thirty dollars each, the
specific lot to be awarded to each purchaser by lot. The
lots were of unequal value. The one on which the house
was erected was valued at eleven thousand dollars;
another having a barn on it was valued at three thou-
sand dollars, and two of the others had wooden buildings
thereon. While the lots abutting on the river were pe-
culiarly valuable, the great mass which laid back from
the river, and which were unimproved, bore no propor-
tion to the price at which the tracts were sold.

This scheme was denominated a lottery.

Throughout the country this and similar decisions are
being avoided by having the purchasers determine
among themselves how the lots shall be divided, in
which division there will be no drawing; as, for instance,
a community of trustees will be appointed, and these
trustees will pretend to auction the lots. It is thought,
however, that all such schemes are really within the pale
of the law, because the real incentive moving toward
the purchaser in all these cases is the thought that he
mav secure the valuable lot.

60 a. Land Schemes Continued.

An indictment which alleges false representations con-
cerning the locality of lands and false representations
as to value but does not allege that the lots were value-
less nor that the lots were of less value than the selling
price is insufficient to show a real purpose to defraud the
purchaser, U. S. vs. Schwarz, 230 F. 537.

A scheme involving a pretended location of claimants
upon government lands when they knew that the lands
could not be had because of litigation or otherwise, is a
violation, Hallowell, vs. U. S. 253 F. 865, so likewise a
false claim as to ownership would involve criminality,
McKnight vs. U. S. 263 F. 832.

§ 61. Issuing of Stock. — The Post-office Department
and its force of inspectors, and particularly the Assist-

212 Federal Criminal Law Procedure.

ant Attorney General for that Department, has been
most efficient in rendering service to the general public
by declaring fraudulent a great many so-called stock
concerns, insurance companies, building and loan as-
sociations, tontine policy corporations, that pretend to
issue stock or certificates, or to loan money at some
future date to such customers as would pay in small
installments at short and stated periods. But applying
figures and reasons to the respective plans of these
fraudulent concerns these officers of the people deter-
mined that it was impossible for the concerns to carry out
the contracts made, and when such conclusion has been
reached, a fraud order has followed under the statute
cited supra, and ofttimes the perpetrators have been
convicted. Such a scheme was denounced and a convic-
tion followed in the case cited at page 477 of the 156
Federal Reporter, Fitzsimmons vs. United States. That
was a scheme by which certificates were issued by a cor-
poration on each of which the holder agreed to pay one
dollar per week, subject to forfeiture for non-payment,
and about 75 per cent, of which payments were paid in-
to a "mutual benefit credit fund" until all certificates
prior in date had matured and been cancelled, when
his own certificate should mature, and he should be paid
from such fund a sum of two dollars for each week such
certificate had been in force, provided there were in such
fund the amount, which was not to exceed the sum of
one hundred sixty dollars.

§ 62. Other Cases. — Other cases bearing directly and
indirectly upon the statute under discussion, by reason
of their having arisen under some of the preceding stat-
utes, are the following:

United States vs. Irvine, 56 Federal, 375.

United States vs. Rosenblum, 121 Federal, 180.

United States vs. Fulkerson, 74 Federal, 619.

United States vs. McDonald, 65 Federal, 486.

McDonald vs. United States, 63 Federal, 426.

United States vs. Conrad, 59 Federal, 458.

United States vs. Politzer, 59 Federal, 273.

United States vs. Lynch, 49 Federal, 851.

Postal Crimes. 213

United States vs. Bailey, 47 Federal, 117.

United States vs. Horner, 44 Federal, 677.

Ex parte Jackson, 96 U. S., 727.

In re Rapier, 143 U. S., 110.

Horner vs. United States, 143 U. S., 570, and 147 U. S.f
449.

McDonald vs. U. S., 171 U. S., 689; also 87 Federal,
324.

U. S. vs. McCrory, 175 Federal, 802, holds incidental
use of mails insufficient.

62 a. Other Cases Continued.

The fraudulent securing of the issuance of bills of
lading when there was really no such shipment is, of
course, a violation, LeMore vs. U. S. 253 F. 887.

§ 63. Postmaster Not to Be Lottery Agents. — Sec-
tion 214 makes it an offense punishable by not more than
one hundred dollars fine, or imprisonment for not more
than one year, or both, for any postmaster or other person
employed in the postal service, to act as an agent for any
lottery, or under color of purchase or otherwise to vend
lottery tickets, or to knowingly send the same by mail, or
to deliver any letter or package or postal card or circular
or pamphlet advertising any lottery, etc., which is a
substantial re-enactment of the old Section 3851 of the
Revised Statutes, the new section being somewhat broad-
er and covering more territory. In Louisiana lottery
cases, 20 Federal, 628, the Court held that the word
"send" as used in the old section, signifies forwarding in
the mail through the officers of the government.

§ 63 a. Every Employee Liable to Penalties. — Sec-
tion 230 provides that every person employed in the
postal service shall be subject to all penalties and for-
feitures for the violation of laws relating to such service,
whether he has taken the oath of office or not, and Sec-
tion 231 provides that the words "postal service" when-
ever used in this chapter, meaning chapter on offenses
against the postal service, shall be held and deemed to
include the Post-office Department.

§ 64. False Returns to Increase Compensation.— Sec-
tion 3855 of the old statutes provided the basis for fixing
the compensation and salary of postmasters of the fourth

214 Federal Criminal Law Procedure.

class. That statute was subsequently amended in some
detail by the Act shown at page 186 of the First Volume
of the Supplement, and later by the Act shown at page
417 of the First Volume of the Supplement, and still
later by the Act shown at page 419 of the First Volume
of the Supplement, and still later by Section 2 of the Act
shown at page 602 of the 22 Statute at Large.

The pay of officers of this class is graded in this last act
upon the amount of stamps canceled. For instance, on
the first fifty dollars or less per quarter, 100 per cent; on
the next one hundred dollars or less per quarter, 60 per
cent; on the next two hundred dollars or less per quarter,
50 per cent; and on all the balance 40 per cent, the same
to be ascertained and allowed by the Auditor of the
Treasury for the Post-office Department in the settlement
of the accounts of such post-masters, upon their sworn
quarterly returns. To guarantee fidelity in these returns
and these reports, Congress enacted Section 1 of the 20
St. L., page 141, which provided a punishment for any
false return made by a postmaster to the Auditor for
the purpose of fraudulently increasing his compensation.
This includes what has been technically termed "false
cancellation;" and while it is one of the most difficulty
offenses to prove in the postal service, such proof has re-
peatedly been made by the placing of proper watches and
counts upon the outgoing mail matter from the office, and
by the estimating of the sale of stamps, computing of
box rents, drop letters, etc.

Section 206 of the new statute increases the penalty
and is much more comprehensive than the old statute,
and reads as follows:

"Whoever, being a postmaster or other person employed in any
branch of the postal service, shall make, or assist in making, or cause
to be made a false return, statement, or account to any officer of the
United States, or shall make, assist in making, or cause to be made,
a false entry in any record, book, or account, required by law or the
rules or regulations of the Post-office Department to be kept in re-
spect of the business or operations of any post-office or other branch
of the postal service, for the purpose of fraudulently increasing his
compensation or the compensation of the postmaster or any employee
in a post-office; or whoever, being a postmaster or other person em-

Postal Crimes. 215

ployed in any post-office or station thereof, shall induce, or attempt
to induce, for the purpose of increasing the emoluments or compensa-
tion of his office, any person to deposit mail matter in, or forward in
any manner for mailing at, the office where such postmaster or other
person is employed, knowing such matter to be properly mailable
at another post-office, shall be fined not more than five hundred dollars,
or imprisoned not more than two years, or both."

Few cases under this criminal statute have been re-
ported. United States vs. Snyder, page 554 in the 14
Federal, and the same case in the 8 Federal, at page 805,
do not contain any suggestions that will be of much bene-
fit to the practitioner. This case simply determines that
one may aid and abet a postmaster in committing the
offense, and that evidence of other acts and doings of a
kindred character are admissible to illustrate or establish
the intent or motive in the particular act charged and
being tried, which is, of course, the recognized doctrine
in all criminal cases.

In United States vs. Wilson, 144 U. S., 24, affirmed in
the 26 Court of Claims, 186, and 27 Court of Claims, 565,
it was held that a postmaster was entitled to his salary
under a designation by the Postmaster General, even
though he was not commissioned by the President until
some months thereafter.

§ 65. Civil Remedy. — The following cases relate to
that portion of the old statute, 20 St. L., 141, which relates
to the civil feature in which the government is interested
in the way of fixing the compensation, withholding the
same, and recovering the same. A Postmaster General
having allowed the commissions, he cannot recover the
same without due process of law. United States vs. Case,
49 Federal, 270; United States vs. Hutcheson, 39 Fed-
eral, 540; United States vs. Miller, 8 Utah, 29.

The Postmaster General may determine, under the ar-
bitrary power given him, what is right and reasonable in
the matter of compensation, when the false return has
been made. United States vs. Joedicke, 73 Federal, 100. A
certified copy of an order of the Postmaster General to
recover money against a postmaster for false returns, is
prima facie evidence of the fact of such falseness. United

216 Federal Criminal Law Procedure.

States vs. Dumas, 149 U. S., 283; Joedicke vs. U. S., 85
Federal, 372; U. S. vs. Carlovitz, 80 Federal, 852; U. S.
vs. Case, 49 Federal, 270; U. S. vs. McCoy, 193 U. S., 599.

65 a. Acquittance No Bar to Civil Suit.

It was held in Sanden vs. Morgan, 225 F. 266, that an
acquittal upon an indictment charging a fraudulent use
of the mail was not res adjudicata as to a civil cause.

§ 66. Collection of Unlawful Postage. — Closely akin
to the foregoing section, and for the protection of the
public, both in the way of extortion and to insure uniform
service, is Section 207 of the new Code, which reads as
follows:

"Whoever, being a postmaster or other person authorized to receive
the postage of mail matter, shall fraudulently demand or receive any
rate of postage or gratuity or reward other than is provided by law
for the postage of such mail matter, shall be fined not more than one
hundred dollars, or imprisoned not more than six months, or both."

It is a practical re-enactment of the old Section 3899,
with the exception that the new section increases the
punishment by adding the imprisonment feature. It is
also more wholesale in its terms, since it uses the word
"mail matter" while the old section used the words "let-
ters. ' '

§ 67. Unlawful Pledging or Sale of Stamps. — To fur-
ther guarantee uniformity in the service and one price to
all, and to conserve the government property and prevent
its use by its officials, and to restrict the salary of the
Postmaster or other person employed in the post-office
within the limits of that fixed by law. Congress passed
old Section 3920 of the Revised Statutes, and later an
addition at page 141 of the 20 St. L., both of which acts
are now included in the new Section 208, in the following
words:

"Whoever, being a postmaster or other person employed in any branch
of the postal service, and being intrusted with the sale or custody of
postage stamps, stamped envelopes or postal cards, shall use or dispose
of them in the payment of debts, or in the purchase of merchandise
or other salable articles, or pledge or hypothecate the same, or sell
or dispose of them except for cash; or sell or dispose of postage
stamps or postal cards for any larger or less sum than the values in-

Postal Crimes. 217

dicated on their faces; or sell or dispose of stamped envelopes for a
larger or less sum than is charged therefor by the Postoffice Depart-
ment for like quantities;) or sell or dispose of, or cause to be sold
or disposed of, postal stamps, stamped envelopes, or postal cards at
any point or place outside of the delivery of the office where such
postmaster or other person is employed; or induce or attempt to
induce, for the purpose of increasing the emoluments or compensation
of such postmaster, or the emoluments or compensation of any other
person employed in such post-office or any station thereof, or the
allowances or facilities provided therefor, any person to purchase at
such post-office or any station thereof, or from any employee of such
post-office, postage -stamps, stamped envelopes, or postal cards; or
sell or dispose of postage stamps, stamped envelopes, or postal cards,
otherwise than as provided by law or the regulations of the Post-office
Department, shall be fined not more than five hundred dollars, or
imprisoned not more than one year, or both." '

Under the provisions of this section, the indictment
must allege, and the facts must show, that the stamps
used by the postmaster had been received by him officially
from the government, because the use of tamps by a post-
master procured from another source, is not prohibited
by the statute, as the word "intrusted" is used with
reference to the sort of stamps protected by the Act.
United States vs. Williamson, 26 Fed., 690. The new sec-
tion is as strong in its inhibition against the use of
stamps by a postmaster in the payment of merchandise,
even though he place the money value of the stamps in
the till of the post-office. In United States vs. Douglas,
33 Fed., 381, the Court in charging the jury, said:

"The defendant, testifying on his own behalf, admitted that he had
used stamps on several occasions in paying for merchandise and re-
mitting money for the purpose of making change. He says that he
did this not dreaming that it was wrong, and that in every instance
he put the money value of the stamps so used in the till of the post-
office; in fact, thus purchasing the stamps from himself. The Act of
Congress forbids any disposition by a postmaster of stamps intrusted
to him, except the sale of them at their face value for cash to third
persons. He cannot use them in purchase of goods, or in payment of
debts nor can he purchase them from himself for any such purpose.
By his own admission, therefore, he has violated the law, and if you
believe him, you must find him guilty on the indictment."

In Palliser vs. United States, 136 U. S., 267; 34 Law
Ed., 514, the Supreme Court of the United States, speak-

218 Federal Criminal Law Procedure.

ing through Mr. Justice Gray, held that the word "cash"
in the Act forbidding a postmaster to sell or dispose of
postage stamps except for cash, means ready money or
money in hand. A sale on credit is not a sate for cash.
That case further determines that an offer to a post-
master, promising him that if he would put postage
stamps on certain circulars and send them at the rate of
fifty to one hundred, that the writer would remit to him
the price of the stamps, that such an offer was the tender
of a contract for the payment of money to induce the
posmaster to sell stamps on credit, in violation of his
lawful duty, and that an offer of a contract to pay money
to a postmaster for an unlawful sale by him of postage
stamps on credit is not the less within the statute, (the
Court was then considering Section 5451 of the old Re-
vised Statutes), because his commission on the sale
would be no greater than upon a lawful sale for cash. In
United States vs. Walter Scott Stamp Company, 87 Fed-
eral, 721, Circuit Judge Lacombe, in passing upon a civil
action of replevin brought by the government against a
concern that had in its possession a great number of
stamps, decided that the possession of stamps by persons
outside of and unconnected with the Post-office Depart-
ment is not presumptively unlawful.

§ 67a. Receiving Stolen Property, Etc. — See Section
74_Section 48 of the Act of March 4, 1909, 35 Stats.,
1098, page 1603, 1911 Supp. Compiled Statutes, pro-
vides: "Whoever shall receive, conceal, or aid in con-
cealing or shall have or retain in his possession with
intent to convert to his own use or gain any money, prop-
erty, record, voucher, or valuable thing whatever of the
moneys, goods, chattels, records or property of the Unit-
ed States which has theretofore been embezzled, stolen or
purloined by any other person, knowing the same to have
been so embezzled, stolen or purloined, shall be fined not
more than five thousand dollars or imprisoned not more
than five years, or both; and such person may be tried
either before or after the conviction of the principal of-
fender. ' '

Postal Crimes. 219

The Court of Appeals for the Eighth Circuit, speaking
through Judge McPherson, in Naftzger vs. U. S., 200
Fed. 497, in reversing a conviction under this statute,
determined that inasmuch as an allegation in the indict-
ment that the stamps had been stolen from the United
States was necessary to give a United States court juris-
diction, there must be some substantial proof offered to
establish this fact, and that hearsay testimony of post-
office inspectors would not meet the required measure.
The allegation in that case on this particular point was
that the stamps had been stolen from post-offices in Kan-
sas, the exact names of which were to the grand jurors
unknown, and the Court held that this allegation having
been made, it was necessary to prove it.

It was further held in this case that a conviction upon
extrajudicial confession or acts or declarations of a per-
son will not be sustained without corroborative proof
that the property was in fact stolen.

It is improper to admit testimony of post-office inspec-
tors that a number of post-offices had been burglarized,
for the purpose of showing the theft of postage stamps,
even though such testimony is limited by the Court's
charge to the issue of defendant's knowledge and the
case of Grayson vs. Lynch, 163 U. S., 468, does not state a
rule of criminal law. Naftzger vs. U. S., 200 Federal, 500.

§ 68. Failure to Account for Postage and to Cancel
Stamps. — Section 209 of the new Code, reading as fol-
lows:

"Whoever, being a postmaster or other person engaged in the postal
service, shall collect and fail to account for the postage due upon any
article of mail matter which he may deliver, without having previously
affixed and canceled the special stamp provided by law, or shall fail
to affix such stamp, shall be fined not more than fifty dollars."

relates evidently only to what is commonly known as
special or due postage. It was originally a part of the
Act of March 3, 1879, as shown at page 249 of the First
Volume of the Supplement, and was Section 27 of that

Act.

§ 69. Issuing Money Order Without Payment.— Sec-
tion 210 of the new Code reads as follows:

220 Fkderal. Criminal Law Procedure.

"Whoever, being a postmaster or other person employed in any
branch of the postal service, shall issue a money order without having
previously received the money therefor, shall be fined not more than
five hundred dollars."

The only difference between it and 4030 of the Revised
Statutes, which was directed at the same offense, is that
the new Code contains no minimum fine, and does not
denounce the offense as a misdemeanor. In view of the
lightness of the punishment and the dire consequences of
issuing money orders without having received the money
therefor, it is believed that Section 210 was intended
merely for the punishment of postal employees who
through negligence, and not by reason of any fraudulent
design, issue a money order without previously having
received the money therefor. Practically the entire mon-
ey-order funds of the government are at the disposal
of each employee who has authority to issue money-
orders, and a punishment so light as that affixed under
this section would be entirely disproportionate to the
grievousness of the offense, and all fraudulent issues,
therefore, of money orders, by postal employees, should
or may be prosecuted under Section 218 of the new Code,
as they were under 5463 of the old statutes and amend-
ments thereto.

§ 69a. Conviction Under One Statute No Bar, When.
— A conviction under Section 210 would not be a bar to
a conviction under Section 218 which follows, for the
reason that where an offense is in violation of two differ-
ent statutes, and a different proof is required to convict
under one, different elements or grounds being involved
in each, a conviction or acquittal under one statute is
not a bar to a prosecution under the other. U. S. vs.
Komie, 194, Federal 567; Carter vs. McClaughry, 183 U.
S., 365; Barton vs. IT. S., 202 U. S., 344; Gavieres vs. U.
S., 220 U. S., 338.

§ 70. Counterfeiting Money Orders, Etc., and Fraudu-
lently Issuing the Same Withou't Having Received the
Money Therefor. — Section 218 of the new Code embraces
all the features of 5463 of the old statute, the Act of the
third of January, 1887, First Supplement, 518, and the

Postal Crimes. 221

Act of the eighteenth of June, 1888, First Supplement,
593, and reads as follows:

"Whoever, with intent to defraud, shall falsely make, forge, counter-
feit, engrave, or print, or cause or procure to be falsely made, forged,
counterfeited, engraved or printed, or shall willingly aid or assist in
falsely making, forging, counterfeiting, engraving or printing, any
order in imitation of or purporting to be a money order issued by
the Post-office Department, or by any postmaster or agent thereof; or
whoever shall forge or counterfeit the signature of any postmaster,
assistant postmaster, chief clerk, or clerk, upon or to any money
order, or postal note, or blank therefor provided or issued by or under
the direction of the Post-office Department of the United States, or of
any foreign country, and payable in the United States, or any material
signature or endorsement thereon, or any material signature to any
receipt or certificate of identification thereon; or shall falsely alter
or cause or procure to be falsely altered in any material respect, or
knowingly aid or assist in falsely so altering any such money order
or postal note; or shall, with intent to defraud, pass, utter, or publish
any such forged or altered money order or postal note, knowing any
material signature or endorsement thereon to be false, forged, or
counterfeited, or any material alteration therein to have been falsely
made;) or shall issue any money order or postal note without having
previously received or paid the full amount of money payable therefor,
with the purpose of fraudulently obtaining or receiving, or fraudulently
enabling any other person, either directly or indirectly to obtain or
receive from the United States or any officer employed, or agent there-
of, any sum of money whatever; or shall with intent to defraud the
United States or any person, transmit or present to, or cause or pro-
cure to be transmitted or presented to, any officer or employee or at
any office of the' government of the United States, any money order or
postal note, knowing the same to contain any forged or counterfeited
signature to the same, or to any material endorsement, receipt, or
certificate thereon, or material alteration therein unlawfully made, or
to have been, unlawfully issued without previous payment of the
amount required to be paid upon such issue, shall be fined not more
than five thousand dollars, or imprisoned not more than five years,
or both."

An indictment under the forging or counterfeiting fea-
ture of this section must contain no incompatibility of
purport and tenor clauses, and it is decidedly the safer
plan for the bill to set out in haec verba the instrument,
and the pleader must take careful notice that the instru-
ment so set out does not differ in any respect from that
portion of the bill giving the purport of the forged in-
strument.

222 Federal Criminal Law Procedure.

The old Common Law rule that a fictitious name could
not be subject to forgery, for the reason that there would
be no one to be defrauded, has a marked exception under
this statute. In ex parte Hibbs, 26 Federal, 421, which
was a case that arose by reason of a postmaster issuing a
money order on the application of a fictitious person pay-
able to a certain bank, to which he at the same time wrote
in the name of such person, directing that the amount of
the order be collected and remitted to him in a registered
package, which he intercepted as it passed through his of-
fice, converting the contents to his own use, the Court
held that the Act of the postmaster constituted forgery,
both at Common Law and under the statute, to wit, 5463.

In United States vs. Eoyer, 122 Federal, 844, the gov-
ernment elected to prosecute a clerk in a post-office au-
thorized to issue money orders, who had issued money
orders in payment of his private debts, under Section
4046 of the Revised Statutes, for an embezzlement of
money order funds. Clearly, he was also guilty of a
violation of Section 5463, after having issued the orders
without first having received the money therefor, but the
decision of the Court in that case shows to what extent
an employee empowered to issue money orders may dep-
redate upon the Government funds. In Vives vs. United
States, 92 Federal, 355, Judge Pardee, speaking for the
Circuit Court of Appeals for the Fifth Circuit, with ref-
erence to the defendant's use of money order funds by
drawing money orders without previously receiving the
money therefor, and which was a prosecution for em-
bezzlement under 4046, said that the intention of the
employee to return the money to the Government when
a settlement of his account would have been due was no
defense under the law. In United States vs. Long, 30
Federal, 678, Judge Speer, in charging the jury, said that
forgery, being the fraudulent making or alteration of a
writing to the prejudice of another man's right, and that
one may be guilty of such forgery if he fraudulently signs
his own name, although it is identical with the name of
the person who should have signed. He further holds in
the same case that the signature to a receipt on a money
order is a material signature in the meaning of the law.

Postal Crimes. 223

It may be here remarked that that portion of the stat-
ute which relates to the forgery of a material endorse-
ment or signaure to a money order or any receipt thereon,
is the portion of the law most frequently violated.

It must be continually borne in mind that the indict-
ment must charge, and the proof must show that the forg-
ery or other acts committed under this section were
so committed with the intention to defraud. In
United States vs. Morris, 16 Blatchf. (United States),
133, 26 Federal Cases No. 15813, the Court held that even
though an indictment charged the defendant with having
forged a material endorsement upon a post-office money-
order with the intent to defraud a certain private person,
the same was sufficient, because it was still an act which
the United States had the authority to punish, for the
better protection of money orders lawfully issued by the
United States.

Judge Thayer, in United States vs. Crecilius, 34 Fed-
eral, page 32, said that the word "alter," as used in this
statute, described an act or acts not distinctly covered or
embraced by any preceding word.

Under the statute as it is now drawn, there is prac-
tically no act, alteration, erasure, or change that can be
made to a money order with fraudulent intent that is not
by some of the terms of the statute fitted with the mean-
ing of the same.

See Sections 69 and 69a. Also U. S. vs. Komie, 194
Federal, 567.

§ 71. Counterfeiting Postage Stamps, Domestic or
Foreign. — Sections 5464 and 5465 of the old statutes pro-
tected from forging and counterfeiting the stamps and
envelopes and other output of the Post-Office Department
which were for the purpose of paying postage, whether
of this or a foreign country. These two statutes with
some change in punishment, have become Sections 219
and 220 of the new Code, and they read as follows :

"Sec. 219. Whoever shall forge or counterfeit any postage stamp or
any stamp printed upon any stamped envelope or postal card, or any
die, plate, or engraving therefor; or shall make or print, or know-
ingly use or sell, or have in possession with intent to use or sell, any
such forged or counterfeited postage stamp, stamped envelope, postal

224 Federal Criminal Law Procedure.

card, die, plate, or engraving; or shall make or knowingly use or
sell, or have in possession with intent to use or sell, any paper bearing
the water-mark of any stamped envelope, or postal card, or any fraud-
ulent imitation thereof; or shall make, or print, or authorize or pro-
cure to be made or printed, any postage stamp, stamped envelope, or
postal card of the kind authorized and provided by the Post-office
Department, without the special authority and direction of said De-
partment; or shall, after such postage stamp, stamped envelope,
or postal card has been printed, with intent to defraud, deliver the
same to any person not authorized by an instrument in writing duly
executed under the hand of the Postmaster General and the seal of the
Post-office Department, to receive it, shall be fined not more than five
hundred dollars, or imprisoned not more than five years, or both.''

"Sec. 220. "Whoever shall forge, counterfeit, or knowingly utter or
use any forged or counterfeited postage stamp of any foreign govern-
ment, shall be fined not more than five hundred dollars, or imprisoned
not more than five years, or both."

It will be observed that each of the sections fails to in-
clude any word with reference to intent, and in the ab-
sence of any such word, and under the authority of United
States vs. Coppersmith, 4 Federal, 198, and United States
vs. Field, 16 Federal, 779, it would seem that an indict-
ment does not have to charge fraudulent intent in alleg-
ing the ingredients of a counterfeiting or forging charge.
It is quite apparent that the observations in the two cases
just, cited that these offenses are not felonies, by reason of
the repeal of the old statute, when the Act of June 8,
1872, became effective, is forceless under the new sec-
tions, because the new Code itself denominates all offenses
felonies where the punishment may be confinement for a
vear.

Notwithstanding the severity of the punishment and
the meaning usually given to the words "counterfeit" or
"forge" in criminal statutes, which invariably implies
venality and corruption, the language of these sections
would seem to indicate that it was the intention of Con-
gress to so denounce in definition, and by severe punish-
ment, and to prevent, if possible, even experimenting in
the reproduction of facsimiles of postage stamps, envel-
opes, cards, etc., like those made by the Government, be-
cause it may be argued that no one would trouble himself
to facsimile such a small article, unless he intended to

Postal Ceimes. 225

work injury. On the other hand, this may be one of those
statutes in which Congress has neglected to include all
of the elements of the offense, and it thereupon devolves
upon the pleader to draw his bill sufficiently broad to
define the offense, even though the statute does not do so.
§ 72. Misappropriation of Postal Funds or Property
by Use or Failure to Deposit.— Section 225 of the new
Code, reads as follows:

Whoever, being a postmaster or other person employed in or con-
nected with any branch of the postal service, shall loan, use, pledge,
hypothecate, or convert to his own use, or shall deposit in any bank
or exchange for other funds or property, except as authorized by law,
any money or property coming into his hands or under his control,
in any manner whatever, in the execution or under color of his office,
employment, or service, whether the same shall be the money or
property of the United States or not; or shall fail or refuse to remit
to or deposit in the Treasury of the United States, or in a designated
depository, or to account for or turn over to the proper officer or
agent, any such money or property, when required so to do by law or
the regulations of the Post-office Department, or upon demand or order
of the Postmaster General, either directly or through a duly author-
ized officer or agent, shall be deemed guilty of embezzlement and
every such person, as well as every other person advising or know-
ingly participating therein, shall be fined in a sum equal to the amount
or value of the money or property embezzled, or imprisoned not more
than ten years, or both. Any failure to produce or to pay over any
such money or property, when required so to do as above provided,
shall be taken to be prima facie evidence of such embezzlement and
upon the trial of any indictment against any person for such embez-
zlement, it shall be prima facie evidence of a balance against him to
produce a transcript from the account books of the Auditor for the
Post-office Department. But nothing herein shall be construed to
prohibit any postmaster depositing, under the direction of the Post-
master General, in a national bank designated by the Secretary of
the Treasury for that purpose, to his own credit as postmaster any
funds in his charge, nor prevent his negotiating drafts or other evi-
dences of debt through such bank, or through United States disbursing
officers or otherwise, when instructed or required so to do by the
Postmaster General for the purpose of remitting surplus funds from
one postoffice to another."

It supplants and takes the place of 4046 and 4053, Ee-
vised Statutes of 1878. The prosecution frequently com-
prised in one indictment against the same defendant vio-
lations of the two old statutes, laying a count under 4046

226 Federal Criminal Law Procedure.

and then a count under 4053. These statutes are for the
purpose of affording another guaranty that the govern-
ment shall take no chances whatever in the result of the
judgment of its employees. A postmaster or a postal
employee may be honest, and intend to only temporarily
use the funds that belong to the Government which are
in his custody or possession, but such honest intent with
reference to the subsequent replacing is no protection
against prosecution under this statute. Any use or ap-
propriation or the failure to deposit, as required by the
regulations, constitutes embezzlement within meaning of
this section. The Act not only protects money, but it
likewise protects any property that may belong to the
Postal Department.

The law of embezzlement is statutory. It originated
in a bungling attempt to amend the Common Law of lar-
ceny, and is indeed a sort of statutory larceny. The
methods of use or appropriation, therefore, denounced in
the statute, are sufficient to describe this particular stat-
utory embezzlement. In United States vs. Gilbert, 25
Federal Cases No. 15205, the Court used the following
language:

"It is evident that an embezzlement such as is contemplated by this
section may be proved in either one of two ways: first, by showing
that in point of fact the postmaster has converted to his own use
money order funds;) second, by his failure to pay over such funds
when required either by the law or regulations, or when demand is
made by an officer authorized for that purpose — Although it is true
that the funds were subsequently paid into the post-office, and although
it may also be, and probably was, true that these funds, when thus
converted, were intended and expected to be replaced, so that the
Government should sustain no loss, which goes very far toward
mitigating the offense, yet it is obvious that the enforcement of this
section in all its strictness is essential to this class of government
funds, and to the discouragement of postmasters from even temporarily
using them for private purposes. The intention of replacing them,
however honestly entertained, cannot be accepted as an excuse or
apology for violating the law, as one may be disappointed by un-
expected circumstances, and thus not only endanger the moneys of
the Government, but involve himself in difficulty and criminal pros-
ecution. The law intends that funds of this character should be kept
absolutely separate and sacred, as the best method, not only of keeping
the funds themselves secure, but of guarding the officers themselves

Postal Ceimes. 227

from temptation and delinquency. A diversion of money order funds
in any way whatever prohibited by this section, or for any time, how-
ever short, constitutes embezzlement under this Act."

See also United States vs. Royer, 122 Federal, 844,
which applied the doctrine of refusing to permit the post-
al employee to use Government money order funds in
the payment of private debts by issuing money orders
upon blanks in the employee's possession; also Vives vs.
United States, 92 Federal, 355. The indictment, under
this section, must allege that the funds were intrusted
to the employee, so as to show the fiduciary capacity. U.
S. vs. Royer, 122 Federal, 844. It will be noticed that the
Act provides that a transcript from the account books of
the Auditor for the Post-office Department, showing a
balance against the officer, shall be prima facie evidence
of such embezzlement. This provision, while seemingly
harsh, is salutary; for otherwise, the officer could con-
tend that as a matter of fact there was no balance against
him, during which period of ascertainment he could be
enjoying the use of the funds. In United States vs. Swan,
7 N. M., 311, that portion of the statute was held to be
constitutional, and the Court there held that this pro-
vision was not in conflict with that section of the Consti-
tution which provides that in all criminal prosecutions
the accused shall enjoy the right to be confronted with
the witnesses against him. See also Faust vs. United
States, 163 U. S., 454; 41 Law Ed., 224.

In an indictment against a public officer for embezzle-
ment of public funds alleged to have been in his posses-
sion as such officer, the rule applied that it is sufficient to
charge that he embezzled same, without more, see U. S.
vs. Mason, 179 Federal, page 552, which case also holds
bill sufficient which specifies amount of money and states
grand jury is unable to give further information of de-
scription.

In United States vs. Young, 25 Federal, 710, the Court
passes upon a state of facts, and concludes that they in-
dicate that the prisoner was an adroit criminal rather
than an insane man, and, therefore, fixed responsibility
upon him for the temporary use of Government money,

228 Federal Criminal Law Procedure.

under this statute. It must also be borne in mind that in
indictments under this section, against employees of the
postal service other than postmasters, it is not necessary
to allege nor to prove the want of consent of a postmaster
to the embezzlement of money order funds. Faust vs.
United States, 163 U. S., 454; 41 Law Ed., 224. It must
also be remembered that indictments under this section,
under the authority of Moore vs. United States, 160 IT.
S., 269; 40 Law Ed., 424, must allege that the funds came
into the possession of the defendant in his official charac-
ter and by virtue of such employment, and specifically set
out the sort of employment he was engaged in for the
Govrnment.

72 a. Indictment for Misappropriation of Postal
Funds, etc.

Foster vs. U. S., 256 F. 207; Ossendorf vs. U. S., 272
F. 257.

On a trial for a conversion it is improper to admit evi-
dence of failure to deposit, and a proper certificate must
be had from the postoffice department. Youmans vs. U.
S., 264 F. 425.

§ 73. Rural Carriers Responsible Under This Section.
— In United States vs. Mann, 160 Federal, 552, District
Judge Speer held that the post-office regulations author-
izing rural letter carriers to take and receipt for money
from patrons of their routes, to purchase and forward
money orders to the persons for whom they are. designed,
did not make the money so received and receipted for by
rural carrier from patrons of his route, to be used in the
purchasing and forwarding of money orders, while in the
possession of such carrier, and before surrender at the
post-office, "money order funds," for the embezzlement of
which the carrier could be prosecuted under Section 4046.
This was the construction placed upon the statute with
reference to embezzlements by rural route carriers by
many of the trial courts, though there was some differ-
ence of opinion. It became and was, however, very nec-
essary that such funds should be protected, and the pro-
vision in the new section which protects the money "or
property coming into his hands, or under his control in
any manner whatever, in the execution or under color of

Postal Crimes. 229

his employment or service, whether the same shall be the
money or property of the United States or not," clearly
protects all such funds, and gives to the statute a color
and meaning badly needed.

The reasoning with reference to allegations in the in-
dictment in Dimmick vs. United States, 121 Federal, 638,
though upon Section 5492 rather than the one under dis-
cussion, may be interesting, because under that statute,
similarly worded, the Circuit Court of Appeals for the
Ninth Circuit held that the jury must find, in order to
convict the defendant, that the failure to deposit was in-
tentional and wilful, and that these words intentional and
wilful must be read into the statute.

§ 74. Stealing Post-office Property. — Section 190 of
the new Code enlarges the punishment, and simplifies old
Section 5475, and reads as follows:

"Whoever shall steal, purloin, or embezzle any mail bag or other
property in use by or belonging to the Post-office Department, or shall
appropriate any such property to his own or any other than its proper
use, or shall convey away any such property to the hindrance or
detriment of the public service, shall be fined not more than two
hundred dollars, or imprisoned not more than three years, or both."

The indictment under this section simply contains the
ordinary elements for the charging of statutory theft, or
Common Law larceny. That portion of the statute which
relates to the use of any property demands in the bill of
indictment to properly plead the offense the use of the
word showing intent and wilfulness. An innocent use or
mistaken use under this section it is not thought would
be an offense. In United States vs. Yennie, 74 Federal,
221, the Court held that a count might be laid under this
Section and a count under 5478 in the same indictment,
without being duplicitous. See 67a.

§ 75. Other Offenses. — The new Code, in addition to
the offenses heretofore mentioned, creates and re-enacts
sections relating to the following:

Conducting Post-office without authority: Section 179,
old Eevised Statutes 3829.

Illegal carrying of mail by carriers and others: Section
180, old Section 3981.

230 Federal, Criminal Law Procedure.

Conveyance of mail by private express forbidden: Sec-
tion 181, old Section 3982.

Transporting persons unlawfully conveying mail: Sec-
tion 182, old Section 3983.

Sending letters by private express: Section 183, old
Section 3984.

Conveying of letters over post roads: Section 184, old
Section 3985.

Carrying letters out of the mail, on board a vessel: Sec-
tion 185, old Section 3986.

When conveying letters by private person is lawful:
Section 186, old Section 3987.'

Wearing Uniform of carrier without authority: Sec-
tion 187, old Section 3867.

Vehicles, etc., claiming to be mail carriers: Section 188,
old Section 3979.

Deserting the mail: Section 199, old Section 5474:

Delivery of letters by master of vessel: Section 200, old
Section 3977.

Vessels to deliver letters at post-office; oath: Section
204, old Section 3988.

Letters carried in a foreign vessel to be deposited in a
post-office: Section 203; old Section 4016.

Using, selling, etc., canceled stamps, and removing can-
cellation marks from stamps, etc.: Section 305; old Sec-
tion 3922, 3923, 3924, and 3925.

Poisons and explosives non-mailable: Section 217, Old
Section 3878; First Supplement, 247, and Second Supple-
ment, 507.

Enclosing higher class in lower class matter: Section
221, old Section 3887 and First Supplement, 578.

Postmaster illegally approving bond, etc.: Section 222,
old Section 3947 and First Supplement, 45.

False evidence as to second-class matter: Section 223,
old Section, First Volume Supplement, 593 and 33 St. L.,
823.

Inducing or prosecuting false claims: Section 224.

Employees not to become interested in contracts: Sec-
tion 226; old Section 412.

Fraudulent use of official envelopes: Section 227; old
Acts, First Supplement, 135 and First Supplement, 467.

Postal Crimes. 231

Fraudulent increase of weight of mail: Section 228, old
Act, Second Supplement, 778 and 30 St. L., 442.

Offenses against foreign mail in transit: Section 229;
old statute 4013.

§ 75a. Mail— Carrying Illegally.— Section 3985 of the
1878 Revised Statutes and Section 184 of the new code
prohibit the conveying of letters over and along post
roads. These inhibitions, however, do not prevent the
carrying of letters over a post road when such letters re-
late to the business of the carrier only. U. S. vs. Erie
Ry. Co., 235 U. S. 513, November Term, 1914. See also
Section 75 and the statutes therein cited bearing upon the
post-office business. The government controls exclusive-
ly such business and by various statutes protects such
monopoly.

75 b. Poison, etc.,

Poison and explosives are non-mailable, see section 217
of the 1910 Code and section 3878 of the old revised stat-
utes.

In Murray vs. U. S. 247 F. 874, it was held that an
indictment which shows the condition of the statute is
sufficient to charge this offense.

75 b. b. Advertising or soliciting for Liquor Sales.

By the Act of Mar. 3, 1917, Sec. 9915, Barnes Fed. Code,
1919, it was provided that no letter, postal card, circular,
newspaper, pamphlet or publication of any kind contain-
ing any advertisement of spirituous, vinous, malted, fer-
mented, or other intoxicating liquors of any kind, or
containing a solicitation of an order, or orders for said
liquors, or any of them, shall be deposited in or carried
by the mails of the United States or delivered, etc., and
provides for a thousand dollar fine or six months im-
prisonment, or both.

CHAPTER IV A.

PRACTICE HELPS.

§ 75. c. Admiralty Rules.
75.cc. Court Cannot Instruct Verdict of Guilty.
75.C.C.C. Alibi.
75. d. Alien Property Act.

75.d.d. U. S. May Appeal Criminal Case, When.
75.d.d.d. Arrest of Judgment.
75. e. Army and Navy.
75.e.e. Adulterated Butter.
75.e.e.e. Bawdy House.
75.f. Child Labor Law.
75.f.f. Clayton Act.
75.f.f.f. Common Law Offenses.
75.g. Corpus Dilicti.
75.g.g. Counsel-Advice.
75.g.g.g. Costs in Criminal Case.
75. h. Cross Examination.
75.h.h. Decoys-Entrapment.
75.h.h.h. Demand on Deft, for Evidence.
75. i. Demurrer to Evidence.
75.j. Date-In Indictment.
75.j.j. Duress.
75.j.j.j. Eight Hour Law.

75.j.j.j.j. Federal Employees Injured and Compensated.
75. k. Entrapment-Inducement.
75.k.k. Expert Testimony.
75.k.k.k. Exceptions — Indictment.

75.k.k.k.k. Indictment-Information-Exceptions Continued.
75.1. Free Speech.
75.1.1. Habeas Corpus.
75.1.1.1. Hepburn Act.
75.m. Income Tax. .
75.m.m. Argument-Improper.
75.m.m.m. Injunction.
75.n. Criminal Intent.
75.n.n. Interest on Criminal Judgment.
75.n.n.n. Indians.

75. o. False Claims for Damages to Shipment.
75.0.0. Insanity-From Drugs or Liquor-Defense.
75.0.0.0. Court-Meaning.
75.p. Viruses-Serums, etc.
75. p.p. Public Lands.
75. p.p. p. Lever Act.
75. q. Letter Carriers.

232

Practice Helps. 933

§ 75.q.q. U. S. Marshal-Deputies, etc.
75.q.q.q. Memory Refreshing.
75.r. Mandamus-To Compel U. S. Court, etc.,
75.r.r. Motion to Quash.

75.r.r.r. Newspaper-Affidavit as to Circulation.
75.s. Passports.
75.s.s. Fraud Order.
75.s.s.s. Warrant Issued by President.
75.t. Prisoners.
75.t.t. Subpoena-Duces Tecum.

75.t.t.t. Regulations by Commissoner of Internal Revenue
75.u. Revenue Law-What Is?
75.u.u. Repeal of Act, Right to Prosecute.
75.u.u.u. Sale-What Is?
75.v. Seamen.
75.v.v. Immunity Promises.
75.v.v.v. Strikers.
75.w. Trading with the Enemy.
75.w.w. Suits vs. U. S.

75.w.w.w. Government Control of Transportation.
75.x. "Unknown"-In Indictment.
75.x.x. Venue.

75.x.x.x. State Courts-Jurisdiction.
75.y. Wife-Cannot be Witness for Husband.
75. z. Trial of Deft. While he is Serving Term of Imprisonment.

Sec. 75c. Admiralty Rules.

Imprisonment for debt is likewise abolished in the ad-
miralty court. Admiralty Rules, 267 F.

Sec. 75cc Court Cannot Instruct a Verdict of Guilty.

Even upon an agreed statement of facts the court is
not permitted to instruct the jury to bring in a verdict
of guily in a criminal case, Blair vs. U. S. 241 F. 217.

Sec. 75c. c.c. Alibi.

In a prosecution for conspiracy the immediate presence
of the defendant after the formation of the conspiracy is
not necessarv to render him guilty, Ding vs. U. S. 246 F.
80.

Sec. 75d. Alien Property Act.

The trading with the Enemy Act Oct. 6, 1917, passed
by Congress after the declaration of war with Germany,
was a valid exercise of the war power, Fischer vs. Pal-
mer, 259 F. 355.

Sec. 75d.d. Appeal.

234 Federal Criminal Law Procedure.

The United States may appeal in a criminal case, when
U. S. vs. Oppenheimer vs. U. S. Sup. Ct. Dec. 1916; U. S.
vs. Comyns, U. S. Snp. Ct. Jan. 1919.

Sec. 75d.d.d. Arrest of Judgment.

See. Andrews vs. U. S. 224 F. 418.

Sec. 75e. Army and Navy.

A person in custody for violation of the state law can-
not be released to enter the United States army although
subject thereto after his punishment is finished, ex parte
Callowav, 246 F. 263.

A minor will be released, when Rush 246 F. 172.

A minor may be released by a civil court before court-
martial charges begin, ex parte Avery, 235 F. 248.

For army laws see 239 F. 275.

Under the Act of 1916, the army age is eighteen years
and a sixteen year old boy may be re-taken by the par-
ents if no military offense has been committed, since
enlistment is not an offense under the above cases.

For a full discussion of the jurisdiction of the civil and
military courts see U. S. vs. Brown, 242 F. 983.

One over eighteen cannot be released, Reed vs. Cush-
man, 251 F. 872.

A person "attached to" the army is amenable to its
regulations, exparte Gerlach, 247 F. 616.

The action of the exemption board in classifying is fi-
nal, why and when 248 F. 141.

The forgery of a discharge from the army is a violation
of the Act of Mar. 4, 1917. For a full discussion of the
1917 draft act see the following cases; ex parte Cohen,
245 F. 667; Angelus vs. Sullivan, 246 F. 54; Arver vs.
U. S„ 245 U. S., 366; U. S. vs. Casey, 247 F. 362; U. S.
vs. Koop, 245 F. 871; U. S. vs. Baker, 247 F. 124; Pap-
pens vs. U. S., 252 F. 55; Sugar vs. U. S., 252 F. 79.

The selective act is constitutional, U. S. vs. Olson, 253
F. 232.

A "deserter" is one who is absent without leave and
with a manifest intention not to return, while a "strag-
gler" is one who is absent without leave, with the prob-
ability that he does not intend to desert but, if his absence
continues for ten davs, he becomes a deserter, Reed vs.
U. S., 252 F. 21.

Practice Helps. 235

Sec. 75e.e. Butter Adulterated.

For a discussion of the act of May, 1902, with reference
to adulterated butter see, Henningsen vs. Whaler, 238 F.
650.

Sec. 75e.e.e. Bawdy House.

For decisions under the war act relating to the main-
tenance and establishment of disorderly houses see Holmes
vs. U. S., 269 F. 489; Nakano vs. U. S., 262 F. 761; Pap-
pens vs. U. S., 252 F. 55; U. S. vs. Hicks, 256 F. 707;
Grancourt vs. U. S., 258 F. 25; Thaler vs. U. S., 261 F.
746. See also U. S. vs Casey, 247 F. 362; Brown vs. U.
S. 260 F. 752; Anzine vs. U. S., 260 F. 827; Goublin vs.
U. S. 261 F. 5; Pollard vs. U. S., 261 F. 336; McKnight
vs. U. S., 249 U. S., 614.

Sec. 75f. Child Labor Law.

The Act of Sep. 1, 1916, C. 432, 39 Stat. 675, was de-
clared unconstitutional by the Supreme Court of the
United States of June 3, 1918, in the case of Hammer vs.
Dagenhart.

Sec. 75ff. Clayton Act.

See monopoly; trust statute; Sherman law.

For a decision drawing distinction between agencies
and sale see Curtis Publishing Company vs. Fed. 270 F.
881; strikes, boycott and injunction in re Duplex 252 F.
722; patents, etc., U. S. vs. United Shoe 264 F. 138.

A contract for exclusive sale is a violation, Standard
vs. Magrane 254 F. 493; the agricultural exceptions of
the act are construed in U. S. vs. King, 250 F. 908. A
contract between the publisher and district agent for
exclusive handling of publications is not a violation, Pic-
torial vs. Curtis Publishing Company, 255 F. 206.

For indictment under this act see Boyle vs. U. S. 259 F.
803; Belfi vs. U. S. 259 F. 822.

Manufacturers binding agents as to re-sale is a viola-
tion, U. S. vs. Schrader, U. S. Sup. Ct, Rep, Mar. 1920, 40
Sup. Ct. Rep. 251.

A contract requiring a patent licensee to buy material
to make the machinery of the seller is not a violation,
Westinghouse vs. Diamond, 268 F. 121.

2«?6 Federal Criminal Law Procedure.

Labor unions have no right under the Clayton or Sher-
man Acts to boycott and restrain inter-state trade, Du-
plex vs. Deering, U. S. Sup. Ct. Jan. 1921, 41 Sup. Ct.
Eep. 172.

Sec. 75f.f.f. Common Law Offenses.

There are no common law offenses known to the Fed-
eral jurisdiction. There are only such Federal offenses
as have been created by Federal negation statutes, Ham-
burg vs. U. S. 250 F. 747; Couture vs. U. S. 256 F. 525.

Before a man can be punished his case must be plainly
and unmistakably within the statute said the Supreme
Court in U. S. vs. Lacker, 134 U. S. 624. An offense
which may be the subject of criminal procedure is an act
committed or omitted in violation of a public law either
forbidding or commanding it, U. S. vs. Eaton, 144 U. S.
677. There are no common law oifenses against the Unit-
ed States, U. S. vs. Britton, 108 U. S. 199; U. S. vs. Hud-
son, 7 Cranch, 32; Tenn. vs. Davis, 100 U. S. 257; Benson
vs. McMakon, 127 U. S. 457.

Sec. 75g. Corpus Delicti.

Judge Wade speaking for tke Circuit Court of Appeals
for tke 8th Circuit in Goff vs. U. S., 257 F. 294, held that,
"we do not hold that declarations of a party may not be
considered in finding the corpus delicti; but, standing
alone, they are insufficient, and other facts and circum-
stances cannot be said to be corroborative when they
point as directly to some other offense as they do to the
crime charged," see also Naftzger vs. U. S. 200 F. 494;
Chamberlayne, evidence, Sec. 1600.

Sec. 75g.g. Counsel — Advice.

In order that a defendant may justify himself by show-
ing that he acted on the advice of his attorney it must
appear that all of the acts which go to make up the
charged criminal offense must have been before the at-
torney when he gave the advice, Hardy vs. U. S., 256 F.
284.

It is a well settled rule that every one is presumed
to know the law and that one's ignorance of it furnishes
no exemption for his act. In Hoover vs. State. 59 Ala.
57; Weston vs. Com, 111 P. A. 251; State vs. Foster, 22
B. I. 163; U. S. vs. Anthony, 24 Fed. case, 14459, it was

Practice Helps. 237

held to be no defense that the defendant had been advised
by counsel that the law whose violation was alleged was
unconstitutional and it has been repeatedly held that on
a prosecution for bigamy or adultery that it is no de-
fense that the accused believed, on the advice of counsel,
that he had a right to marry, State vs. Goodenow 65 Me.
30; People vs. Weed, 29 Hun, 628; Medrano vs. State, 32
Tex. Crim. 214.

Further exceptions to this same rule are, a, where a
specific intention is essential, as where a person charged
with theft actually believed the property he took to be
his own, Com vs. Stebbins, 8 Gray, Mass, 492; People
vs. Husband, 36 Mich. 306. But ignorance of the law may
be considered a mitigation of punishment, see also fur-
ther discussion of the question in 12 Cyc. 156-160.
Sec. 75g.g.g. Costs in Criminal Cases.
Sec. 1014 provides that the cost of the preliminary
examination shall be at the expense of the United States.
The costs of the trial proper may be adjudged against the
defendant, as provided by Sec. 974, U. S. vs. Briebach,
245 F. 204.

Sec. 75h. Cross Examination.

The prosecution is bound by the answer of the defend-
ant as to a wholly collateral charge against him and may
not resort to the judgment roll to contradict him. Bill-
iard vs. U. S., 245 F. 837.

Cross examination may extend to the subject matter
inquired about on direct examination, 232 F. 444.

A defendant's failure to answer may be commented on,
Lemore vs. U. S., 253 F. 887.

In a criminal prosecution for, using the mails to de-
fraud, it was prejudicial error to permit counsel for the
government, on cross examination of defendant, to in-
quire as to the property he owned at the time of the al-
leged offense, and at the time of trial, Culver vs. U. S.,
257 F. 63.

Sec. 75h.h. Decoys— see Entrapment.
The employment of decoy letters by a government in-
spector is not an objection to a conviction for mailing
obscene matter, Price vs. U. S., 165 U. S. 311. See postal
violations.

238 Federal Criminal Law Procedure.

Where the deception, in the way of decoys or detec-
tives is of such character as to make it unconscionable
for the government to press its case it should prevent
prosecution, Goldstein vs. U. S. 813.

A defendant cannot be convicted of a crime which was
provoked or induced by a government officer or agent,
and which otherwise would not have been committed, U.
S. vs. Lynch, 256 F. 983.

Sec. 75h.h.h. Demand on Defendant for Evidence.

It is inexcusable misconduct for a prosecuting attorney
to make a demand on the defendant or his attorney in
the presence of the jury for the production of evidence
in the defendant's possession, Green vs. U. S. 266 F. 779;
Mc Knight vs. U. S., 122 F. 926; Heinze vs. U. S., 181 F.
322;- Trent vs. U. S., 228 F. 648; Watlington vs. U. S.,
233 F. 247. The trial court might remedy the wrong,
Chadwick vs. U. S., 141 F. 225; Dunlop vs. U. S., 165
U. S., 486. But the court must act promptly both by
chiding the prosecuting officer and by proper instruction
to the jury.

In the case of Bryant vs. U. S., 257 F. 383, the Court
of Appeals for the 5th Circuit held that where the prose-
cution traced, by the testimony, before the jury, the
documentary evidence into the hands of the defendant,
and then introduced secondary evidence, that such action
was not error, the District Judge having instructed the
jury to disregard such evidence. This ruling is danger-
ous in the judgment of the writer and is in violation of the
spirit of the constitution. No action should be permitted
which requires any sort of an explanation by the defend-
ant, nor, which calls the attention of the jury to the fact
that the defendant is not making an explanation. The
right of the defendant to stand as an innocent man until
he has been proven guilty is too sacred in this country to
permit it to be undermined or whittled away.

Sec. 75i. Demurrer to Evidence.

The proper practice with reference to the entry of a
demurrer to the testimony of the prosecution is outlined
in the following cases, Dernberger vs. B. & 0., 243 F. 21;
Lohman vs. Co., 243 F. 517; Rich vs. U. S., 271 F. 566.

Sec. 75j. Date — In Indictment.

Practice Helps. 239

Correct pleading requires a definite allegation as to
the date of the offense, but the prosecution is not bound
to prove the date as alleged, U. S. vs. Gaag, 237 F. 730;
Ledbetter vs. U. S., 170 U. S. 606; Firth v. U. S., 253 F.
37.

Sec. 75j.j. Duress.

In the case of Ford vs. U. S., 259 F. 553, the Circuit
Court of Appeals for the 8th Circuit speaking through
Circuit Judge Stone very properly held that where tes
tirnony vital to conviction is given under duress no con-
viction based thereon will be permitted to stand.

The courts cannot be too emphatic against the admis-
sion of such confessions of such testimony as may disclose
that it was the result of official oppression. As the coun-
try grows more populous and officers are less close to
the community we must be careful indeed that there are >
no official inquisitions for the alleged purpose of the en-
forcement of the law. A peace officer has no right to
intimidate, nor, to harm, nor, to punish, nor, to bear down
in any way upon a citizen for the pretended purpose of
securing testimony. The outrage, for such it is, is more
serious than at first impression one would think.

Sec. 75j.j.j. Eight Hour Law.

The Act of May 4, 1916, C. 109, 39 Stat. 61, provides cer-
tain penalties for violations of what is called the Adam-
son or Eight Hour Law on interstate railways.

''Any common carrier or any officer or agent thereof,
requiring or permitting any employee to go, be or remain
on duty in violation of the second section hereof shall
be liable to a penalty of not less than one hundred dollars
nor more than five hundred dollars for each and every
violation, to be recovered in a suit or suits to be brought
by the United States District Attorney having jurisdic-
tion in the localitv where such violation shall have been
committed. ' '

The act also provides "any person violating any pro-
vision of this act shall be guilty of a misdemeanor and
upon conviction shall be fined not less than one hundred
dollars and not more than one thousand dollars or im-
prisonment not to exceed one year, or both."

240 Federal Criminal Law Procedure.

The act also makes provision for appointment of a com-
mission and provision for no reduction in wages pending
a report and otherwise regulates the conduct of the labor
for such common carriers, Act. Sep. 3, 1916 C. 436, Sec. 1 ;
Sees. 8089-8096, Barnes 1919.

By the Acts of Aug. 1, 1892, C. 352, 27 Stat. 340 and
Mar. 3, 1913, C. 106, 37 Stat. 726, an eight hour day for
laborers and mechanics on government work is legislated.

Any government officer or agent is deemed guilty of
a misdemeanor who violates its provisions and shall be
punished upon conviction by fine not to exceed one thou-
sand dollars or by imprisonment for not more than six
months or by both fine and imprisonment, Barnes 1919
Fed. Code, pages 1945-1947.

75.jj.j.j. Federal Employees Injured and Compensat-
ed.

The Act of Sep. 7, 1916, provides compensation for dis-
ability or death of an employee resulting from a personal
injury sustained while in the performance of his duty as
an employee of the United States, but no compensation
shall be paid if the injury or death is caused by the wil-
full misconduct of the employee or by the employee's
intention to bring about the injury or death of himself or
of another or if intoxication is the proximate cause.

The act provides for an affidavit with reference to the
amount of wages and contains many other provisions and
then contains this section, "whoever makes, in any affi-
davit required under section 4, or in any claim for com-
pensation, any statement, knowing it to be false, shall be
guilty of perjury and shall be punished by a fine of not
more than two thousand dollars, or by imprisonment for
not more than one year, or by both such fine and im-
prisonment," Sec. 39, Act. Sep. 7, 1916, C. 458, 39 Stat.
749; page 1953, 1919 Barnes' Fed. Code.

Sec. 75k. Entrapment — Inducement.

The appointing of professional detectives and agents
and deputies and decoys in the securing of testimony
and conviction of persons who transgress the law has
very naturally, resulted in abuses by persons and the
courts have been compelled to refuse to permit convic-
tions to stand where the methods employed seemed to be

Practice Helps. 241

an entrapment of the citizen or the inducing of a citizen
to do the thing that the government was prosecuting him
for having done. The fact that a detective or other per-
son suspected that the defendant was about to commit a
crime and prepared for his detection, as a result of which
he was entrapped in its commission, is no excuse, if the
defendant alone conceived the original criminal design.
If, however, the prosecutor in setting his trap waives his
legal rights, as where he consented to the act, and the of-
fense required want of consent on his part, the prosecu-
tion will fail, 12 Cyc. 160, where many cases are cited
form many states. See Decoys.

See also Billingsley vs. U. S., 274 F. 86, which gives the
rule; U. S. vs. Eman, 271 F. 353; Butts vs. U. S., 273 F.
35; Peterson vs. U. S., 255 F. 433; Partan vs. U. S., 261
F. 515; Farley vs. U. S., 269 F. 721; Rothman vs. U. S.,
270 F. 31.

Sec. 75k.k. Expert Testimony.

The admissibility of expert testimony, as dependent on
the qualifications of the expert, is to be determined by
the trial judge, and its probative value is to be appraised
by the jury, U. S. vs. Fischer, 245 F. 477.

Sec. 75k.k.k. Exceptions — Indictment.

It is always the safest practice to negative the excep-
tions of a statute, even though, there might be a given
state of facts which would render it unnecessary, Young
vs. U. S., 249 F. 937; Krause vs. U. S. 267 F. 183; Roth-
man vs. U. S., 270 F. 31.

Sec. 75k.k.k.k. Indictment and Information.

An indictment need not negative the exceptions in the
statute. Especially is this true in view of section 32 of
the Act which provides that it shall not be necessary in
any indictment to include any defensive negative aver-
ments. Davis vs. U. S., 274 F. 928.

Sec. 751. Free Speech.

For discussion of the constitutional right, see Schaefer
vs. U. S., 40 Sup. Ct Rep. 259; Mar. 1, 1920; Seebach vs.
U. S. 262 F. 885.

Sec. 751.1. Habeas Corpus,

Issuance of by Federal court for an United States of-
ficer to the state court, see in re Beach, 259 F. 957.

242 Federal Criminal Law Procedure.

Sec. 751.1.1 Hepburn Act.

For an illustratve conspiracy to violate the Hepburn
Act see Dye vs. U. S., 262 F. 6.

Sec. 75m. Income Tax.

A false amended schedule is a violation, Levy vs. U. S.,
271 F. 942.

Sec. 75m.m. Argument — Improper.

See U. S. vs. Phelan, 252 F. 891. See Sec. 22.

Sec. 75m.m.m. Injunction.

A Federal court will not grant an injunction to stay the
taking of depositions, Stewart vs. Arthur, 267 F. 184.

The Federal court will grant an injunction to prevent a
United States Attorney from enforcing a void statute,
Lamborn vs. U. S., Attorney, 265 F. 944.

Sec. 75n. Criminal Intent.

The human way of charging the intent is from the act.
In Bentall vs. U. S., 262 F. 744, a divided Circuit Court
of Appeals held that such presumption is rebuttable,
where an act, to be criminal, must be knowingly and wil-
fully done, not only a knowledge of the act is implied, but
a determination, with a bad intent, to do it. The pre-
sumption of wrongful intent of a defendant, based upon
the natural result of his words or acts, is not conclusive,
but rebuttable, and this rebutting evidence may take the
form of testimony by defendant that he intended no such
results and an instruction in a criminal case, which stated
without qualification, that a man could not say that he
did not intend to do a certain thing, when such thing was
the natural result of his act, was held erroneous where a
specific intent was essential to the crime charged, and the
defendant testified that he did not have such intent.

In the chapter on National Banks, herein, will be found
a number of citations shedding additional light upon the
word wilfully and the presumption of the intent from
act itself.

Sec. 75n.n. Interest on Criminal Judgment.

Interest is not collectable on a criminal judgment, U. S.
vs. Jacob, 254 F. 714.

Sec. 75n.n.n Indian.

A homestead acquired by an indian on public land in
a state under the same homestead law is not land "re-

Practice Helps. 243

served for the exclusive use of the United

States," within Criminal Code, 272, and a Federal court
is without jurisdiction to try a criminal offense committed
thereon, U. S. vs. Lewis, 253 F. 469.

In a prosecution under Sec. 2139, declaring that any
person who shall sell intoxicants to any indian ward of
the government under the charge of an indian agent shall
be punished, it is no defense that the seller did not know
the purchaser was an indian ward of the government un-
der charge of an indian agent, the statute not using the
words "knowingly or wilfully" in connection with the
sale, and the seller is guilty, though he believed the pur-
chaser was a person of another race, Feeley vs. U. S., 236
F. 903.

See the following cases for introducing liquor into the
Indian Territory, Fielder vs. U. S., 227 F. 832; Tsabell
vs. IT. S., 227 F. 788.

Sec. 75o. False Claim for Damages to Shipment.

In a prosecution under the Act to Regulate Commerce
Feb. 4, 1887, C. 104, Sec. 10, Par. 3, 24 Stat. 382, as amend-
ed by the Act of Mar. 2, 1889, against a corporation for
fraudulent claim for injury to shipment, a corporate of-
ficer who signed letters making claims for injuries to a
shipment is entitled to testify as to his intent, it appear-
ing that the claims were prepared by his bookkeeper, for
the corporation could act only through is officers or
agents, and the intent of the officer is that of the corpora-
tion, Laser Grain Company vs. U. S., 250 F. 826.

The criminal portions of the act are as follows: —

"Sec. 2. False billing or classification by carrier or officer for trans-
portation of property at less than regular rates. Any common carrier
subject to the provisions of this Act, or, whenever such common
carrier is a corporation, any officer or agent thereof, or any person
acting for or employed by such corporation, who, by means of false
billing, false classification, false weighing, or false report of weight,
or by any other device or means, shall knowingly and wilfully assist,
or shall wilfully suffer or permit, any person or persons to obtain
transportation for property at less than the regular rates then estab-
lished and in force on the line of transportation of such common
carrier, shall be deemed guilty of a misdemeanor, and shall, upon con-
viction thereof in any court of the United States of competent juris-
diction within the district in which such offense was committed, be

244 Federal Criminal Law Procedure.

subject to a fine of not exceeding five thousand dollars, or imprison-
ment in the penitentiary for a term of not exceeding two years, or
both, in the discretion of the court, for each offense

"Sec. 3. Obtaining or attempting to obtain transportation for prop-
erty at less than regular rates, by false billing or classification or by
making false claim for damages. Any person, corporation, or company,
or any agent or officer thereof, who shall deliver property for trans-
portation to any common carrier subject to the provisions of this
Act, or for whom, as consignor or consignee, any such carrier shall
transport property, who shall knowingly and wilfully, directly or indi-
rectly, himself or by employe, agent, officer, or otherwise, by false bill-
ing, false classification, false weighing, false representation of the con-
tents of the package or the substance of the property, false report of
weight, false statement, or by any other device or means, whether with
or without the consent or connivance of the carrier, its agent, or officer,
obtain or attempt to obtain transportation for such property at less
than the regular rates then established and in force on the line of
transportation; or who shall knowingly and wilfully, directly or
indirectly, himself or by employe, agent, officer, or otherwise, by false
statement or representation as to cost, value, nature, or extent of
injury, or by the use of any false bill, bill of lading, receipt, voucher,
roll, account, claim, certificate, affidavit, or deposition, knowing the
same to be false, fictitious, or fraudulent, to contain any false, fictitious
or fraudulent statement or entry, obtain or attempt to obtain any allow-
ance, refund, or payment for damage or otherwise in connection with
or growing out of the transportation of or agreement to transport
such property, whether with or without the consent or connivance
of the carrier, whereby the compensation of such carrier for such
transportation, either before or after payment, shall in fact be made
less than the regular rates then established and in force on the line
of transportation, shall be deemed guilty of fraud, which is hereby
declared to be a misdemeanor, and shall, upon conviction thereof
in any court of the United States of competent jurisdiction within the
district in which such offense was wholly or in part committed, be
subject for each offense to a fine of not exceeding five thousand dollars
or imprisonment in the penitentiary for a term of not exceeding two
years, or both, in the discretion of the court: Provided, That the
penalty or imprisonment shall not apply to artificial persons."

The Supreme Court of the United States held that the
foregoing penal statutes apply to consignee as well as to
consignor, U. S. vs. Union Manufacturing Company, 240
U. S., 605.

Sec. 75o.o. Insanity — From Drugs or Liquor — De-
fense When.

Practice Helps. 245

In the case of Perkins vs. U. S., 228 F. 408, the Circuit
Conrt of Appeals for the 4th Circuit wrights interesting-
ly and learnedly concerning the defense of insanity to a
criminal prosecution when such insanity is the result of
voluntary intoxication or drunkness or delirium.

One may not hide behind a mental or physical condi-
tion produced by a voluntary use of intoxicants, and vet
being in that condition the law does not view with the
same degree of severity that it does when the doer is
sober and normal.

Sec. 75o.o.o. Court — Meaning of.

A trial by a court means by twelve men presided over
by a judge and the judge cannot be substituted during the
trial, and the judge must be present, Freeman vs. U. S.,
227 F. 732.

Sec. 75p. Viruses, Serum, etc.

The Act of 1902, 32 Stat. 728, C. 1378, Sec. 1, which
provides certain regulations for the sale, production,
labelling, and licensing of the sale of viruses, serums,
toxins, anti-toxins, etc., and provides:

"Any person who shall violate, or aid or abet in violating, any of
the provisions of the Act shall be punished by a fine not exceeding
five hundred dollars or by imprisonment not exceeding one year, or
by both such fine and imprisonment, in the discretion of the court,
Arts. 8354-8360 Barnes 1919 Fed. Code.

Sec. 75p.p. Lands — Public.

The attempting or pretending to sell public lands is
an offense under the Act of Feb. 23, 1917, and is punish-
able by fine not exceeding three hundred dollars, or by im-
prisonment for a term not exceeding one year, or by both
such fine and imprisonment, Sec. 10226A. of 1918 Com-
piled Statutes.

Sec. 75p.p.p. Lever Act.

The Act of Aug. 10, 1917, Sec. 4, as amended by the~\
Act of Oct. 22, 1919, Sec. 2, is unconstitutional because
it does not define the offense with sufficient certainty,
denounces the unjust and unreasonable charge, and, of
course, there is no standard as to what is unjust or as to
what is unreasonable, U. S., vs. Cohen, 264 F. 218; Hills-
boro vs. Knotts, 273 F. 221; 41 Sup. Ct. Rep. 298; Weeds

246 Federal Criminal Law Procedure.

vs. U. S. 41 Sup. Ct. Rep. 306; People vs. U. S., 271 F.
790.

Sec. 75q. Letter Carriers.

Letter carriers by virtue of their appointment from
the competitive classified list of the Federal Civil Sen ice
Commission, acquire rights which they cannot be de-
prived of without due process of law, and may not be
removed without a hearing on the charges, U. S. vs. Post
master, 221 F. 687.

Sec. 75q.q. United States Marshal — Deputies, etc.

For a discussion of appointment and removal see U. S.«
vs. Lapp, 244 F. 377.

Sec. 75q.q.q. Memory — Refreshing.

For a discussion of the rule in the Federal Court see
232 F. 444. Dewitt vs. Skinner; Bates vs. Breble, 151 U.
S., 149; Vicksburg vs. O'Brien, 119 U. S. 99; Putman vs.
U. S. 162 LT. S.

Sec. 75r. Mandamus — To Compel United States Court,
etc.

The Supreme Court of the United States will compel, by
mandamus, the judge of a Federal court to perform a
service which it is right and lawful should be performed;
as the breaking of a seal on evidence and documents, etc.,
ex parte Uppercu, 239 U. S., 435.

Sec. 75r.r. Motion to Quash.

The overruling of a motion to quash or the granting of
a motion to quash is in the discretion of the court, Wetzel
vs. U. S., 233 F. 984.

Sec. 75r.r.r. Newspaper.

A false affidavit as to the circulation is not an offense,
U. S. vs. Smith, 269 F. 191.

Sec. 75s. Passports.

The Act of June 15, 1917, creates certain offenses with
reference to passports, such as forgery or altering, Sec.
9767, Barnes Fed. Code, which provides a fine of one
thousand dollars and imprisonment of not more than
three years; and the making of false statements in an
application for a passport and the use of a passport be-
longing to another and forging or altering are punishable
by a fine of not more than two thousand dollars or im-

Practice Helps. 247

prisonment not more than five years, or both, 40 Stat.
227; See. 6991 Barnes Fed. Code,' 1919.

Sec. 75s. s. Fraud Order — By Postmaster General.

■

A fraud order may be reviewed, when unlawful. Masses
vs. Patten, 244 F. 535; Anderson vs. Patten, 247 F. 382.

Sec. 75s.s.s. Warrant Issued by the President.

The President may issue a warrant, when, Minotto ys.
Bradley, 252 F. 600.

Sec. 75t. Prisoner — Prisoners.

Place of confinement and change thereof, Keliher ys.
Mitchell, 250 F. 904; Whittaker ys. Brannan, 252 F. 556.

Sec. 75t.t. Subpoena Duces Tecum.

A subpoena duces tecum may issue in a criminal case,
when, 248 F. 137.

Sec. 75t.t.t. Regulations by Commissioner Internal
Revenue.

Certain regulations are not authorized and are invalid,
when, 238 F. 650.

Sec. 75u. Revenue Law — What Is.

Warren vs. Flower, 29 Fed. cases, 255; Ward vs. Con-
gress, 99 F. 598; Bryant vs. Robinson, 149 F. 321; 192
F. 596; 192 F. 583; 162 F. 937; 218 XL S. 517; page 378,
Sec. Series Words and Phrases.

Sec. 75u.u. Repeal of Act — Right to Prosecute.

De Four vs. IT. S., 260 F. 597.

Sec. 75u.u.u. Sale — What Is.

Scoggins vs. IT. S., 255 F. 825.

Sec. 75v. Seamen.

For a discussion of the Act of Mar. 4, 1915, and the
preceding acts relating to seamen and their offenses, etc..
see 233 F. 708, Hamilton vs. IT. S., 268 F. 15.

Must go to end of voyage though time under contract
has expired, 274 F. 691.

See. 75v.v. Immunity Promises.

The District Attorney should notify the other defend-
ants who may be jointly indicted of any immunity prom-
ise made by him to a co-defendant, 244 F. 140; a trade to
turn state's evidence made by a Collector of Internal
Revenue need not be followed by the District Attorney,
Gladstone vs. U. S., 248 F. 117." See Sec. 39 & 39a.

248 Federal, Criminal Law Proceduke.

Sec. 75v.v.v. Strikers.

See Clayton Act; 252 F. 722.

Sec. 75w. Trading with the Enemy Act.
See U. S. vs. Van Werkhoven, 250 F. 311; U. S. vs.
Welsh, 250 F. 309.

Sec. 75w.w. United States — Suits Against.

It is not a suit against the United States when the law
is invalid and an injunction is sought against the officer
who would enforce it, Hanna vs. Clyne, 263 F. 599.

Sec. 75w.w.w. Transportation — Government Control.

See Act of March 21, 1918, C. 11, for offenses and pun-
ishment for interfering with possession and use and em-
bezzlement, etc.

Sec. 75x. Unknown.

Use in indictment see Coffin vs. U. S., 156 U. S., 862;
Roberts vs. U. S., 248 F. 874; Feener vs. U. S., 249 F. 425.

Sec. 75x.x. Venue.

A change of venue on the ground of local prejudice is
within the sound discretion of the court, Stroud vs. U. S.,
251 U. S., 15; 40 Sup. Ct. Rep. 50.

An indictment must be found in the division of the dis-
trict where the offense was committed, U. S. vs. Chen-
nault, 230 F. 942; Yeates vs. U. S., 254 F. 60; Sec. 42
Judicial Code; U. S. vs. Lombardo; Brown vs. U. S.,
257 F. 46; Brown vs. U. S., 41 Sup. Ct. Rep. 501.

Sec. 75x.x.x. State Court — Jurisdiction.

The intent to deprive state courts of jurisdiction over
offenses must be claimed, Caldwell vs. Parker, U. S., Su-
preme Court, April 1920.

Sec. 75y. Wife — Cannot be Witness for Husband.

This doctrine was announced by the Supreme Court in
Jin Foey Moy vs. U. S., 41 Sup. Ct. Rep. 98; rule applies
to husband as well as wife, Adams vs. U. S., 259 F. 214.

Sec. 75z. Trial of Defendant While He is Serving a
Term of Imprisonment.

In ex parte Lamar, 274 F. 160, Circuit Judge Morton
held that a defendant who is serving a term of imprison-
ment for a criminal offense may be tried for another of-
fense and a judgment upon second conviction is not void
for uncertainty which provides that it shall begin to run
at the expiration of the first judgment.

CHAPTER V.

COUNTERFEITING AND OTHER OFFENSES AGAINST THE
CURRENCY COINAGE AND OTHER SECURITIES.

§ 77. Definition of Obligation and Other Securities.

78. Illustrative Cases.

78a. Using Plates, Having in Possession, Similitude, Unsigned Bank-
notes.

79. The Neall Case — Deheuns Case — Indictment, etc.

80. Forging or Counterfeiting U. S. Securities.

81. Forging or Counterfeiting U. S. Securities and National Bank-

notes.

82. Confederate Money; Likeness and Similitude.

83. Other Securities Including State Banknotes.

84. Allegation of Knowledge in Counterfeiting.
84a. Allegation of Knowledge Continued.

85. Description of Obligation or Counterfeit.

86. Circulating Bills of Expired Corporation.

87. Mutilating or Defacing National Banknote.

88. Imitating National Banknotes; Printing Advertisements There-

on.

89. Imitating U. S. Securities or Printing Advertisements Thereon;

Business Cards.

90. Notes Less Than One Dollar, Not to be Issued.

91. Counterfeiting Gold or Silver Coin or Bars.

92. Resemblance or Similitude.

92a. Resemblance or Similitude Continued; Jury Question.

92b. Advertisements — Like Coins, etc.

93. Counterfeiting Minor Coins.

94. Making or Uttering Coins in the Resemblance of Money.

95. Making or Issuing Devices of Minor Coins.

96. Statutes Relating to Coinage, Mutilation, Debasing, Counter-

feiting of Dies, Foreign Coins.
96a. Counterfeiting Dies, Hubs, Molds, etc.

97. Counterfeiting Obligations to be Forfeited.

98. Search Warrant in Aid of Above Statutes.

§ 77. By the terms of Section 147 of the new Code,
which is a substantial re-enactment of old Section 5413,
the words "obligation or other security of the United
States" are denned to mean all bonds, securities of in-
debtedness, national bank currency, coupons, United
States notes, Treasury notes, gold certificates, silver cer-
tificates, certificates of deposit, bills, checks or drafts for
money drawn by or upon authorized officers of the United

(249)

250 Federal, Criminal Law Procedure.

States, stamps and other representatives of value of
whatever denomination, which have been or may be is-
sued under any Act of Congress, and the words "gold
certificates" and "silver certificates" were not in the
old section.

When, therefore, in this chapter, or in any of the sec-
tions cited and treated, the words "obligation or other
security of the United States" are used, they will be un-
derstood to mean and include the securities above men-
tioned, and any other representatives of value issued by
authority of Congress. Judge Wheeler, in discharging
Houghton from the custody of the state officers, who held
him for violation of a state statute against counterfeiting,
held, 7 Federal, 657, that the bills issued by national
banks are securities of the United States, which Congress
has power to protect by punishing the counterfeiting of
them. He also held in the same case that the United
States, in pursuance of Constitutional and statutory law,
have the exclusive right to prosecute for counterfeiting
Federal obligations, even though there be a state statute
against the same offense, and that a Federal Court, will,
upon habeas corpus, discharge a defendant held by the
state authorities for the offense of counterfeiting. To
the same effect is the decision by the same judge in the 8
Federal, 897, ex parte Houghton. In United States vs.
Albert, 45 Federal, 552, Judge Pardee held that an indict-
ment which charged the defendant with uttering and
publishing a certain false, forged, and altered United
States Treasury Warrant, was insufficient to sustain a
verdict of guilty, when the evidence showed that the de-
fendant had really negotiated a genuine check, drawn by
an authorized officer of the United States upon an As-
sistant Treasurer, but had forged the endorsement of the
name of the payee. Of course, the indictment could have
been drawn so as to allege the forgery of the endorse
ment, which would have been entirely sufficient, under
the statute; but, inasmuch as the indictment charged the
whole instrument to be false and forged, the proof did
not sustain the charge, because, as a matter of fact, the
instrument itself was not forged, but genuine, the only
forged part being the endorsement.

CoTJNTEEFEITING, ETC. 251

The Circuit Court of Appeals for the Second Circuit, in
Krakowski vs. United States, 161 Federal, page 88, held
that it was not sufficient to warrant a conviction under
Section 5430, which makes it a criminal offense for any
person to have or retain in his control or possession
"after a definitive paper has been adopted by the Sec-
retary of the Treasury for the obligations and other se-
curities of the United States, any similar paper adapted
to the making of any such obligation or other security,
except under the authority of the Secretary of the Treas-
ury, or some other proper officer of the United States.' :
where the proof showed that the defendant had in his
possession paper which might be used to make counter-
feit obligations or securities. In other words, the Court
held that that portion of the section included as penal
having in possession without authority, of t lie distinctive
paper itself or of some paper adapted to the making of
Government obligations and securities. 5430, it will be

borne in mind, is

§ 78. New Section 150 upon which the following cases

may be cited:

United States vs. Williams, 14 Federal, 550.

United States vs. Smith, 40 Federal, 755.

United States vs. Stevens, 52 Federal, 120.

United States vs. Bamett, HI Federal, 369.

United States vs. Pitts, 112 Federal, 522.

United States vs. Conners, 111 Federal, 732.

§ 78a. Using Plates— Having in Possession Obliga-
tion Without Authority, Etc.— Similitude— Unsigned
Bank Notes.— Section 150 of the new Code providesas
follows: " Whoever having control, custody, or possession
of anv plate, stone, or other thing, or any part thereof,
from which has been printed, or which may be prepared
by direction of the Secretary of the Treasury for the
purpose of printing, any obligation or other security of
the United States, shall use such plate, stone or other
thing or any part thereof, or knowingly suffer the same
to be used for the purpose of printing any such or similar
obligation or other security, or any part thereof except
as may be printed for the use of the United States by

252 Federal Criminal Law Procedure.

order of the proper officer thereof; or whoever by any
way, art, or means shall make or execute, or cause or
procure to be made or executed, or shall assist in making
or executing any plate, stone, or other thing, or bring
into the United States or any place subject to the juris-
diction thereof, from any foreign place, any such plate,
stone, or other thing, except under the direction of the
Secretary of the Treasury or other proper officer, or with
any other intent, in either case, than that such plate,
stone or other thing be used for the printing of the obli-
gations or other securities of the United States; or who-
ever shall have in his control, custody, or possession any
plate, stone, or other thing, from which any such obliga-
tion or other security has been printed, with intent to
use such plate, stone, or other thing, or to suffer the same
to be used in forging or counterfeiting any such obliga-
tion or other security, or any part thereof; or whoever
shall have in his possession or custody, except under
authority from the Secretary of the Treasury or other
proper officer, any obligation or other security made or
executed, in whole or in part, after the similitude of any
obligation or other security issued under the authority
of the United States, with intent to sell or otherwise use
the same; or whoever shall print, photograph, or in any
other manner make or execute, or cause to be printed,
photographed, made, or executed, or shall aid in printing,
photographing, making or executing any engraving, pho-
tograph, print, or impression in the likeness of any such
obligation or other security or any part thereof, or shall
sell any such engraving, photograph, print or impression,
except to the United States, or shall bring into the United
States or any place subject to the jurisdiction thereof,
from any foreign place any such engraving, photograph,
print or impression, except by direction of some proper
officer of the United States; or whoever shall have or
retain in his control or possession, after a distinctive
paper has been adopted by the Secretary of the Treasury
for the obligations and other securities of the United
States, any similar paper adapted to the making of any
such obligation or other security, except under the au-

Counterfeiting, Etc. 25:5

thority of the Secretary of the Treasury or some other
proper officer of the United States, shall he fined not
more than five thousand dollars, or imprisoned not more
than fifteen years, or both."

The having in possession, under the above statute, of
an unsigned and unissued treasury note or national bank
note would be an offense, the question, however, of simili-
tude being submitted to the jury for their determination
as to whether or not the failure of such note to bear the
signatures of the officers of the issuing bank would be
calculated to deceive or not deceive a person of ordinary
intelligence. In the case of Wiggins vs. The United
States, 214 Federal, 970, Judge Adams for the Circuit
Court of Appeals, in affirming a conviction under this
statute, held that an indictment for the illegal issuing
and possession of an unsigned national bank note, under
this statute, would not be subject to demurrer, on the
mere ground that upon the face of such note it appeared
never to have been issued and therefore appeared not
to be an obligation of the United States. In overruling
such demurrer, it was said, substance, that the indict-
ment definitely enough charged that the instrument in
the possession of the defendant was made in part after
and in similitude of an obligation or security issued un-
der the authority of the United States and probably for
the purpose of demurrer the allegation touching simili-
tude should be treated as true, but as the note was set
forth in the indictment, it may be properly said that its
contents and display afforded ample evidence for sub-
mission to the jury of the question whether it was calcu-
lated to deceive an unsuspecting person of ordinary
prudence and incline him to accept it as good money,
notwithstanding the fact that no president's or cashier's
name appeared upon it. If that question is answered in
the affirmative, the similitude is sufficiently established
within the meaning of the law.

Prior to the Act of July 28, 1892, 27 Stats. 322, which
provided in substance, that the provisions of the Revised
Statutes of the United States providing for the redemp-
tion of national banks notes, shall apply to all national

254 Federal Criminal Law Procedure.

bank notes that have been or may be issued to or received
by any national bank, notwithstanding such notes may
have been lost by or stolen from the bank, and put in
circulation without the signature or upon the forged sig-
nature of the president or vice president and cashier, it
would not have been an offense to pass, utter or publish
an unsigned national bank note. U. S. vs. Williams, 14
Federal, 550; U. S. vs. Sprague, 48 Federal, 828; TJ. S.
vs. Barrett, 111 Federal, 369.

Judge Eudkin, in U. S. vs. Webber, 210 Federal, 973,
in speaking of the meaning of the word similitude or re-
semblance and similitude as contained in the foregoing
statute and the. meaning thereof, said that it was not
necessary that the similitude or resemblance should be so
great as to deceive experts, bank officers or cautious men.
It is sufficient if the fraudulent obligation bears such
likeness or resemblance to any of the genuine obligations
or securities issued under the authority of the United
States as is calculated to deceive an honest, sensible and
unsuspecting person of ordinary observation and care
when dealing with a person supposed to be upright and
honest. See Sections 92 and 92a.

§ 79. The Neall Case. — The Circuit Court of Appeals
for the Ninth Circuit, in the case of Neall vs. United
States, 118 Federal, 699, determined that one who forges
a certificate of deposit purporting to have been issued
on behalf of the United States to an enlisted soldier, by
signing thereto the name of the person described as an
officer and deputy Paymaster General, has forged an
" obligation of the United States," and an indictment
therefor which alleged in the same count an intent to
defraud both the United States and a soldier in the army,
was not bad for duplicity, because, said the Court, it is
impossible in such a case to aver or prove with certainty
a specific intent to defraud either one rather than the
other, and the law will impute to the act an intent to
defraud all who might have been thereby defrauded.

That the intent involved in the old statute and in the
new is general, is also determined in the case of United
States vs. Jolly, 37 Federal, 118. In De Lemos v§, United

Counterfeiting, Etc. 255

States, 91 Federal, 497, the Circuit Court of Appeals for
the Fifth Circuit quashed an indictment for forgery un-
der old Section 5414, where the proof showed the forgery
of an endorsement on a draft, because the indictment
failed to charge that the genuine draft with the forged
endorsement, constituted together a forged obligation of
the United States. In other words, the decision is in
line with the Albert case referred to above. In the De
Lemos case, the Court said that an indictment which
avers that the draft itself constituted the obligation which
was forged, and which, by every averment, shows that
the forgery consisted in the false making of the endorse-
ment, is in itself repugnant, and does not properly lay
the offense.

§ 80. Forging or Counterfeiting United States Securi-
ties.— Section 148 of the new Code takes the place and is
in the same words as old Section 5414, and what has been
observed and the citations that have been given are au-
thorities upon this new section, which reads as follows:

"Whoever, with intent to defraud, shall falsely make, forge, coun-
terfeit, or alter any obligation or other security of the United States
shall be fined not more than five thousand dollars and imprisoned not
more than fifteen years."

Bearing in mind what has been said with reference to
obligation or other security of the United States, it will
be interesting to cite in this connection Section 149 of the
new Code, which takes the place of the old Section 5415,
and which reads as follows:

"Whoever shall falsely make, forge or counterfeit, or cause or procure
to be made, forged, or counterfeited, or shall willingly aid or assist in
falsely making, forging or counterfeiting, any note in imitation of. or
purporting to be in imitation of, the circulating notes issued by any
banking association now or hereafter authorized and acting under
the laws of the United States; or whoever shall pass, utter, or publish,
or attempt to pass, utter, or publish, any false, forged, or counterfeited
note, purporting to be issued by any such association doing a banking
business, knowing the same to be falsely made, forged, or counter-
feited; or whoever shall falsely alter, or cause or procure to be
falsely altered, or shall willingly aid or assist in falsely altering, any
such circulating notes, or shall pass, utter, or publish, or attempt
to pass, utter, or publish as true, any falsely altered or spurious cir-

256 Federal. Criminal Law Procedure.

dilating note issued, or purporting to have been issued, by any such
banking association, knowing the same to be falsely altered or
spurious, shall be fined not more than one thousand dollars and im-
prisoned not more than fifteen years.''

In the same connection, and in place of old Section
5431, is new Section 151, which relates to the passing,
selling, concealing, etc., of forged obligations, and which
reads as follows:

"Whoever, with intent to defraud, shall pass, utter, publish, or
sell, or attempt to pass, utter, publish, or sell, or shall bring into the
United States or any place subject to the jurisdiction thereof, with
intent to pass, publish, utter, or sell, or shall keep in possession or
conceal with like intent, any falsely made, forged counterfeited, or
altered obligation or other security of the United States, shall be fined
not more than five thousand dollars and imprisoned not more than
fifteen years."

Attention is also called to Section 162 of the new Code,
which reads as follows:

"Whoever shall so place or connect together different parts of two
or more notes, bills, or other genuine instrument issued under the
authority of the United States, or by any foreign government, or
corporation, as to produce one instrument, with intent to defraud, shall
be deemed guilty of forgery, in the same manner as if the parts so put
together were falsely made or forged, and shall be fined not more than
one thousand dollars, or imprisoned not more than five years, or both."

Section 156, 157, 158, 159, 160 and 161 of the new Code
elaborately include the offenses originally comprehended
in the first volume of the Supplement, page 429, known
as the Act of May 16, 1884, 23 St. Large, page 23, and
relate to the offenses of counterfeiting notes, bonds, etc.,
of foreign governments, passing such forged notes, bonds,
etc., counterfeiting notes on foreign banks, passing such
counterfeited bank notes, having in possession such forged
notes, bonds, etc., and having unlawfully in possession,
or using, the plates for any such notes, bonds, etc.

The leading cases under the old act, and, therefore,
ranking precedents under the new sections from 156 to
161 inclusive, are, United States vs. Arjona, 120 United
States, 479, and Bliss vs. United States, 105 Federal, 508.
In the Arjona case, the Supreme Court of the United

Counterfeiting, Etc. 25'J

States upheld the constitutionality of the Act, and said
that the United States not only had the power, but that
it was their duty to prevent and punish the counterfeit-
ing within their jurisdiction of the notes, bonds, and
other securities issued by foreign governments, or under
their authority, and that an act to prevent transgression
against foreign securities did not have to declare the of-
fense to be an offense against the law of nations. In Bliss
vs. United States, the Court of Appeals for the First
Circuit, in affirming a judgment of conviction against
Bliss for counterfeiting a number of the notes of the Do-
minion of Canada of the same series and bearing consecu-
tive numbers, held that the counterfeiting of the same
at different times, although all apparently of the same
series and apparently from the same plate, constituted
distinct offenses, and a conviction for one is no bar to a
prosecution for the other.

Sec. 80a. U. S. Securities.

The Supreme Court held in the case of U. S. vs. Sacks,
42 Sup. Ct. Sep. 38, and U. S. vs. Janowitz, 42 Sup. Ct.
Rep. 40, that regulations made by the Secretary of the
Treasury under the Act of September 24th, 1917, that
war savings certificates should not be transferable were
binding and that section 37 punishing conspiracy could
be used in conjunction with section 148 counterfeiting,
to successfully punish parties who purchased war savings
stamps from the real owners and detached them from the
certificate and conspired to exchange them for other cer-
tificates of the value in excess of a hundred dollars.

These two decisions are very comprehensive and should
be read with care in order to understand the full sweep
of the determination of the government to safeguard the
obligations and securities it issues.

Sec. 80a.a. U. S. Securities.

The foregoing statutes with reference to forgery and
counterfeiting and altering apply to non-negotiable as
well as to the negotiable securities of the United States
and, therefore, protect war savings stamps, etc., U. S. vs.
Eossi, 268 F. 620.

258 Federal Criminal Law Procedure.

§ 81. Forging and Counterfeiting United States Se-
curities and National Bank Notes. — We now return to a
discussion of Sections 148, 149 and 151, heretofore re-
ferred to. In these sections, together with Section 162,
will be found practically all of the safe-guards that pro-
tect the genuine, and prosecute for the forging or coun-
terfeiting of the government obligation or national bank
note. Until the adoption of the New Code, there was no
statute similar to the new Section 162. Prosecutions for
alterations of genuine bills of small denominations, by
erasing and pasting and changing the numerals and word-
ing thereon, were had under 5414, which is now Section
148.

We instantly understand that one who prepares, with
bad intent, an instrument that pretends to be an obliga-
tion of the United States or national bank currency, is
within the purview of the statutes. There is a nice
question, though, that hinges about the latitude and
meaning of the word "imitation" and the word "simili-
tude" as found in these old statutes ajid in the new ones.
In Logan vs. United States, 123 Federal, 291, the defend-
ant had robbed a train and secured a lot of forty thousand
dollars of unsigned national bank notes, confined by the
Comptroller of the Currency to the National Bank of
Montana, and thereupon signed fictitious names to the
notes as President and Cashier of the bank, and passed
them. The first question raised by the defense was, that
inasmuch as the signatures to the notes were those of
fictitious persons, no forgery could be laid, which objec-
tion the Court overruled, citing United States vs. Turner,
7 Peters, 132, 8 Law. Ed., 633, and said:

"The fact that the names signed as President and Cashier were
fictitious is of no importance. The public mischief is the same whether
the names forged are those of the genuine officers or of fictitious per-
sons."

To the other defense raised that such performances did
not constitute the crime of forging notes under Section
5415, the Court answered that national bank notes to
which signatures have been forged, and which have been

Counterfeiting, Etc. 259

put in circulation, are redeemable by the Act of July 28,
1892, 27 St., 322, and this redemption clinches the offense,
rather than acting as a defense thereto, and a conviction
of the defendants was affirmed.

§ 82. Confederate Money. — In United States vs. Wil-
son, 44 Federal, 751, Judge Hallett, in passing upon an
indictment against Wilson for having passed a Confed-
erate States note, said:

"It is only necessary to say that the offense defined in this section
and in other sections which have been referred to in argument upon
this motion, is that of passing, uttering, or publishing any counter-
feit note. The note must purport to be issued by such an association
doing a banking business. This, so far as disclosed, was not a coun-
terfeit at all. It was a genuine note;) that is to say, it was a genuine
note of the Confederate States of America, and therefore, it was not
counterfeit in the sense of this statute, or of any statute, and then
it was not on its face, or in any way, a note of any national bank,
or of the United States. There were no words to make it such. The
counterfeit referred to in the statute must, at all events, have a greater
resemblance to the current moneys of the United States than to
anything else. This note, in the size and shape and color, and in the
denomination of the figures upon it, has some resemblance to the
current notes in circulation as money, but that is not enough to make
it a counterfeit of the circulating notes of the United States."

To the same effect is United States vs. Kuhl, 85 Fed-
eral, 624, the Court saying that an ordinary Confederate
States five-dollar note does not bear to the national cur-
rency the similitude contemplated in Revised Statutes
5430, notwithstanding such notes are frequently accepted
by mistake as money. In this same case, the Court said
that the "similitude" contemplated in Revised Statute
5430 is such a likeness or resemblance as to be calculated
to deceive an honest, sensible, and unsuspecting man of
ordinary care and observation, when dealing with a sup-
posed honest man.

§ 83. Other Securities, Including State Bank Notes.
—Judge Hanford, in 91 Federal, United States vs. Fitz-
gerald, left the question of similitude and similarity and
imitation to the jury, upon a case against Fitzgerald for
having in his possession a hundred shares of the capital
stock of the Denver Mining Company, of the par value of

260 Federal Criminal Law Procedure.

one thousand dollars, the certificate of which stock, in
its size, quality of paper, style of printing, resembled a
United States bond for the sum of one thousand dollars,
and further resembled a United States bond for the said
amount in that it had the words "The United States"
printed across the face thereof, and the paper also had
heavy green border and scroll work resembling somewhat
the ornamentation of United States bonds. In leaving
the question to the jury, he said:

"The similitude must be in such a degree as to furnish a resemblance
so near to the Government obligations or securities that it could be
used to deceive a person of ordinary intelligence, who is acting with
ordinary care in a business transaction. The resemblance is suf-
ficient for the purpose if you believe that it would probably deceive
a person taken unawares in dealing with a person who he believed was
acting honestly."

In United States vs. Stevens, 52 Federal, 120, District
Judge Paul held in substance that a note that was origi-
nally issued by a duly authorized state bank, which was a
legal note at the time of its issuance, but afterwards be-
came utterly worthless by the insolvency of the bank,
subjected the holder thereof to prosecution under Section
5430, if it was in his possession with intent to sell or
otherwise use it, and pass it, as a genuine note or obliga-
tion of the United States. It is not thought that this is
good law. Congress certainly has no authority to pre-
vent the issuance of state bank notes. It simply taxes
them out of existence, and one who passed a worthless
state bank note, contending that it was a genuine United
States obligation, would only be an offender against the
state law for cheating or swindling. His statement with
reference to the instrument does not, within the meaning
of the law, constitute it a forgery, nor give it such like-
ness and similitude as will make it contraband under the
Federal statute.

Judge Bellinger, in United States vs. Conners, 111 Fed-
eral, 734, decided that a bill or note issued by the state
bank of New Brunswick, New Jersey, which thereafter
became insolvent and worthless, but which was alleged
in the indictment to be in the possession of Conners for

Counterfeiting, Etc. 261

evil purposes, and that the same was in similitude of an
obligation and security issued under the authority of
the United States, was not in the "similitude" within
the meaning of Section 5430, since it did not purport to
be an obligation or security of the United States, and an
indictment for a violation of that section did not charge
an offense where it showed that the instrument referred
to was such a bank bill.

In United States vs. Beebe, 149 Federal, 618, Judge
Archibald, in passing upon a case which was based upon
the defendant passing a genuine note, which had thereto-
fore been issued by a state bank, even though at that
time the note was worthless, and may have had some
resemblance, by reason of its color, to a United States
note, determined that no offense against the United
States had been committed. He said:

•'There must at least be such a resemblance if not simulation, as
is not only calculated to deceive a person of ordinary intelligence, but
as enables us to say with some degree of certainty that in disposing
of or using it, the party charged was evidently trying to palm it off
as a genuine obligation of the United States (citing and dis-
tinguishing cases). A broader ruling would make all state bank issues
obnoxious; with regard to which, it may also be further observed
that state currency is not prohibited, but is simply taxed out of ex-
istence; notwithstanding which, if anyone desires to put out notes
or bills to pass as money, there is nothing to prevent it, to say noth-
ing of being charged with counterfeiting, if they happen to prove

worthless The Federal Government is omy concerned with

protecting the people against spurious or counterfeited imitations of
the money to which it gives currency, and to those the Act is to be
confined. It cannot, indeed, be extended further, without entrenching:
upon the reserved rights of the states, which we must be careful to
respect, if the dual form of government which we have is to be
preserved."

§ 84. Allegation of Knowledge. — These statutes be-
ing highly penal, and being given life only when there is
evil intent, make it absolutely necessary that the indict-
ment allege, and the proof show, either by circumstantial
or direct evidence, the intent to defraud in making, forg-
ing, or altering, and the knowledge of such falseness,
before the passing is unlawful. The Circuit Court of
Appeals for the First Circuit, in Gallagher vs. United

262 Federal Criminal Law Procedure.

States, 144 Federal, page 87, held that in a prosecution
under Section 5415, for passing false or forged national
bank notes, knowledge that they were falsely made is an
essential element of the offense, and there must be some
evidence of such knowledge, circumstantial or otherwise,
aside from proof merely that the spurious note was pass-
ed. The Court says:

"The fact of knowledge may be proven in a variety of ways. There
should, however, always be some evidence tending to show knowledge
beyond that which results from mere proof that the spurious bill was
passed. This rule results from the nature of the transaction, because,
as is very well known, spurious notes are so skilfully fashioned that
one might naturally and innocently, as is oftentimes the case, receive
and pass them in the whirl of business. In such a case, intent and
guilty knowledge, within the meaning of the statute, would be absent;
hence, the rule requiring something more than evidence of the mere
passage of the counterfeit paper."

It is very true that such evidence may be gathered
from a field of circumstances, the manner in which the
payment was made, the fact that a large bill was offered
when the defendant had convenient change at hand; the
placing of the money quietly and sliding it along the
table or counter or receptacle; previous attempts to
pass the same coin or bill and the rejection thereof, or
the frequent passing of the same sort; conflicting state-
ments, etc., etc. In United States vs. Carll, 105 United
States, 611, the Supreme Court held that the allegation
knowingly and wilfully was absolutely necessary to the
validity of the indictment.

See. 84a. Allegation of Knowledge Continued.

The case of Baender vs. U. S., 260 F. 832, does not
seem to be the law as it holds that the intent may be
inferred from possession and need not be averred in the
indictment. The statute under consideration, however,
had been framed by Congress with the purpose of elimi-
nating the words "with intent to fraudulently use the
same'3' omitted. The possession of opium, from which
analogy the opinion proceeds, was made presumptive,
on certain incriminating facts but the statute itself cre-
ates such presumption.

Counterfeiting, Etc. 263

Of course, one could not be in possession of a mold
without knowing it, while one might be in possession of a
counterfeit and not know it.

The allegation of knowledge is indispensable, says the
Supreme Court in the Baender case, 41 Sup. Ct. Rep. 271,
when the case reached that court.

An indictment for having in possession a falsely al-
tered and spurious bank note, but containing no aver-
ment that the accused knew it to be altered or spurious
does not charge an offense, Hill vs. IT. S., 275 F. 187.

§ 85. Description. — Accurateness and preciseness are
indispensable in the allegations of the indictment, when
it comes to describing the false instrument passed or
made. In United States vs. Howell, 64 Federal, 110, the
Court held that an indictment which specified the par-
ticular kind of obligation, the denomination of such ob-
ligation, the allegation that the bill purported to be a
United States note, and giving the denomination thereof,
was sufficient. It is thought however, to be the better
practice to set out the main features of the front and back
of the bill or security. Of course, it is not meant to say
that pictures or impossible delineations, or even difficult
drawings, are to be incorporated in the bill, but the large
numbers and wording, and identifying issues or series of
both the front and back of the bill should be specifically
set forth. It is fatal variance for the indictment to incor-
rectly describe the alleged conterfeit bills in respect to
the bill number, U. S. vs. Mason, 12 Blatch, (U. S.) 497.
If the grand jury does not have the bill it may so allege
and describe as well as the circumstances will permit, U.
S. vs. Howell, 64 Federal, 110.

§ 86. Circulating Bills of Expired Corporation.— Sec-
tion 174 of the New Code practically re-enacts Section
5437. We have seen that under ordinary circumstances,
unless there be some fatally misleading similarity, imita-
tion, or similitude, the passing of the note of a defunct
bank is not a Federal offense. Section 174 of the new-
Code inhibits the issuing or uttering of any note or obli-
gation or bill or check or draft by any officer of an ex-
pired banking corporation. The statute, of course, does

264 Federal Criminal Law Procedure.

not apply to one who is not, or was not, connected with
the institution during its life.

§ 87. Mutilating or Defacing National Bank Note. —
Section 5189 of the old statutes has been so changed as
to read as follows, in Section 176 of the new Code:

"Whoever shall mutilate, cut, disfigure, or perforate with holes,
or unite or cement together or do any other thing to any bank bill,
draft, note or other evidence of debt, issued by any national banking
association, or shall cause or procure the same to be done, with intent
to render such bank bill, draft, note, or other evidence of debt unfit
to be re-issued by said association, shall be fined not more than one
hundred dollars, or imprisoned not more than six months, or both."

Under the old statute, the person doing the things
therein denounced was liable to a penalty of fifty dollars,
recoverable by the association, but under the new statute,
the act becomes an offense punishable by indictment.
Under the present section, as well as under the old stat-
ute, the prosecution must allege, and the proof must show
that the mutilation, defacing, etc., of the note, bill, or
draft, must have been with the intent to unfit the same to
be re-issued by the association issuing it.

§ 88. Imitating National Banking Notes with Print-
ed Advertisement Thereon. — Section 175 of the new Code
takes the place of Section 5188, and reads as follows:

"It shall be unlawful to design, engrave, print,' or in any manner
make or execute, or to utter, issue, distribute, circulate, or use any
business or professional card, notice, placard, circular, handbill, or
advertisement in the likeness or similitude of any circulating note
or other obligation or security of any banking association organized
or acting under the laws of the United States which has been or may
be issued under any act of Congress, or to write, print, or otherwise
impress upon any such note, obligation, or security, any business or
professional card, notice, or advertisement, or any notice or advertise-
ment, or any matter or thing whatever. Whoever shall violate any
provision of this section shall be fined not more than one hundred
dollars, or imprisoned not more than six months, or both."

The new section becomes an offense wherein the pen-
alties are recovered by the public prosecutor through in-
dictment or information. Under the old statute, the of-
fender was liable to a penalty of one hundred dollars,

Counterfeiting, Etc. 265

recoverable on the suit of the informer, one-half of which
went to the informer. Under the authority of United
States vs. Laescki, 29 Federal, 699, the penalty provided
by the old section could only be recovered by a qui tam
action brought by an informer, and could not be recov-
ered by indictment at the instance of the Government.

This section is intended alone for the purpose of pro-
tecting national bank notes, and does not, by construction
or otherwise, relate to the protection of any other gov-
ernment security or obligation. The statute really con-
tains two offenses: the one against making any token,
advertisement, circular, etc., in the likeness or similitude
of any circulating note or other obligation; and the other
is directed against the placing of any writing, printing
notice, or any other advertisement upon one of the cir-
culating notes or bills of the national bank currency.
''Advertisement" to be read into entire statute, Kaye vs.
U. S., 177 Federal, page 147.

§ 89. Imitating United States Securities or Printing
Business Cards on Them. — Closely akin to the section
above discussed is new Section 177, which reads as fol-
lows:

"It shall not be lawful to design, engrave, print, or in any manner
make or execute, or to utter, issue, distribute, circulate, or use any
business or professional card, notice, placard, circular, hand-bill, or
advertisement, in the likeness or similitude of any bond, certificate
of indebtedness, certificate of deposit, coupon, United States note, or
other obligation or security of the United States which has been or
may be issued under or authorized by any Act of Congress heretofore
passed or which may hereafter be passed; or to write, print, or other-
wise impress upon any such instrument, obligation, or security, any
business or professional card, notice or advertisement, or any notice
or advertisement of any matter or thing whatever. Whoever shall
violate any provision of this section shall be fined not more than five
hundred dollars."

This section takes the place of old Section 3708, and is
more severe in penalty. The penalty of the old section
was not recoverable except upon the suit of an informer,
and the authority of the United States vs. Laescki, 29

266 Federal Criminal Law Procedure.

Federal, 699, governed. The new section authorizes
prosecution by information or indictment, and by the
government, instead of waiting for an informer to move.
This statute, like the preceding, protects from deface-
ment securities, moneys, notes, and other obligations of
the United States, and also prevents the making, for
advertising purposes, of any card or other circular in
likeness or similitude to any such government security
or obligation.

§ 90. Notes of Less Than One Dollar Not to Be Is-
sued.— Section 3583 of the Revised Statutes of the United
States, that has been the law since 1878, has simply been
re-enacted in Section 178 of the new Code, which went
into effect January 1, 1910. This section reads as fol-
lows:

"No person shall make, issue, circulate, or pay out any note, check,
memorandum, token, or other obligation for a less sum than one
dollar, intended to circulate as money, or to be received or used in
lieu of lawful money of the United States; and every person so of-
fending shall be fined not more than five hundred dollars, or im-
prisoned not more than six months, or both."

The old section simply had the additional words, "at
the discretion of the Court. ' ' These words were left off
of the new section, which, however, does not alter the
punishment, because the same is in the discretion of the
Court under the new section, and he may assess either or
both, as he pleases.

There seems to be no doubt, so far as the decisions are
concerned, that a personal check drawn upon a bank in
the settlement of an obligation, and not to be circulated
as money is entirely lawful, and is not interfered with by
the above section. So early as 1878 the Supreme Court
of the United States, in the case of the United States
against Van Auken, 96 U. S., page 366, determined that
the section was intended to prevent the issuance of tokens
which were to circuate as money. That decision has
since been followed, directly and persuasively, in Hol-
lister vs. Merchant Institute, 111 U. S., 63; United States
vs. White, 19 Federal, 724; in re Aldrich, 16 Federal, 370;
United States vs. Rousopulous, 95 Federal, 978; Zion

Counterfeiting, Etc. 267

Institute, etc., vs. Hollister, 3 Utah, 301; Martin Lumber
Company vs. Johnson, 70 Ark., 219; 66 S. W., 925.

Of course anything I have said here does not moan thai
individuals or business concerns should issue, for the
payment of help, any sort of a token that the employ*
could not immediately take to a bank and receive the
cash thereon.

The statute is simply for the purpose of confining the
power to issue money in the Constitutional channel, to
wit, the hands of Congress, and not to individuals, or
firms, or concerns.

§ 91. Counterfeiting Gold or Silver Coins or Bars.—
Without substantial alteration, old Station 5457 and the
Amendment as contained in the First Supplement, 128,
becomes Section 163 of the new Code, in the following
words:

"Whoever shall falsely make, forge, or counterfeit, or cause or
procure to be falsely made, forged, or counterfeited, or shall willingly
aid or assist in falsely making, forging, or counterfeiting, any coin
on bars in resemblance or similitude of the gold or silver coins or
bars which have been, or hereafter may be coined or stamped at the
mints and assay offices of the United States, or in resemblance or
similitude of any foreign gold or silver coin, which by laws, is, or
hereafter may be, current in the United States, or are in actual use
and circulation as money within the United States; or whoever shall
pass, utter, publish, or sell, or attempt to pass, utter, publish, or sell,
or bring into any foreign place, knowing the same to be false, forged,
or counterfeit, with intent to defraud any body politic or corporate, or
any person or persons whomsoever, or shall have in his possession any
such false, forged, or counterfeited coin or bars, knowing the same to
be false, forged, or counterfeited, with intent to defraud anybody
politic or corporate, or any person or persons whosoever, shall be
fined not more than five thousand dollars and imprisoned not more
than ten years."

The same care in the drafting of indictments, in the
alleging of the fraudulent intent, is necessary, as in
prosecutions for passing other forged instruments. When
the indictment is for forging or making, the allegation of
knowledge is unnecessary, because the law presumes thai
one who makes has knowledge of its falseness. U. S. vs.
Otney, 31 Federal, 68; U. S. vs. Bicksler, 1 Mackey, 341;
U. S. vs. Peters, 2 Abb. (U. S.), 494; U. S. vs. Russell,

268 Federal Criminal Law Procedure.

22 Federal, 390. When, however, the charge is for pass-
ing, knowledge must be alleged and shown. Of course,
such knowledge may be shown by either direct or cir-
cumstantial evidence, but there must be something from
which the jury can conclude, beyond a reasonable doubt,
that the person passing had knowledge that the coin was
spurious; otherwise, the act is entirely innocent.

Sec. 91a. Counterfeit Gold and Silver Coins and Bars
Continued.

For minor coins see Sec. 93. It is not necessary to
allege ''not a minor coin," Linnigen vs. Morgan, 241 F.
645.

§ 92. Resemblance or Similitude. — The same difficul-
ties have been encountered and overcome by the Courts
under the coin statutes as were discussed under Sections
148 and 149, supra. A coin or bar would not be called
counterfeit, within the meaning of a criminal statute,
unless there appeared to be some resemblance or simili-
tude and an effort to make such resemblance and simili-
tude. It would seem to be the better public policy to
accept the test prescribed in United States vs. Hargrave,
26 Federal Cases No. 15306, where it was said that it
was not a question whether the spurious coin would de-
ceive a person of ordinary skill and caution, but whether
it was capable and designed to be used for deceiving the
incautious and unskillful, to test which seems to be more
broadly determined in the following words, to wit: "If
the spurious article has not a resemblance strong enough
to deceive persons exercising ordinary caution, then the
passing is not a crime," as cited in and supported by
Second Volume Federal Statutes Annotated, page 311;
United States vs. Aylward, 24 Federal Cases No. 14484.
A very fair test is that prescribed in United States vs.
Hopkins, 26 Federal, 443, where the Court said:

"It is not necessary that the resemblance should be exact in all
respects. The resemblance is sufficient if the coins are so far alike
that the counterfeit coin is calculated to deceive a person exercising
ordinary caution and observation in the usual transaction of business.

Counterfeiting, Etc. 269

though the counterfeit would not deceive a person who was expert,
or has particular experience in such matters."

See also U. S. vs. Abrams, 18 Federal, 823; U. S. vs.
Kussell, 22 Federal, 390. In United States vs. Lissner, 12
Federal, 840, the Court held that the removal of an ap-
preciable amount of the silver from a coin, which was
replaced with an inferior metal, amounted to counterfeit-
ing.

In United States vs. Owens, 37 Federal, 112, District
Judge Hammond held that in a prosecution under a gen-
eral statute of the sort under discussion, it was not essen-
tial for the indictment to aver that the alleged counter-
feits were in the likeness and similitude of genuine notes
(coins) authorized by the act of Congress under which
they purported to have been issued. Such an allegation
may be necessary under a special statute, but in provid-
ing a general law for forgery, such specific allegation is
unnecessary. The words "false, forged, and counterfeited
obligation of the United States" are sufficient to imply
that the alleged counterfeit purports to be a genuine
obligation of the United States, and are a sufficient aver-
ment that there is, or was, outstanding, authorized by
law, genuine obligations of the sort the alleged imitation
was intended to be a forgery or counterfeit.

An indictment under this section must aver the inten-
tion to defraud, but it need not specify the person, if, as
a matter of fact, the grand jury does not know in particu-
lar, and the indictment may, therefore, allege that the
forging and having in possession was for the purpose of
defrauding persons to the grand jurors unknown, if such
be the facts. Of course, in a count for passing or utter-
ing, the indictment should allege the intent to defraud
the person upon whom the coin was passed. Whether for
having in possession or for passing, there must be, as
above stated, an allegation of knowledge with reference
to its vice. U. S. vs. Bejandio, 1 Woods, 294.

§ 92a. Resemblance and Similitude, Continued.— An
unsigned national bank note contains the elements of
similitude and resemblance required by the statute. Wig-

270 Federal Criminal Law Procedure.

gins vs. U. S., 214 Federal, 970. Similitude an-1 resem-
blance is a jury question and must be submitted by the
Court to the jury. U. S. vs. Weber, 210 Federal," 973.
See Sections 78 and 78a. The meaning of similitude is
that the counterfeit must resemble the genuine. Whether
it does is a question of fact for the jury, but the Court
will instruct them that the likeness need not be perfect.
The rule is sometimes stated to be that it will suffice if
the counterfeit looks so much like the original as to be
capable of deceiving a person using ordinary caution.
2nd Vol. Bishop's New Criminal Law, Section 291, page
167. There need be no impression on the counterfeit,
says one authority for it may be in the likeness of the
worn coin. 2nd Vol. Bishop's New Criminal Law, Section
291, page 167.

§ 92b. Advertisements Like Coins, Etc. — Section 171
provides: "Whoever, within the United States or any
place subject to the jurisdiction thereof, shall make, or
cause or procure to be made, or shall bring therein, from
any foreign country, or shall have in possession with in-
tent to sell, give away, or in any other manner use the
same, any business or professional card, notice, placard,
token, device, print, or impression, or any other thing
whatsoever, in the likeness or similitude as to design,
color, or the inscription thereon, of any of the coins of
the United States or of any foreign country that have
been or hereafter may be issued as money, either under
the authority of the United States or under the authority
of any foreign government, shall be fined not more than
one hundred dollars. But nothing in this section shall
be construed to forbid or prevent the printing and pub-
lishing of illustrations of coins and medals, or the making
of the necessary plates for the same, to be used in illus-
trating numismatic and historical books and journals and
the circulars or legitimate publishers and dealers in the
same." Act February 15, 1912.

§ 93. Counterfeiting Minor Coins. — Section 5458 of
the old statutes is displaced by Section 164 of the new
Code, in the following terms:

Counterfeiting, Etc. 271

This statute, it will be noticed, includes all of the
elements and ingredients, both with reference to allega-
tion and proof that have been treated under Sections 163,
148 and 149. It must be understood that the minor coins
referred to in the section are those defined and created
by Section 3515 of the old statute, which were a five-cent
piece, a three-cent piece, and a one-cent piece. An in-
dictment, therefore, which charged the forging and coun-
terfeiting of minor silver coinage is contradictory, and
alleges no offense. U. S. vs. Bicksler, 1 Mackey, 341.

§ 94. Making or Uttering Coins in the Resemblance
of Money. — New Section 167, in the following words:

"Whoever, except as authorized by law, shall make or cause to be
made, or shall utter or pass, or attempt to utter or pass, any coins
of gold or silver or other metal, or alloys of metals, intended for the
use and purpose of current money, whether in the resemblance of
coins of the United States or of foreign countries, or of original design,
shall be fined not more than three thousand dollars, or imprisoned
not more than five years, or both."

displaces old Section 5461. Sections 163 and 164, above
mentioned, related alone to gold and silver coins or bars.
and the minor coinage while Section 167 is what may be
termed a blanket statute, that denounces as unlawful,
any making, uttering, or passing etc., of any coin,
whether of gold or silver or other metal, intended for tin1
use and purpose of current money, and this whether the
design be in imitation of any United States obligation,
or whether it be in original design.

This statute, if enforced, is capable of being used for
much good, in the stamping out of the practice of certain

272 Federal Criminal Law Procedure.

large industries, that pay their labor, and thus enforce a
practical serfdom, with checks or due bills or trade vouch-
ers which pass as current money in the camp or town
that such industry owns or dominates. The fact part of
the statute is found in the words "intended for the use
and purpose of current money," and, of course, this can
be made to appear either by direct or circumstantial tes-
timony. The jury should be instructed that the tokens
were intended for the use and purpose expressed in the
statute, and they should so find, beyond a reasonable
doubt, before a conviction could be had.

§ 95. Making or Issuing Devices of Minor Coins. — For
the protection of the minor coinage, as defined by old
statute 3515, as hereinbefore noticed, the old section 5462
becomes Section 168 in the new Code, which reads as fol-
lows:

"Whoever, not lawfully authorized, shall make, issue, or pass, or
cause to be made, issued, or passed, any coin, card, token, or device
in metal, or its compounds, which may be intended to be used as money
for any one-cent, two-cent, three-cent, or five-cent piece, now or here-
after authorized by law, or for coins of equal value, shall be fined not
more than one thousand dollars, and imprisoned not more than five
years."

In United States vs. Roussopulous, 95 Federal, 977, the
Court held that circular metal tokens, which, though of
similar color, differed in size and wholly undesigned from
any coin of the United States, and are only from one-sixth
to one-fifteenth the weight of the coin the nearest the
same size, and which do not purport to be money or ob-
ligations to pay money, but contain the names of business
concerns, with the statement that they are good for a
certain value in merchandise, are not tokens in the like-
ness and similitude of coins of the United States, nor
intended to circulate as money, and to be received and
used in lieu of lawful money, within the prohibition of
Section 5462, Section 3583, or the Act of February 10,
1891.

It will be borne in mind, however, that Section 168 is
not nearly so broad as Section 167. It is true of 168, as
it was of 167, that there must be an intent to use the

Counterfeiting, Etc. 273

token as money, which must be charged, proven, and
found, as other essential facts in criminal cases.

§ 96. Other Statutes Relating to the Coinage.— Sec-
tion 165 takes the place of the old Section 5459, as amend-
ed by the Act shown at page 579 of the Second Supple-
ment. This section punishes the fraudulent mutilation
or lightening of the coinage. There seems to be nothing
in the old law or in the new law that inhibits the bona
fide use of a coin. If, however, there be a mutilation,
for the purpose of defrauding some person, the statute is
so broad as to include every possible method. It was
said in United States vs. Lissner, 12 Federal, 840, that
where one punched a hole with a sharp instrument
through a coin, leaving all the silver in the coin, though
crowding it into different shape, he committed no offense.

Section 166 relates to the debasement of the coinage by
officers of the mint, and is a practical re-enactment of old
Section 150. Section 169 relates to counterfeiting, etc., of
the dies for coins of the United States, and incorporates
all the features of the Act shown in First Supplement,
page 889.

Section 170 denounced the counterfeiting of dies for
foreign coins, and is based upon the Act shown in the
First Supplement, page 890.

Section 171 is an incorporation of the Act shown in
First Supplement, page 890, and the Act of the Third of
March, 1903, page 1223 of the 32 St. Large, and treats of
the making, importing, or having in possession, tokens,
prints, etc., similar to United States or foreign coins.

§ 96a. Counterfeit Dies, Hubs, Molds, Etc.— The Act
of February 10, 1891, Chap. 127, 26 Stats. L., 742, which
makes it an offense to make any die, hub or mold in the
likeness of any die, hub or mold designed for the coining
of any of the coins of the United States "without authori-
ty from the Secretary of the Treasury," makes it neces-
sary that the indictment must aver the want of such au-
thority and a general averment that the die, hub or mold
was unlawfully and feloniously made by defendant is
not sufficient. Wroclawsky vs. IT. S., 183 Federal, 312.

Sections 169 and 170 of the Criminal Code do not con-
tain the words "Secretary of the Treasury" but do con-

274 Federal Criminal Law Procedure.

tain the words "without lawful authority." It would
appeal that an indictment without the words "without
lawful authority" would be generally demurrable and
yet the proof of such an allegation could only be made
by the testimony of the Treasury Department of the
United States, and from the lips of such authority in that
department as would be able to speak with reference to
the custody of all of such property as belonged to the
Government. It might be that this proof could be made
by a duly commissioned secret service officer who would
be sufficiently familiar with the dies and hubs and molds
of the United States, but it is hardly seen how he could
qualify and how his testimony would meet the measure
of these two sections.

Sec. 96b. Die and Mold.

It is immaterial that the word die is used instead of
mold, Cole vs. U. S., 269 F. 250.

§ 97. Counterfeit Obligations, Etc., to be Forfeited. —
By the terms of Section 172, which reads as follows:

"All counterfeits of any obligation or other security of the United
States or of any foreign government, and all material or apparatus
fitted or intended to be used, or that shall have been used, in the
making of any such counterfeit obligation or other security or coins
hereinbefore mentioned, that shall be found in the possession of any
person without authority from the Secretary of the Treasury or other
proper officer to have the same, shall be taken possession of by any au-
thorized agent of the Treasury Department, and forfeited to the United
States, and disposed of in any manner the Secretary of the Treasury
may direct. Whoever having the custody or control of any such
counterfeits, material, or apparatus, shall fail or refuse to surrender
possession thereof upon request by any such authorized agent of the
Treasury Department, shall be fined not more than one hundred
dollars, or imprisoned not more than one year, or both."

any counterfeit obligation, security, coin, or other ma-
terial, is to be forfeited. This section is an enlargement
of the Act shown in the First Supplement, page 890, in
that it adds a penalty. Whoever, having custody of the
material, refuses to surrender, upon request, is liable to
one hundred dollars fine, or imprisonment for not more
than one year, or both.

Counterfeiting, Etc.

275

§ 98. Search Warrant.— In aid of the above statute.
and particularly for the suppression of all sorts of coun-
terfeiting, we have Section 173 of the new Code, in the
following words:

"The several judges of courts established under the laws of the
United States and United States commissioners may, upon proper
oath or affirmation, within their respective jurisdictions, issue a
search warrant authorizing any marshal of the United States, or any
other person specially mentioned in such warrant, to enter any house,
store, building, boat, or other place named in such warrant, in which
there shall appear probable cause for believing that the manufacture
of counterfeit money, or the concealment of counterfeit money, or the
manufacture or concealment of counterfeit obligations or coins of the
United States or of any foreign government, or the manufacture or
concealment of dies, hubs, molds, plates, or other things fitted or in-
tended to be used for the manufacture of counterfeit money, coins, or
obligations of the United States or of any foreign government, or of
any bank doing businesss under the authority of the United States,
or of any State or Territory thereof, or any bank doing business
under the authority of any foreign government, or of any political
division of any foreign government, is being carried on or practiced,
and there search for any such counterfeit money, coins, dies, hubs,
molds, plates, and other things, and for any such obligations, and if
any such be found, to seize and secure the same, and to make return
thereof to the proper authority; and all such counterfeit money,
coins, dies, hubs, molds, plates, and other things, and all such counter-
feit obligations so seized shall be forfeited to the United States.''

The only difference between the new section and the
old section as shown in First Supplement, page 890, is
the leaving out of the provision that a search warrant
may be served or acted upon only in the day-time. Un-
der the new law, officers may act under the search war-
rant, when issued as therein provided, at any time, un-
less, perchance, the Constitutional prohibition against
unreasonable searches and seizures may be read into the
statute, and it doubtless is.

Sec. 98a. Search Warrant Continued.

There is no general power reposed in a court to issue
a search warrant, IT. S. vs. Jones, 230 F. 263.

CHAPTER VI.

OFFENSES AGAINST PUBLIC JUSTICE.

99. Perjury.

100. Form of Oath Immaterial.

101. Competent Tribunal, Officer, etc
101a. Oath Must be Authorized.

102. Illustrations of Successfully Laid Perjury.
102a. Additional Perjury Cases.

103. Materiality and Willfulness.
103a. Materiality Continued.

104. Sufficiency of Indictment.

105. Proof.

105a. Proof Continued.
105b. Other Cases.

106. Subornation of Perjury.
106a. Attorney Suborning.
106b. Elements of Surbornation.

107. Stealing or Altering Process, Procuring False Play, etc.

108. Obstructing Process or Assaulting an Officer, etc.

108a. Advice to Avoid Service of Process May Be Obstruction.
108b. Obstructing Process Continued.

109. Destroying or Stealing, etc., Public Records.

110. Destroying Records by Officer in Charge.

111. Forging Signature of Judge, etc.

112. Intimidation or Corruption of Witness or Grand or Petit Juror
or Officer.

112a. Illustrations of Intimidation.

113. Conspiring to Intimidate Party, Witness or Jury.

114. Attempt to Influence Jury.

115. Allowing Prisoner to Escape.
115a. Applies to State Jailer.

116. Rescuing, etc., Prisoner, etc.; Concealing, etc., Prisoner for
Whom Warrant has been Issued.

117. Rescue at Execution; Rescue of Prisoner and Rescue of Body

of Executed Offender.

118. Extortion by Internal Revenue Informers.

119. Misprision of Felony

120. Bribery.

121. Bribery of a Judge or Judicial Officer.

122. Judge or Judicial Officer Accepting Bribe, etc.

123. Juror, Referee, Master, United States Commissioner or Judicial

Officer, etc., Accepting Bribe.
123a. Indictment — Who is Officer.

124. Witness Accepting Bribe.

125. Members of Congress Accepting Bribes, etc.

(276)

Offexses Against Public Justice. 277

§ 99. Perjury.— Section 125 of the new Code, which
contains 5392 of the old statutes without changing the
same, reads as follows:

"Whoever, having taken an oath before a competent tribunal, officer,
or person, in any case in which a law of the United States author-
izes an oath to be administered, that he will testify, declare, depose,
or certify truly, or that any written testimony, declaration, desposi-
cion, or certificate by him subscribed, is true, shall wilfully and coii
trary to such oath state or subscribe any material matter which he
does not believe to be true, is guilty of perjury, and shall be fined not
more than two thousand dollars, and imprisoned not more than five
years."

Common law perjury was practically the same as this
statutory offense. Perjury, at Common Law, was the
wilful and corrupt giving, upon a lawful oath, or in any
form allowed by law to be substituted for an oath in a
judicial proceeding or course of justice, of false testi-
mony material to the issue or matter of inquiry.

§ 100. Form of Oath Immaterial. — An oath, as under-
stood in prosecutions under this statute, is one's solemn
asseveration, uttered in an appeal to the Supreme Being,
under the sanction of his religion, that a thing stated or
to be stated by him is true, made to a civil officer author-
ized to administer or receive it. It must, therefore, be a
lawful one; that is, it must be legally administered, by
an officer duly authorized, but the form is immaterial,
provided the witness professes it to be binding on him.
When a witness comes to be sworn, it is to be assumed
that he has settled with himself in what way he shall be
sworn, and he should make it known to the Court, and
should be sworn with uplifted hand, or by any other un-
usual mode, though not conscientiously opposed to swear-
ing on the Gospel, and depose falsely, he subjects himself
to prosecution for perjury. See Clark, Bishop, and Whar-
ton on Perjury. In United States vs. Mallard. 10 Fed-
eral, 151, the Court held that the affiant, being unable to
write, the Commissioner reduced his statement to writing,
ending with the jurat, "Sworn to before me," and said
to him, "If you swear to this statement, put your mark-
here. " The affiant put his mark. This was held to be an
oath. In United States vs. Baer, 6 Federal, 42, the evi-

278 Federal Criminal Law Procedure.

dence of a notary public showed that he had used a form
substantially as that required by the local state statute,
in swearing a witness, and the Court held that the oath
was sufficient to sustain a verdict of guilty of perjury.

§ 101. Competent Tribunal, Officers, Etc. — Having
been satisfied that the person took an oath in some form
recognized as religiously binding, the next question un-
der the statute is whether such an oath was taken before
a competent tribunal, officer, or person, in a case in which
a law of the United States authorized an oath to be ad-
ministered. Under the Common Law, the false testimony
must be in a judicial proceeding, or in the course of jus-
tice; but the statute under consideration includes much
more than the Courthouse testimony and oath. It does
not, however, include every affidavit or declaration. In
United States vs. Babcock, 4 McLean, 113, it was held
that an oath administered to a witness by the Clerk of
the Circuit Court, as to the distance from the Court to
his home, taken by the witness to support his claim for
mileage, was not taken under any law of the United
States, and, therefore, a prosecution for perjury could not
be sustained. In United States vs. Maid, 116 Federal,
650, the Court held that an affidavit of the non-mineral
character of the land, made in support of a homestead
entry, although a regulation of the land office required
such an affidavit to be made in certain states, since it was
not required by Revised Statutes 2290, which prescribed
the contents of a homestead affidavit, would not sustain
a prosecution for perjury.

In United States vs. Howard, 37 Federal, the facts
showed that the defendant entered a homestead claim,
and on application to commute his entry to a cash entry,
he made affidavit that he had actually moved on the land
in December, etc., taking his oath before a Judge of Pro-
bate. The statute did not authorize a Judge of Probate
to administer such an oath; and the Court, upon demur-
rer, held the indictment to be fatally defective, upon the
proposition that the defendant had not taken his oath
before some competent tribunal, officer, or person. In
United States vs. Manion, 44 Federal, page 800, the Court
held that perjury cannot be assigned upon affidavit made

Offenses Against Public Justice.

before a notary public, by a person in support of his
claim to a preference right to purchase coal land under
certain sections of the Revised Statutes, because notaries
public are not authorized by any law of the United States
to administer oaths to affidavits required by the rules and
regulations of the general land office, the regulations
showing that persons desiring to make affidavits for coal
lands must do so before a Register or Receiver of t lie Land
office. Judge Paul, in United States vs. Law, 50 Federal,
915, held that Section 778 of the Revised Statute, which
authorized notaries public to administer oaths in all ea
in which Justices of the Peace had power to administer
them, gave no power to administer an oath in an investi-
gation by the Post-office Department, as to the alleged
loss of a registered letter, for there was no statute which
gave Justices such power, and, therefore, no indictment
for perjury could be based upon false statements in an
affidavit made before a notary public in such an investi-
gation. Before the Act of February 26, 1881, a notary
public had no authority to administer oaths to officers
of national banks for the verification of their reports to
the Comptroller, and false statements in such reports,
where verification was had before a notary public, would
not have sustained prosecution for perjury. United
States vs. Curtis, 107 U. S., 671. An oath taken before a
Commissioner of the Circuit Court in taking bail, where
the laws of the State do not authorize the State officers
mentioned in the statute to administer oaths for similar
purposes, will not sustain a prosecution for perjury.
United States vs. Garcelon, 82 Federal, 611. Under the
authority of United States vs. Lamson, 165 Federal, page
80, an affidavit under Section 6 of the Oleomargarine Act.
which requires wholesale dealers to keep such books and
render such returns as the Commissioner of Internal
Revenue, may, by regulation, require, under prescribed
penalties for its violation, and the regulation thereunder
made requiring an oath to the returns, does not have the
force of law in such sense that a false oath to a return
subjects the maker to prosecution for perjury, and an
indictment so laid was quashed by Judge Brown.

280 Federal Criminal Law Procedure.

§ 101a. Oath Must Be Authorized. — A perjury cannot
be assigned upon an oath that was not authorized or re-
quired by law. In the case of U. S. vs. George, 228 U. S.,
page 14, the Supreme Court of the United States affirmed
the judgment of the lower Court, wherein it was held
that an affidavit made by a homestead claimant in pur-
suance of a regulation promulgated by the Secretary of
the Interior and by the officers of the Land Department,
but which was not authorized or demanded by any law
of the United States, could not be the predicate for the
successful assigning of perjury. The Court observed
that there was a distinction between legislative and ad-
ministrative functions and that under a statutory power
to make regulations an administrative officer could not
abridge or enlarge the conditions imposed by statute.

The bankruptcy statute authorizes the making of
schedules under oath and the examination of the bank-
rupt and various other under-oath proceedings, and per-
jury committed in any of such examinations or disclosures
is venal. Daniels vs. U. S., 196 Federal, 459. Ulmer vs.
U. S., 219 Federal, 641; U. S. vs. Kosenstein, 211 Federal,
738; oaths made in the various steps of a patent applica-
tion are corrupt. Patterson vs. U. S., 202 Federal, 208;
a notary public is a competent officer or tribunal and
authorized to administer oaths. Patterson vs. U. S., 202
Federal, 708. But the affidavit required under Section
4886 by an inventor may not be enlarged by the Com-
missioner of Patents so as to make an assignment of
perjury possible under such enlarged order. Patterson
vs. U. S., 181 Federal, 970. An importer is guilty of
perjury in making an affidavit which was untrue with
reference to concealed or suppressed articles which were
subject to duties, U. S. vs. Salen, 216 Federal, 420.

Grand jurors have authority to administer oaths and
false testimony is perjury. Brzezinski vs. U. S., 198 Fed-
eral, 65.

A United States Commissioner is authorized to ad-
minister oaths as demanded by this statute. Cohen \s.
U. S., 214 Federal, 23.

Offenses Against Public Justice. 281

Sec. 101b. A United States Commissioner is a Com-
petent Tribunal, 252 F. 471.

An oath taken on a Civil Service blank is an offense,
IT. S. vs. Crandol, 233 F. 331.

§ 102. In the following cases, perjury has been suc-
cessfully laid :

False oath by a director of a national bank, before a
notary public. United States vs. Neal, 14 Federal, 767.

Affidavit of an applicant for an entry to land, made be-
fore the clerk of the County Court, United States vs.
Hearing, 26 Federal, 744.

False oath under the Timber Culture Act, which au-
thorized the oath to be administered in the District where
the land is situated. United States vs. Madison, 21 Fed-
eral, 628; United States vs. Shinn, 14 Federal, 447.

False swearing in an affidavit made before a Justice of
the Peace, in conformity to a regulation of the Secretary
of the Treasury. United States vs. Bailev, 9 Peters, 238.

Also where oath is administered by state officer au-
thorized by the usage of the Treasury Department, when
Congress required an oath to be made. United States vs.
Winchester, 2 McLean, 135.

An affidavit made before a Justice of the Peace, to sup-
port a pension claim. United States vs. Boggs, 31 Fed-
eral, 337.

An affidavit made before a notary public, in support of
an application for pension. Noah vs. United States, 128
Federal, 270; also Williamson vs. United States, U. S.
Supreme Court, October Term, 1907.

Officer of the General Land Office of the United States,
hearing a contest with respect to a homestead entry, in
accordance with the rules promulgated by the Interior
Department, constitutes a competent tribunal. Caha vs.
United States, 152 U. S., 211.

A verification of a cashier of a national bank, of a re-
port of the condition of the bank. United States vs. Bar-
tow, 10 Federal, 873.

Judge Speer, in United States vs. Hardison, 135 Fed-
eral, 419, held that where a defendant swore falsely as
to his qualifications to become a surety on a distiller's
bond, before a Deputy Internal Revenue Collector, Iip was

282 Federal. Criminal Law Procedure.

properly charged with perjury, even though the oatli
thereto was taken before a United States Commissioner.

In United States vs. Patterson, 172 Federal, 241, Judge
Woolverton held that a wilful false statement in an oath
to an application for patent, made as required by Section
4892 of the Revised Statutes, that the applicant verily
believes himself to be the original, first, and sole inventor
of the device for which the patent is sought, is of a ma-
terial matter, and constitutes perjury.

In United States vs. Voltz, 14 Blatchf., page 15, the
Court held that the qualification of a surety to a bail bond
is a case within the meaning of the perjury section, and
upon which perjury can be based.

In Brace vs. United States, 149 Federal, 871, a land
affidavit is sufficient, as the foundation for a perjury
prosecution.

Naturalization affidavits, in Schmidt vs. U. S., 133 F.,
257, and U. S. vs. Dupont, 176 F., 823.

102a. Additional Perjury Cases.

False oath to an application for continuance is, Holmes
vs. U. S., 269 F. 96.

An acquittal on the merits usually precludes prosecu-
tion for perjury on such trial, though prosecution may
be had for perjury in subordinating evidential matter,
Youngblood vs. U. S., 266 F. 795.

Oath to application for passports as to length of ac-
quaintance with the applicant is not perjury, U. S. vs.
Robertson, 257 F. 195.

Affidavit to questionary is, Hardwick vs. U. S., 257 F
505.

An oath by homesteader for the General Land office is,
U. S. vs. Morehead, U. S. Sup. Ct. April 1917.

An oath for the restoration of property in bankruptcy
is not "material," Morris vs. U. S., 261 F. 175.

§ 103. Materiality and Wilfulness. — The indictment
must aver unmistakably the materiality of the oath, and
the wilfulness of the falsification. U. S. vs. Ammerman,
176 Federal, 636. A false statement, declaration, or tes-
timony, upon a collateral issue, will not sustain perjury,
and neither will mistake or innocent falseness make one
guilty of the offense.

Offenses Against Public Justice. 283

It is sufficient to charge generally that the false testi-
mony was in respect to a matter material to the issue.
without setting out the facts from which such materiality
appears. If, however, the facts are also stated, and it
clearly appears that the testimony was not material, a
formal allegation of materiality will not save the indict-
ment. United States vs. Pettus, 84 Federal, 791. So,
also, where in an indictment for perjury it is apparent
from the averments that the evidence which is charged
to be false was material, it is not essential to state the
legal conclusion by alleging that the evidence was ma-
terial. The Court being apprised of the facts, may draw
the conclusion without the allegation. So, also,* where
the averments as to the materiality of what is alleged to
have been sworn falsely are defective, the indictment is,
nevertheless, good, if such materiality sufficiently ap-
pears on its face. 30 Cyc, 1435.

§ 103a. Materiality, Continued. — In Hogue vs. U. S.,

184 Federal, 245, the Court held that even though there
was a general allegation of materiality and, thereafter an
attempt to set forth the facts, such facts must in them-
selves show materiality, and in the absence of such show-
ing the indictment would be held defective. Complying
with this rule, a new indictment was drawn in that case
and it was subsequently affirmed in Hogus vs. U. S., 192
Federal, 918. I am firmly of the opinion that it is the law
as supported by the vast majority of decisions that the
indictment must allege the materiality of the statement
complained of which may be done by a simple allegation
or by pleading the facts from which the Court may de-
termine its materiality. U. S. vs. Salen, 216 Federal, 420;
Ammerman vs. U. S., 185 Federal, 1.

The Circuit Court of Appeals, in Ammerman vs. U. S.,

185 Federal, page 1, in which they reversed the same case
shown in 176 Federal, 635, announced the doctrine con-
tended for here that is to, say, that it must be alleged in
the indictment that the matter sworn to was material or
the facts set forth as false must be sufficient in themselves
to show such materiality. U. S. vs. Nelson, 199 Federal.
464; U. S. vs. Ehodes, 212 Federal, 518; Markham vs.
U. S., 160 U. S., 325. If an indictment alleges materiality

284 Fedekal Criminal Law Procedure.

but thereafter shows that the alleged false statements
were not material, then no offense is plead; U. S. vs.
Rose, 212 Federal, 518. A general averment of material-
ity is sufficient. Baskin vs. U. S., 209 Federal, 740; Hen-
dricks vs. U. S., 223 U. S., 178.

Sec. 103b. Materiality Continued.

See Morris vs. U. S., 261 F. 175.

Illustrations of "non-material" oath see Epstein vs.
U. S., 271 F. 282.

§ 104. Sufficiency of Indictment. — As before noticed,
great particularity was required at Common Law; and
while procedings of the Federal Courts are assimilated
to the Common Law forms, all Federal crimes are stat-
utory, and the Common Law rules in passing upon the
sufficiency of a perjury indictment in the Federal Court
would necessitate the same strictness with reference to
its proper alleging as did the Common Law, but Congress
provided a saving statute in Section 5396 of the old stat-
utes, which is still the law, and reads as follows:

"In every presentment or indictment prosecuted against any person
for perjury, it shall be sufficient to set forth the substance of the offense
charged upon the defendant, and by what court, and before whom the
oath was taken, averring such court or person to have competent
authority to administer the same, together with the proper averment
to falsify the matter wherein the perjury is assigned, without setting
forth the bill, answer, information, indictment, declaration, or any
part of any record or proceeding, either in law or equity, or any
affidavit, desposition, or certificate, other than as hereinbefore stated,
»"d without setting forth the commission or authority of th3 conr+.
or person before whom the perjury was committed."

The ordinary rules of criminal pleading, and the above
statute being clearly in mind, all that is necessary under
the Federal statute is to draw the bill in such plain and
intelligible terms, and with such particularity as to ap-
prise the accused with reasonable certainty of the offense
for which he is sought to be punished, and state the sub-
stance of the controversy upon which the false oath was
taken, specify the Court or officer by whom it was ad-
ministered, aver or show that such Court or officer had
authority to administer an oath, allege the falsity of the
oath, and assign perjury thereon. Noah vs. U. S., 128

Offenses Against Public Justice.

Federal, 270; U. S. vs. Cuddy, 39 Federal, 696; U. S.
vs. Walsh, 22 Federal, 622; Markham vs. {'. S.. L60 U.
S., 319, 40 Law Ed., 441, 30 Cyc., 1425. This section de-
mands that the oath must have been wilful and an alle-
gation that it was corruptly taken is not sufficient. The
indictment must allege that the oath was wilfully taken.
United States vs. Edwards, 43 Federal, 57; U. S. vs.
Lake, 129 Federal, 499; United States vs. Hearing, 26
Federal, 744.

Wilfulness and a corrupt intent being essential ele-
ments of the crime of perjury, evidence to prove such
issues goes to the very substance of the offense, and is,
therefore, admissible. All of the record, including the
judgment of the case in which the perjury is alleged to
have been committed is, therefore, admissible upon the
question of motive. If perjury were committed by one
in his own defense in the trial of a criminal case, the in-
dictment and judgment would be admissible, not for the
purpose of showing that the defendant had been con-
victed of an offense, but for the purpose of showing his
motive to testify untruly in the original case; but it is
thought that the Court should limit the consideration of
the judgment by proper instructions, to the considera-
tion of motive alone, or inducement, as some authorities
put it. A judgment so introduced and so restricted by
the Court, is material and competent. In United States
vs. Berkhardt, 31 Federal, 141, the trial Court set aside
a judgment of conviction of perjury, because he had
admitted the judgment in the original case for all pur-
poses, and without limiting it, Wharton, Criminal Evi-
dence, Section 602a. The same rights that exist in favor
of the prosecution to show the corrupt motive and wil-
fulness are equally pertinent for the defense, and it is
at all times admissible and competent for him to show the
lack of corrupt motive, or to rebut the existence of such
a motive.

§ 105. Proof. — Perjury must be proven by two wit-
nesses, or by onse witness and corroborating circum-
stances, and the jury should be informed, in some pari
of the instructions, that before they can convict, the tact
that the oath was false must be shown to their satisfac-

286 Federal Criminal Law Procedure.

tion in such way; and it is thought in this connection
that the instructions must also somewhere inform the jury
what is meant by "corroborated." State vs. Hunter, 181
Missouri, 316; 80 S. W., 915; People vs. Wells, 103 Calif.,
631; U. S. vs. Hall, 44 Federal, 864.

§ 105a. Proof, Continued. — As stated in the foregoing-
paragraph proof must be by two witneses or by one wit-
ness with corroborating circumstances. Kahn vs. U. S.,
214 Federal, 54; Allen vs. U. S., 194 Federal, 664.

§ 105b. Other Cases. — Perjury committed during the
trial on oneself. In Allen vs. U. S., 194 Federal, 664, the
Court of Appeals for the Fourth Circuit said that one
may be convicted of perjury for testifying falsely in his
own behalf wherein he was acquitted, but the government
should not institute a prosecution for perjury on sub-
stantially the same evidence presented on the first trial.

In that opinion the Court mentions authorities suit-
porting the position that one may be indicted for swearing
falsely on his own trial, and also cites authorities against
the correctness of that doctrine. In the latter list of
cases, however, it fails to notice or mention the case of
Coffey vs. U. S., 116 U. S., 436.

In the Coffey case the Supreme Court of the United
States, speaking through Judge Blatchford, said: "Where
an issue raised as to the existence of the Act or fact de-
nounced has been tried in a criminal proceeding instituted
by the United States, and a judgment of acquittal has
been rendered in favor of a particular person, that judg-
ment is conclusive in favor of such person on the subse-
quent trial of a suit in rem by the United States where,
as against him the existence of the same Act or fact is
the matter in issue, as a cause for the forfeiture of the
property prosecuted in such suit in rem."

See also the case of Chelson vs. Hoyt, 3 Wheat., 245, 4
L. Ed., 381; U. S. vs. McDee, 4 Dill., 128; Murff vs. State,

68 Tex. Crim. App. . There should be no attempt by

the Government and its prosecuting officers to disregard
the verdict and judgments of its own Courts by seeking
one jury to find that another gave a wrong verdict upon
what is in all material respects the same testimony.

Offenses Against Public Justice. 287

Sec. 105c. Other Cases Continued.

An indictment alleging that the oath was taken before
a "District Judge," the proof followed that the oath was
taken before the court and administered by the clerk,
held sufficient, in, West vs. IT. S., 258 F. 413.

§ 106. Subornation of Perjury.— Section 126 of the
new Code reads as follows:

"Whoever shall procure another to commit any perjury is guilty
of subornation of perjury, and punishable as in the preceding section
prescribed,"

which are the substantial words of old Section 5::!):!.
An indictment is sufficient which alleges that the witness
knew the testimony to be false and that the defendant,
knowing it was perjury, procured her to commit it. Bab-
cock vs. United States, 34 Federal, 873; United States
vs. Thompson, 31 Federal, 331. In United States vs.
Dennee, 3 Woods, (U. S.) 39, the Court held that an in-
dictment must allege that the defendant knew that the
testimony which he instigated the witness to give was
false, and the defendant knew that the witness knew that
the testimony she was instigated to give was false. The
same particularity and accurateness is required in an
indictment under this section, and the same general law-
relates thereto, as under that for perjury. The following
cases may be interesting:

U. S. vs. Evans, 19 Federal, 912.

U. S. vs. Howard, 132 Federal, 325.

U. S. vs. Cobban, 134 Federal, 290.

IT. S. vs. Brace, 144 Federal, 869.

U. S. vs. Boren, 144 Federal, 801; 30 Cyc, at page L440,
gives the following elements of an indictment for subor
nation, with supporting authorities, which it is thought
is the law:

"An indictment for subornation of perjury, must state all the
essential elements constituting the crime of perjury, as well as of sul>-
oration of perjury. It must set forth the nature of the proceeding in
which the alleged perjury was committed; the court or officer in which,
or before whom, the false oath was taken; that the witness was duly
sworn; that the testimony was material, and false; that defendant
knowingly and wilfully procured another to swear falsely; that the
party did knowingly swear falsely; that defendant knew that the

288 Fedeeal Ceiminal Law Peoceduee.

testimony of the witness would be false; and that he knew that the
witness knew said testimony was false."

A charge of subornation of perjury may be joined with
a charge of perjury in the same indictment, and the per-
jurer and the suborner may both be included in it. Com-
monwealth vs. Devine, 155 Mass., 224; 29 N. E., 515.

§ 106a. Attorney Suborning. — An attorney who ad-
vises a witness to testify falsely before a United States
Commissioner in order that she might assist to obtain the
discharge of her husband, is guilty of subornation, even
though the indictment charging such uses the word
" trial" and the word "issue," in presenting the case,
and even though a trial and an issue within the technical
meaning of those words cannot be held before a United
States Commissioner. Cohen vs. U. S., 214 Federal, 23.

Subornation may be successfully laid against one who
induces two entrywomen to make false affidavits to the
settlement, residence and cultivation of the lands as re-
quired by Section 2291 of the Eevised Statutes. Hallock
vs. U. S., 185 Federal, 424.

§ 106b. Elements of Subornation. — 1. A witness
must have testified falsely knowing or believing the tes-
timony to be false. (2) The accused must have known
or believed that the testimony would be false. (3) The
accused must have known or believed the witness would
give the false testimony with like knowledge or belief.
(4) The accused must have induced or procured the wit-
ness to do so. Hallock vs. U. S., 185 Federal, 417; 2nd
Vol. Bishop's New Criminal Law, Section 1197. Inciting
to false swearings which are not perjuries is not suborna-
tion of perjury. Bishop New Criminal Law, Vol. 2, page
689.

§ 107. Stealing or Altering Process ; Procuring False
Bail, Etc. — Old Section 5394 is practically re-enacted in
Section 127 of the new Code, except that under the old
statute the Court was not authorized to impose both pen-
alties of fine and imprisonment. The new section reads
as follows:

"Whoever shall feloniously steal, take away, alter, falsify, or other-
wise avoid any record, writ, process, or other proceeding, in any court

Offenses Against Public Justice.

of the United States, by means whereof any judgment is reversed,
made void, or does not take effect; or whoever shall acknowledge,
or procure to be acknowledged, in any such court, any recognizance,
bail, or judgment, in the name of any other person not privy or con-
senting to the same, shall be fined not more than five thousand dollars,
or imprisoned not more than seven years, or both; but this provision
shall not extend to the acknowledgment of any judgment by an attor-
ney, duly submitted, for any person against whom such judgment is
had or given."

Most of the annotators cite United States vs. Crecilius,
34 Federal, page 30; Barber vs. United States, 35 Fed-
eral, 886, and 5 Attorney General's Opinion, 523.

The two first eases contain practically no assist nine by
decision or argument, for the construction of the statute.
In one of them the word "alter" is treated at some in-
considerate length. Andersen's Dictionary of Law de-
fines the word alter to mean "to make a thing different
from what it was." The definition in the Century Dic-
tionary is practically the same, and is in the following
words: "to become different in some respect; to vary;
to change."

The statute, of course, does not make an innocent,
thoughtless, or mistaken alteration or falsification an
offense. The charge must include an unlawful and fe-
lonious alteration or falsification.

The statute also includes the acknowledgment of any
recognizance or bail or judgment by one in the name of
another without authority.

§ 108. Obstructing Process, or Assaulting an Officer,
Etc. — In the new Code Section 140 takes the place of
Section 5398 in the 1878 statutes. The new section, which
reads as follows:

"Whoever shall knowlingly and wilfully obstruct, resist, or oppose
any officer of the United States, or other person duly authorized, in
serving, or attempting to serve or execute, any mesne process or
warrants, or any rule or order, or any other legal or judicial writ or
process of any court of the United States, or United States Commis-
sioner, or shall assault, beat or wound any officer or other person duly
authorized, knowing him to be such officer, or other person so duly
authorized, in serving or executing any such writ, rule, order, pro.
warrant, or other legal or judicial writ or process, shall be fined not
19

290 Federal Criminal Law Procedure.

more than three hundred dollars, and imprisoned not more than one
year.''

contains some interpolated phrases that seem to strength-
en and broaden the old statute. In other words, under
the new statute, the words, "or other person duly author-
ized" would protect any person who happened to be a
messenger conveying any Court process, though such
person would not be an officer of the United States, with
in the meaning of the decisions, which requires a person
to have been nominated and commissioned by the Execu-
tive Department. So also, the words, "or any other legal
or judicial writ or process" are placed in the new stat-
ute; and to meet that line of decisions which has held in
contempt proceeding that a United States Commissioner
does not hold any United States Court, and is, therefore,
not a Court, or judge, the statute specially includes the
words, "or United States Commissioner."

The new statute also includes the words "knowing him
to be such officer or other person so duly authorized,"
which is but an enactment of what the best authorities
had already determined was necessary before one could
be convicted for an alleged violation of the Section. Nec-
essarily, one who, by mistake or without knowledge, ob-
structed process or an officer should not be prosecuted.

In United States vs. Terry, 41 Federal, 771, Judge
Ross held that the Section related to an oral order of a
Court, to remove from a Court room a prisoner who was
disturbing the proceedings of a Court. In that case, it
was conceded in argument, and is recognized by the
Court in his opinion, that at the time the defendant re-
sisted the marshal who attempted to eject her from the
court room under the order of the Judge, that such order
was oral, and had not been entered of record. The dis-
tinction is drawn in the following words:

"Undoubtedly, in judicial proceedings, an 'order' as distinguished
form a 'judgment' is often defined as one reduced to writing and en-
tered in the records of the Court, and such is the purport of many of
the cases referred to by counsel for the defendant, but this is by no
means saying that such only is an order. There must, in the nature
of things, be an order of a Court made before it is, or can be, writ-

Offenses Against Public Justice. 29]

ten out in the records of the Court by the Clerk. When writ!
out, the writing becomes a record of the order, and is evidence of it.
Orders are almost daily given to the Marshal concerning matters to
be performed in the presence 01 the Court, and they are as constantly
executed before being written out. Indeed, many of them are never
reduced to writing at all. Yet there can be no doubt of their validity.
The language of the statute in question is broad enough to include all
valid oral orders. The natural ordinary meaning of the word includes
written, as well as unwritten orders, and there is no reason in the pol-
icy of the law or in the nature of things, for excluding unwritten orders.
Indeed, the contrary is true. There is just as much reason and neces-
sity for making it an offense to resist the execution of a lawful un-
written order, brought distinctly and authoritatively to the notice
of the offending party, as for making it an offense to resist the exe-
cution of one in writing." United States vs. Terry, 41 Federal, 773.

The essential elements of a charge under this section
are three: first, the issuance of a legal process, warrant,
writ, rule, or order, by a Court of the United States or a
United States Commissioner; second, that such legal
process, warrant, writ, rule, or order, after the same was
issued, was in the hands of some officer of the United
States, or other person duly authorized, for service; and,
third, that such legal process, warrant, writ, rule, or
order was knowingly and wilfully obstructed or inter-
fered with. United States vs. Tinklepaugh, 3 Blatchf.,
425. If the Tinklepaugh case seems in a measure to con-
flict with the Terry case, reason and public justice would
seem to demand that the Terry case be the ranking au-
thority.

It must be borne in mind that it is not at all necessary
that actual force be used in obstructing. Passive force,
such as the congregation of a large number of individ-
uals, knowingly and determinedly, in the way of the
officer who is attempting to serve the writ or process,
would be within the decisions, and within reason, an ob-
struction which would come within the statute. Such
was the construction used by the Court in charging a
grand jury in 2 Curtis, 637; 30 Federal Cases, No. L8250.
Obstruction must, therefore, under the authorities, in-
clude not only resistance but all impediments or opposi-
tion or obstacles, as outlined in the case of the United
States vs. McDonald. 8 Biss., 439; 26 Federal Cases, No.

292 Federal Criminal Law Procedure.

15667. The lexicographers, in treating the word "ob-
struct," determine it to mean "to impede or retard ac-
tion; to hinder; to render passage difficult or impossible;
to pile up against." The ordinary meaning of the word,
therefore, has been accepted in its lawful interpretation,
when used in the statute under discussion. The officer
is not obliged to risk his life, or expose himself to person-
al violence. Threats by a person in possession is a viola-
tion, as has been determined in United States vs. Lowrv,
2 Wash., 169; 26 Federal Cases No. 15636; U. S. vs.
Smith, 1 Dill, 212; 27 Federal Cases No. 16333. If one in
possession of property opposes and obstructs the execu-
tion of a writ of possession by refusing to yield posses-
sion, and by threats of violence, he has committed an of-
fense against this statute. United States vs. Lowry, 2
Wash., 169; 26 Federal Cases, No. 15636.

Under this statute, a state jailer who holds Federal
prisoners by commitments from United States Courts
under the statute of a State, is protected, and a forcible
release of a prisoner in his hands would be an offense
against this statute, as well as the statute for rescuing a
prisoner, which is new Section 143 and old Section 5401.
See in this connection, Matthews vs. United States 32
Court of Claims, 123. By following the cases of Blake vs.
United States, 71 Federal, 286; United States vs. Mullin,
71 Federal, 682; and United States vs. Cover, 46 Fed-
eral, 284, in construing an indictment under this section,
there can be no difficulty at arriving at its lawful essen-
tials and ingredients. The allegation of knowledge can
be included generally, it is thought, in the words know-
ingly and wilfully in the first part of the bill, for they
will, therefore, be construed to apply to each of the nec-
essary averments of substance, though it may be con-
sidered the best pleading, and surely pleading that leaves
no room for doubt, if the allegation of knowledge is re-
peated in the body of the bill, with reference to the proc-
ess and the person handling the same. In other words,
in addition to the general words knowingly and wilfully
at the first part of the indictment, let the pleading show
that the person charged knew that the person attemping
to serve the writ or order was an authorized person, and

Offenses Against Pubuc Justice. 293

really had a writ or order from a competent tribunal or
Court, as the ease may be. In the case of United States
vs. McDonald, 8 Biss., page 439, the Court held that the
custodian of property for the Marshal was an officer
within the meaning of the old Section. In United States
vs. Martin, 17 Federal, 150, the Court held under a prose
cution for a violation of the old section that a Deputy
Marshal was an officer of the United States, within the
meaning of the section, as is also the keeper of a State-
jail, and process issued by a Commissioner of the Circuit
Court, under Section 1014 of the Revised Statutes, in
causing the arrest or imprisonment of a person, was en-
titled to the protection of the provisions of the section.

The discussion of the Judge in the 13 Federal, United
States vs. Huff, at page 639, of the words "disobedience"
and "resistance" under a prosecution for violations of
Sections 5359 and 5360, will be found to be in line with
the views heretofore expressed with reference to there
being no distinction between the definitions of the words
as found in the dictionaries and as found in the decisions
of the Courts.

Of course, there is no offense when one resists unau-
thorized arrest. A reasoning under a case of this sort
will be found in the case of the United States vs. Mundell,
1 Hughes, 415; 27 Federal Cases, No. 15834.

Blackstone, in his division of crime, made five heads:
first, offenses against God and religion; second, offenses
against the law of nations; third, offenses against the
king and Government; fourth, offenses against the com-
monwealth, as against public justice, public peace, public
trade, public health, public economy; fifth, offenses
against individuals — that is, against their persons, their
habitations, and their property.

Of course, such division is arbitrary, but serves to
furnish a plan for the student and the legislator. The
offense we are considering comes under the fourth head,
and at Common Law included many things, such as re-
sisting arrest or process, obstructing officers, rescue, es-
capes, preventing attendance, briberies, perjuries, and
contempts, etc. Mr. Bishop says that "no government is

294 Federal Criminal Law Procedure.

perfect, and some are simply terrible, but the worst is
immeasurably better than none." To interfere, there-
fore, with the performance of an official function, is a
most serious concern, since the public good requires a
due performance of all official functions, and any person
who interferes therewith is an enemy to the Government.

§ 108a. Advice to Avoid Service of Process May Be
Obstruction. — One who advises and induces another to
leave the country to avoid service of a grand jury sub-
poena is guilty of impeding the administration of justice.
Heinz vs. U. S., 181 Federal, 323.

Sec. 108b. Obstructing Processes Continued.

A peron need not be present to be guilty, but he must
have knowledge, etc., Coleman vs. U. S., 268 F. 468.

§ 109. Destroying or Stealing, Etc., Public Records.

Section 128 of the new Code, which changes materially,
in both wording and punishment, old Section 5403, reads
as follows:

"Whoever shall wilfully and unlawfully conceal, remove, mutilate,
obliterate, or destroy, or attempt to conceal, remove, mutilate, obliter-
ate, or destroy, or, with intent to conceal, remove, mutiltate, obliterate,
destroy, or steal, shall take and carry away any record, proceeding,
map, book, paper, document, or other thing filed or deposited with any
clerk or officer of any court of the United States, or in any public
office, or with any judicial or public officer of the United States, shall
be fined not more than two thousand dollars, or imprisoned not more
than three years, or both."

The very wording of the statute itself incorporates the
idea that there must be the specific intent to destroy or
steal, or do the things denounced by the statute. Where-
ever the word "wilful" is used, or wherever the context
of the statute clearly indicates that it should be read
into the body of the Act, such specific intent is absolutely
necessary, before the offense can be committed. In Unit-
ed States vs. De Groat, 30 Federal, 764, the facts showed
that the Government, for want of space, had stored a vast
quantity of old Internal Revenue records in an out-house,
from which they were stolen by the defendants, and sold
as waste paper to junk dealers. The Court, in instructing
a verdict of not guilty, told the jury in substance that

Offenses Against Public Justice. 29a

the Act was for the specific purpose of the protection of
records, and did not carry punishment for mere thefl
of Government property, and the case not showing any
intent on the part of the defendants to destroy records,
but only to steal something that belonged to another,
would not support an indictment under old Section 5403.
It must be borne in mind, however, that the old Com-
mon Law definition of record and document is not to be
used in circumscribing and limiting the purpose of the
statute under discussion. It was manifestly intended to
protect all sorts of Court and public office records, includ-
ing all papers that are filed, whether such papers be ac-
curately or inaccurately drawn. To this purpose and
construction is the case of Mclnerney vs. United States,
143 Federal, 729, by the Circuit Court of Appeals for
the First Circuit. In that case, the Court held in sub-
stance that the rule that a criminal or penal statute must
be strictly construed does not mean that its language
must be given the narrowest interpretation, but contem-
plates a reasonable construction, in aid of the purposes
of the Act, and Courts should adopt that sense of the
words which harmonize best with the context, and pro-
motes in the fullest manner the apparent policy and
objects of the legislature; and, therefore, the statute
under consideration, which makes it a criminal offense
to steal or destroy any record, paper, or proceeding of a
Court of justice, or any paper or document or record filed
or deposited in any public office or with any judicial or
public officer, will not be construed so as to limit the
meaning of the word "record" and "document" to the
technical Common Law record of Courts as unrolled, or
to technical documents, but will be used in the ordinary
and common sense, and include all and every part, not-
only of such technical records or documents, but of any
paper filed, which becomes a part of the records of the
Court or office, and that a prosecution for stealing or de-
stroying a record of a Court cannot be defeated by si low-
ing that the record was technically imperfect or Lncor
rectly kept. The following cases may be interesting upon
one or the other phases of the statute: People vs. Bussey,
82 Mich., 49; State vs. Bloor, 20 Mont., 574; People vs.

296 Federal Criminal Law Procedure.

Peck, 138 N. Y., 386; ex parte Tongue, 29 Oregon, 48;
Georgia vs. Jennings, 50 S. C, 156.

§ 110. Destroying Records by Officer in Charge. —
Old Section 5408 is practically re-enacted in Section 129,
which reads as follows:

"Whoever, having the custody of any record, proceeding, map,
book, document, paper, or other thing specified in the preceding section,
shall wilfully and unlawfully conceal, remove, mutilate, obliterate,
falsify, or destroy any such record, proceeding, map, book, document,
paper, or thing, shall be fined not more than two thousand dollars,
or imprisoned not more than three years, or both; and shall more-
over forfeit his office and be forever afterward disqualified from
holding any office under the Government of the United States."

The substance of this section, as well as the substance
of Section 128, were in the original Act of February 26,
1853, 10 St. at Large, 170, and are companion statutes.
It is necessary, in prosecutions under Section 129, that
the party have lawful custody of the record or other
document or paper, as the case may be, before the penalty
under this statute can be inflicted. In Martin vs. United
States, 168 Federal, 198, the Circuit Court of Appeals of
the Eighth Circuit held that a Clerk in the office of one
who had charge of certain Government records could not
be prosecuted under this section, because he was not
lawfully "in custody." The meat of that decision is
that "custody" means keeping and implies responsibility
for the protection and preservation of the person or thing
in custody; and a document in a public office in the gen-
eral custody of a Commissioner, and in the particular
custody of his Chief Clerk, under whom five or six subor-
dinate clerks are employed, who have access to it, in
order to discharge their duties, is not in the custody
of one of the latter. There is this difference, however,
in the old and new sections: the old section contained
the word "fraudulently," while the new section contains
the word "wilfully.'1 Under the old section, an intent
to injure or alter the rights or interests of another, or
an effect to so injure or alter some of them was essential
to a fraud, and in the absence of such intent, attempt,
and effect, an act could not be done fraudulently under

Offenses Against Public Justice. 297

that section. Martin vs. United States, 168 Federal, L98.
Under the instant section, however, fraudulent intenl is
not an ingredient. This section, like the preceding, de-
nounces the acts therein specified when they arc wilfully
done; that is, when they are committed with the specific
intent, as defined in Mclnerney vs. United States, L43
Federal, 729, cited and discussed supra.

Under the authority of Martin vs. United States, an
indictment drawn in the language of the statute would he
insufficient.

§ 111. Forging Signature of Judge, Etc.— Section 130
of the new Code re-enacts Section 5419 of the old Stat-
utes, and reads as follows:

"Whoever shall forge the signature of any judge, register, or other
officer of any court of the United States, or of any Territory thereof,
or shall forge or counterfeit the seal of any such court, or shall
knowingly concur in using any such forged or counterfeit signa-
ture or seal, for the purpose of authenticating any proceeding or
document with a false or counterfeit signature of any judge, register,
or other officer, or a false or counterfeit seal of the court subscribed
or attached thereto, knowing such seal to be false or counterfeit,
shall be fined not more than five thousand dollars, and imprisoned not
more than five years."

An indictment under the latter portion of this section,
which relates to the use of any false signature or counter-
feit seal, would be fatally defective, unless it alleged
that the act was knowingly done.

Certificate of Bankruptcy, register subject of. See ex
parte Parks, 93 U. S., 18. '

§ 112. Intimidation or Corruption of Witness or
Grand or Petit Juror or Officer. — Section 135 of the new
Code contains all of the. elements of the old Statutes 5399
and 5404, changing the punishment of both, and incor-
porating new words and a somewhat broader meaning,
and reads as follows:

"Whoever corruptly, or by threats or force, or by any threatening
letter or communication, shall endeavor to influence, intimidate, or
impede any witness, in any court of the United States, or before any
United States Commissioner, or officer acting as such commissioner,
or any grand or petit juror, or officer in or of any court of the United
States, or officer who may be serving at any examination of other pro-

298 Federal Criminal Law Procedure.

ceeding before any United States Commissioner or officer acting as
such by threats or force, or by any threatening letter or threatening
communication, shall influence, obstruct, or impede, or endeavor to
influence, obstruct, or impede the due administration of justice therein,
shall be fined not more than one thousand dollars, or imprisoned not
more than one year, or both.''

The offenses covered by this section are not new. They
are Common Law crimes. The word "corrupt," as used
in each portion of the statute, is defined by Bishop to
mean an evil purpose, and is not restricted to the form
of evil. No particular definition of the sort of corruption
or threats or intimidation or force can be given. The
length and breadth of the same must depend upon the
facts of the particular case, as coming, within the judg-
ment of a jury and Court, within the purview of the stat-
ute, and which would, if left unpunished, result in a
perversion of trammeling of our courts, witnesses, of-
ficers, or litigants. When such would appear to be the
natural result of something done or undone, then the
statute would seem to apply. In the case of Wilder et
al vs. United States, 143 Federal, 433, a form of indict-
ment is given that was approved by the Circuit Court of
Appeals for the Fourth Circuit, and a state of facts which
showed that the defendant corruptly endeavored to in-
duce other persons to have knowledge of facts in a civil
case which would be material to a party to conceal or
deny their knowledge, so as to prevent such party from
obtaining knowledge or procuring evidence of such facts,
was a violation of the old Section 5399, which is, in a
large measure, the first part of the new Section. In
that case, certain parties to a civil action arranged and
agreed to testify with reference- to certain corner trees
that were supposed to be the starting point and one of
the boundary lines of the tract of land in controversy.

The words "due administration of justice" import a
free and fair opportunity to every litigant in a pending
case in a Federal Court to learn what he may learn, if
not impeded or obstructed, concerning material facts,
and to exercise his option as to introducing testimony of
such facts, and a violation of this law may consist in

Offenses Against Public Justice. 299

preventing a litigant from learning facts which he mighl
otherwise learn, and in thus preventing him from de
ciding for himself whether or not to make use of such
facts.

Pettibone vs. United States.— The ranking authority
under these statutes is probably the case of Pettibone vs.
United States, 148 U. S., 197, 37 Law Ed., 41'.). The case
gives excerpts from the indictment. The following prop-
ositions are announced in the case, which musl be rec<
nized and adhered to in drafting indictment:

1. There must be a specific allegation of an intenl to
obstruct the administration of justice in the Federal
Court.

2. There must be an allegation that the defendant
knew of the proceedings that he was interfering with.
The indictment must, therefore, contain the words know-
ingly and wilfully. The general doctrine of the penal
law that ignorance of the law constitutes no defense to
an indictment for their violation, is a rule that has no
application here. Knowledge of the court proceedings
and of the relation thereto of the party intimidated or
otherwise improperly approached is necessary. Among
the cases cited by the Court in the Pettibone case is
United States vs. Bittinger, (Mo.), 15 Am. Law Reg. N.
S., 49, 24 Federal Cases No. 14,598, in which it was held
that a person is a witness, under Section 5399, who is
designated as such, either by the issue of a subpoena or
by the endorsement of his name on the complaint, but
that before anyone could be said to have endeavored to
corruptly influence a witness under that Section, he musl
have known that the witness had been properly desi
nated as such. Under this authority, the designation of
a witness by the District Attorney, as the including of
the name of the witness in the complaint, or in the grand
jury docket, or by issuing a subpoena therefor, would be,
it seems, sufficient. In United States vs. Kee, 39 Federal,
603, the Court instructed the jury that the defendanl
would be guilty of violating 5399, when he beats one sum-
moned as a witness before a United States Commissioner,
for the purpose of intimidating or influencing him in giv-
ing his testimony, but if the defendant did not know that

300 Federal Criminal Law Procedure.

the one was a witness before the United States Commis-
sioner, and beats him, on account of insulting language,
the beating having no relation to the character of the
party as a witness, he would not be guilty of a violation
of the section. In United States vs. Keen, 5 Mason, 453,
it was held that it was no defense to an indictment for
forcibly obstructing or impeding an officer of the customs
in the discharge of his duty that the object of the party
was personal chastisement, and not to obstruct or impede
the officer in the discharge of his duty, if he knew the
officer to be so engaged. It is the official character that
creates the offense, and the scienter is necessary.

In Savin's Petitioner, 131 U. S., 267; ex parte McLeod,
120 Federal, 10; in re Brule, 71 Federal, 943, the position
is taken that the mode of punishment prescribed by these
old sections was not exclusive, if the offense was com-
mitted under such circumstances as to bring it within
Section 725, which authorizes the Court to punish for
contempts. In Sharon vs. Hill, 24 Federal, 726, it was
held that the carrying of weapons into a court room,
while Court was in session, and threatening the life of
the lawyer and counsel engaged in conducting the litiga-
tion was an offense under this statute, as was also the
assaulting of a commissioner in United States vs. Mc-
Leod, 119 Federal, 416.

Under the authority of United States vs. Thomas, 47
Federal, 807, and United States vs. McLeod, 119 Fed-
eral, 416, which is supported by the intent and purpose
of the statute, there must be a pending cause. In the
Thomas case, Thomas was a witness on behalf the United
States before a United States Commissioner. The cause
was dismissed. Two months afterwards Thomas was
assaulted and beaten by a gang of men at his house in
the night time. The men were indicted under Section
5399. The position was taken by the defendant, and
sustained by the Court, that as Thomas was not, at the
time of the beating, a witness in any Court of the United
States, or in any cause pending therein, the defendant
could not be prosecuted under that section. In this con-
nection, also may be cited ex parte Robinson, 19 Wallace,
505; in re Nagle, 135 U. S., 63; U. S. vs. Memphis Rail-

Offenses Against Public Justice. 01

road Company, 6 Federal, 237; U. S. vs. Kilpatrick, L6
Federal, 765; U. S. vs. Polite, 35 Federal, 58; in re Nagle,
39 Federal, 833; U. S. vs. Armstrong, 59 Federal, 51
In in re Brule, 71 Federal, 943, District Judge Eawley
held upon a contempt proceeding, that the bribing of a
person who is known to be a material witness in a pend-
ing cause to hide himself and remain away from the
Court, thereby preventing his testifying in such case, is
punishable by indictment under Section 5399.

§ 112a. Illustrations of Intimidation. — The protection
of the statute reaches grand jury proceedings. Davy vs.
U. S., 208 Federal, 238; Heinze vs. U. S., 181 Federal,
322. An effort by threats and force to influence and in-
timidate witnesses before a United States Commissioner
is within the statute. Charles vs. U. S., 213 Federal. 717.

Sec. 112b. Intimidation, etc., of Witnesses and Others
Continued.

See U. S. vs. Russell, 41 Sup. Ct. Rep. 300; IT. S. Sup.
Ct. Rep. Apr. 1921.

The alteration of records is "corruptly impeding jus-
tice," Bosselman vs. U. S., 239 F. 82.

See also Sec. 114.

§ 113. Conspiring to Intimidate Party, Witness, or
Jury. — Section 136 of the new Code, which supersedes
old Section 5406, reads as follows:

"If two or more persons conspire to deter by force, intimidation,
or threat, any party or witness in any court of the United States, or
in any examination before a United States Commissioner or officer
acting as such commissioner, from attending such court or examina-
tion, or from testifying to any matter pending therein, freely, fully, and
truthfully, or to injure such party or witness in his person or prop-
erty on account of his having so attended or testified or to influence
the verdict, presentment, or indictment of any grand or petit juror
in any such court, or to injure such juror in his person or property,
on account of any verdict, presentment or indictment lawfully assent-
ed to by him, or on account of his being or having been such juror,
each of such persons shall be fined not more than five thousand
dollars, or imprisoned not more than six years, or both."

The old section contained a minimum punishment of six
months.

302 Federal Criminal Law Procedure.

The most interesting change in the new section is the
addition of the words, "or in any examination before a
United States Commissioner, or officer acting as such
commissioner." The Supreme Court of the United
States, in the ease of Todd vs. United States, 158 United
States, page 278, Book 39 Law Ed., 982, held that a pre-
liminary examination before a Commissioner is not a
proceeding "in any court of the United States" within
the meaning of the old Section 5406. In that case the
Court observed that it doubtless was within the power of
Congress to legislate so as to fully protect every witness
called upon by the laws of the United States to give tes-
timony in any case and under any circumstance, but that
the wording of 5406 limited such protection to those who
head dealing with a "court" of the United States. Un-
der the new section, as above quoted, Congress has seen
fit to legislate as suggested by the Supreme Court, and
the present statute, therefore, punishes all conspiracies
to deter by either force, intimidation, or threat, any party
or any witness in any court of the United States, or in
any examination before a United States Commissioner,
or officer acting as such commissioner.

This legislation was made necessary because of the de-
cision in the Todd case, and because of that line of deci-
sions therein cited, which clearly distinguished United
States Commissioners and Circuit Court Commissioners
from Judges and United States Courts.

The form of indictment given in the Todd case is
thought to contain all of the elements that are necessary
in charging an offense under the new statute, with the
possible exception that the bill could be made stronger,
and undoubtedly good, if it contained an allegation of
knowledge.

Sec. 113a. Conspiracy to Intimidate Party, etc., Con-
tinued.

A conspiracy to prevent a witness from testifying in
a land contest is an offense under this section, Foss vs.
U. S., 266 F. 881.

§ 114. Attempt to Influence Jury. — New Section 137,
in the following words:

Offenses Against Public Justice. 303

"Whoever shall attempt to influence the action or decision of any
grand or petit juror of any court of the United States upon any issue
or matter pending before such juror, or before the jury of which he
is a member, or pertaining to his duties, by writing or sending to him
any letter or any communication in print or writing, in relation to
such issue or matter, shall be fined not more than one thousand dollar--.
or imprisoned not more than six months, or both."

replaces old Section 5405.

There have been few, if any, adjudications under this
section, as disclosed by the annotators and court reports.
It is almost universal in its broadness, and would seem to
cover practically any communication. In United States
vs. Kilpatrick, 16 Federal, 765, is a distinguished Court
opinion covering communications by officers and others
to grand jurors, and, in general, the conduct of such body.

This statute, in connection with Sections 135 and 132,
are intended directly, and primarily for the preservation
of the purity of the juror in the performance of his of-
ficial duty.

Sec. 114a. Attempt to Influence Jury.

An attorney drinking, etc., with a jury is in contempt
of the court in re Kelly, 243 F. 696; see also Sec. 112.

§ 115. Allowing Prisoner to Escape.— Section 138 of
the new Code is in the exact words of Section 5409 of the
old statutes, and reads as follows:

"Whenever any marshal, deputy marshal, ministerial officer, or other
person has in his custody any prisoner by virtue of process issued
under the laws of the United States by any court, judge, or commission-
er, and such marshal, deputy marshal, ministerial officer, or other per-
son voluntarily suffers such prisoner to escape, he shall be fined not
more than two thousand dollars, or imprisoned not more than two
years, or both."

This statute, of course, applies to a State Deputy Sher-
iff, or Jailer, who has control, under legal authority and
process, of a Federal prisoner. By section 139, the above
statute applies not only to domestic prisoners, bul any
prisoner in custody, charged with an offense against a
foreign government with which the United States has a
treaty of extradition, and also to prisoners held in cus-

.304 Federal Ceiminal Law Peocedure.

tody for removal to the Philippine Islands. It is prac-
tically the same as old Statute 5410.

§ 115a. Applies to State Jailor.— Since the United
States has a right to put prisoners in state jails, a state
jailer who allows a prisoner to go, is liable in contempt,
as well as to the penalties of the section under discussion.
Ex parte Shores, 195 Federal, 627. A conspiracy to al-
low a prisoner to escape is reached by the statute. Ex
parte Lyman, 202 Federal, 303.

Sec. 115b. Allowing a Prisoner to Escape.

Is a contempt though purpose seems good, O'Rourke
251 F. 768; there is a difference between assisting to es-
cape arid what is not an assistance and also harboring,
Orth vs. U. S., 252 F. 566.

§ 116. Rescuing, Etc., Prisoner; Concealing, Etc.,
Prisoner for Whom Warrant Has Issued. — Section 141
of the new Code, in the following words:

"Whoever shall rescue or attempt to rescue from the custody of
any officer or person lawfully assisting him, any person arrested upon
a warrant or other process issued under the provisions of any law of
the United States, or shall, directly or indirectly, aid, abet, or assist
any person so arrested to escape from the custody of such officer or
other person, or shall harbor or conceal any person for whose arrest
a warrant or process has been so issued, so as to prevent his discovery
and arrest, after notice or knowledge of the fact that a warrant or
process has been issued for the apprehension of such person, shall
be fined not more than one thousand dollars, or imprisoned not more
than six months, or both,"

is a substitute for old Sections 5401 and 5516. The new
statute, it will be noted, creates several offenses: that of
rescuing or attempting to rescue; that of directly or in-
directly aiding, abetting, or assisting any person to es-
cape; that of harboring or concealing any person for
whose arrest a warrant has been issued. A successful
prosecution could not be had under either of the provi-
sions of this statute, unless the person attempted to be
rescued was in the possession of an officer lawfully, and
it is thought that the indictment must contain an allega-
tion of knowledge. The latter section of the statute,
which relates to concealing, requires that before one can

Offenses Against Public Justice. 30.")

offend he must have knowledge that process has been
issued for the prisoner.

§ 117. Rescue at Execution; Rescue of Prisoner, and
Rescue of Body of Executed Offender.— The above three
offenses are covered by Sections 142, 14:;, and 144 of the
new Code, and were originally old Sections 5400, 5401,
and 5402 of the 1878 Statutes. These new statutes, in
their order, read as follows:

"Sec. 142. Whoever, by force, shall set at liberty or rescue any per-
son found guilty in any court of the United States of any capital
crime, while going to execution or during execution, shall be fined
not more than twenty-five thousand dollars and imprisoned not more
than one year."

"Sec. 143. Whoever, by force, shall set at liberty or rescue any
person who, before conviction, stands committed for any capital crime;
or whoever, by force, shall set at liberty or rescue any person com-
mitted for or convicted of any offense other than capital, shall be
fined not more than five hundred dollars and imprisoned not more
than one year."

"Sec. 144. Whoever, by force, shall rescue or attempt to rescue
from the custody of any marshal or his officers, the dead body of an
executed offended, while it is being conveyed to a place of dissection
as provided by section three hundred and thirty-one hereof, or by
force shall rescue or attempt to rescue such body from the place where
it has been deposited for dissection in pursuance of that section, shall
be fined not more than one hundred dollars, or imprisoned not more
than one year, or both."

§ 118. Extortion by Internal Revenue Informers. —
Section 145 of the new Code is a substantial re-enactment
of old Section 5484, and reads as follows:

"Secc. 145. Whoever shall, under a threat of informing, or as a
consideration for not informing, against any violation of any law
of the United States, demand or receive any money or other valuable
thing, shall be fined not more than two thousand dollars, or imprison-
ed not more than one year, or both."

§ 119. Misprision of Felony. — Section 146 of the new
Code re-enacts old Section 5390, in the following words:

"Sec. 146. Whoever, having knowledge of the actual commission
of the crime of murder or other felony cognizable by the courts of tfie
United States, conceals and does not as soon as may lie disclosed and
make known the same to some one of the judges or other persons
Tn^clviror'military authority under the United States, shall be fined

306 Federal Criminal Law Procedure.

not more than five hundred dollars, or imprisoned not more than three
years, or both."

This section is a companion to Section 145, above quot-
ed, and the two together are thought to guarantee pub-
licity for violators, and immunity of such violators from
those who would prey upon them. Prosecutions under
either of these are not disclosed by prision to be criminal
neglect, either to prevent the commission of crime, or to
bring to justice the offender after its commission. Bishop
in his new Criminal Law, defines Misprision of misde-
meanor as unknown to the language of the law, but mis-
prision of treason was held to be a Common Law treason.
We will later see that by Federal statute, misprision of
treason is denounced in old Section 5333 and new Section
3.

§ 120. Bribery.— In four sections, the new code covers
the offenses denounced by Sections 5449 and 5499 of the
old Statutes, and then creates new offenses.

Sec. 120a. Bribery Continued.

Giving different titles to officers in different counts is
permissible, Sneierson vs. U. S., 264 F. 268.

Inspectors performing "official functions" are "gov-
ernment official," Sears vs. U. S., 264 F. 257.

A porter at a railway is an "official" and is protected
by the statute from bribe when the railroad is under gov-
ernment control, Krichman vs. U. S., 263 F. 538.

"Approach" to a juror is an attempt to bribe — pro-
vided there is knowledge, U. S. vs. Eussell, 41 Sup. Ct.
Rep. 260.

§ 121. Bribery of a Judge or Judicial Officer. — Sec-
tion 131 of the new code amplifies and enlarges old Sec-
tion 5449, and reads as follows:

"Whoever, directly or indirectly, shall give or offer, or cause to be
given or offered, any money, property, or value of any kind, or any
promise of agreement therefor, or any other bribe, to any judge
judicial officer, or other person authorized by any law of the United
States to hear or determine any question, matter, cause, proceeding,
or controversy, with intent to influence his action, vote, opinion, or
decision thereon, or because of any such action, vote, opinion, or de-
cision, shall be fined not more than twenty thousand dollars, or im-
prisoned not more than fifteen years, or both; and shall forever be

Offenses Against Public Justice. 307

disqualified to hold any office of honor, trust, or profit under the
United States."

§ 122. Judge or Judicial Officer Accepting Bribe, Etc.
— Section 132 of the new Code practically re enacts old

Section 5499, and reads as follows:

"Sec. 132. Whoever, being a judge of the United States, shall in any
wise accept or receive any sum of money, or other bribe, present,
or reward, or any promise, contract, obligation, gift, or other security
for the payment of money, or for the delivery or conveyance of any-
thing of value, with the intent to be influenced thereby in any opinion,
judgment, or decree, in any suit, controversy, matter, or cause de-
pending before him, or because of any such opinion, ruling, decision,
judgment, or decree, shall be fined not more than twenty thousand
dollars, or imprisoned not more than fifteen years, or both; and shall
be forever disqualified to hold any office of honor, trust, or profit under
the United States."

This section relates only to the acceptance of a bribe
by a judge, but the following section covers practically
every person authorized by any law of the United States
to hear or determine any question. See also Sections 160
and 185.

§ 123. Juror, Referee, Master, U. S. Commissioner, or
Judicial Officer, Etc., Accepting Bribe. — Section 133 of
the new Code, in the following words:

"Sec. 133. Whoever, being a juror, referee, arbitrator, appraiser,
assessor, auditor, master, receiver, United States Commissioner, or
other person authorized by any law of the United States to hear or
determine any question, matter, cause, controversy, or proceeding,
shall ask, receive, or agree to receive, any money, property, or value
of any kind or any promise or agreement therefor, upon any agree-
ment or understanding that his vote, opinion, action, judgment, or de-
cision, shall be influenced thereby, or because of any such vote, opin-
ion, action, judgment, or decision, shall be fined not more than two
thousand dollars, or imprisoned not more than two years, or both"

creates offenses that were unknown to the old statute

§ 123a. Indictment — Who is Officer? — An indict hum it
must show, as must also the proof, that the act charged
was an official act. U. S. vs. Birdsall, 195 Federal. 980.
The person charged with violating this statute, musl at
the time of the violation have been an officer as within the
statute provided and described. U. S. vs. Birdsall, 206
Federal, 818.

308 Federal Criminal Law Procedure.

An "officer" within the meaning of this section where
applicable, and Section 117 of the Code, means one who
is either appointed by the President by and with the ad-
vice and consent of the Senate, or by the president alone,
the Courts of law, or the heads of some executive depart-
ment, and a special officer appointed by the Commissioner
of Indian Affairs for the suppression of the liquor traffic
among the Indians is not an officer of the United States.
U. S. vs. Van Wert, 195 Federal, 974.

Sec. 123b. Who is an Officer.

See Burnap vs. U. S., 40 Sup. Ct. Eep. 374; U. S. Sup.
Ct. Apr. 1921.

A person not appointed in the manner declared under
constitution article 2, section 2, is not an "official of the
United States" but only an agent or employee of the
government; but Income Tax Inspectors appointed by
the Commissioner of Internal Revenue with the approval
of the Secretary of the Treasury, were officials of the
United States within Criminal Code Section 117, relat-
ing to bribery and constitution, article 2, section 2, Mc-
Grath vs. U. S., 275 F. 295.

It is not necessary that one should be an official of
the United States in order to act for, or, on behalf of
the United States or in any official capacity within the
meaning of section 117 of the Criminal Code, relating to
bribery, McGrath vs. U. S., 275 F. 295.

§ 124. Witness Accepting Bribe. — Section 134 of the
new Code, which reads as follows:

"Sec. 134. Whoever, being, or about to be, a witness upon a trial,
hearing, or other proceeding, before any court, or any officer author-
ized by the laws of the United States to hear evidence or take testi-
mony, shall receive, or agree or offer to receive, a bribe, upon any
agreement or understanding that his testimony shall be influenced
thereby, or that he will absent himself from the trial, hearing, or
other proceeding, or because of such testimony, or such absence, shall
be fined not more than two thousand dollars, or imprisoned not more
than two years, or both."

is likewise an entirely new statute, without any parallel
in the Statutes of 1878.

Offensks Against Public Justice. 309

§ 125. Members of Congress Accepting Bribes. Etc.
— In the next Chapter, under the head of Offenses Relat-
ing to Official Duties, will be found a discussion and ci-
tation of the statutes of the new Code, that inhibit mem-
bers of Congress and other United States officers from
accepting bribes, such statutes and treatment, however,
being a different Chapter, for the reason that they do not
relate directly to offenses against public justice.

CHAPTER VII.

OFFENSES RELATING TO OFFICIAL DUTIES.

§ 126. Extortion, Generally; Definition, Etc.

127. Extortion as a Federal Offense: 5481—85.

128. Receipting for Larger Sums Than are Paid: 5483 — 86.

129. Species of Embezzlement: 5488, 5489, 5490, 5491, 5492, 5493,

5494, 5495, 5496, and 5497—87, 88, 89, 90, 91, 92, 93, 94, 95,
96, 97, 98, 99, 100, and 101.

130. Disbursing Officers Unlawfully Converting, Etc., Public Money:
New Code, 87.

131. Failure of Treasurer to Safely Keep Public Funds: New Code,

88.

132. Custodians of Public Money Failing to Safely Keep: New
Code, 89.

133. Failure of Officer to Render Accounts, Etc., 90

134. Failure to Deposit, as Required: New Code, 91.

135. Provisions of the Five Preceding Sections, How Applied:
New Code, 92.

136. Record Evidence of Embezzlement: New Code, 93.

137. Prima Facie Evidence: New Code, 94.

138. Evidence of Conversion: New Code, 95.

139. Banker, Etc., Receiving Deposit From Disbursing Officer: New

Code, 96.

140. Embezzlement by Internal Revenue Officers, Etc.: New Code,

97.

141. Officer Contracting Beyond Specific Appropriation: 5503 — 98.

142. Officer of United States Court Failing to Deposit Moneys, Etc.:

5504—99.

143. Receiving Loan or Deposit from Officer of Court: New Code,

100.

144. Failure to Make Returns or Reports: 1780—101.

145. Aiding in Trading in Obscene Literature, Etc.: 1785 — 102.

146. Collecting and Disbursing Officers Forbidden to Trade in Public

Funds: 1788 and 1789—103.

147. Judges, Clerks, Deputies, Marshals, and Attorneys, and Their

Deputies Forbidden to Purchase Witness Fees, Etc.: 29 St.
L., 595—104.

148. Falsely Certifying, Etc., as to Record of Deeds: New Code,

105.

149. Other False Certificates: New Code, 106.

150. Inspector of Steamboats Receiving Illegal Fees: 5482 — 107.

151. Pension Agent Taking Fee, Etc.: 5487 — 108.

152. Officer not to Be Interested in Claims Against United States:

5498—109.

(310)

Offenses Relating To Official Duties. ::i 1

§ 153. Member of Congress, Etc!, Soliciting or Accepting Bribe- L781
and 5500 and 5502—110.

154. Offering, Etc., Member of Congress Bribe: 5450—111.

155. Member of Congress Taking Consideration for Procuring Con-

tracts, Offices, Etc.; Offering Member Consideration I
1781—112.

156. Member of Congress Taking Compensation in Matters to Which
the United States Is a Party: 1782 — 113.

157. Member of Congress Not to Be Interested in Contract- 37:;9—

114.

158. Officer Making Contract with Member of Congress: 3742— 115.

159. Contracts to Which the Two Preceding Sections Do
Apply: 3740—116.

160. United States Officer Accepting Bribe: 5501 and 5502—117.

161. Political Contributions Not to Be Solicited by Certain Officers:

New Code, 118.

162. Political Contributions Not to Be Received in Public Offices:
New Code, 119.

163. Immunity from Official Proscription, Etc.: New Code, 120.

164. Giving Money, Etc., to Officials for Political Purposes Pro-
hibited: New Code, 121.

165. Penalty for Violating the Provisions of the Four Preceding
Sections, New Code, 122.

166. All of the Above, Civil Service Act: 1 Sup., 396.

167. Government Officers, Etc., Giving Out Advance Information
Respecting Crop Reports: New Code, 123.

168. Government Officer, Etc., Knowingly Compiling or Issuing
False Statistics Respecting Crops: New Code, 124.

169. Counterfeiting Weather Forecasts Interfering with Signals,

Etc.: 33 St. L., 864.

§ 126. Extortion. — At the Common Law, extortion
was one of the forms of malfeasance in office. Mr. Bish-
op, in his second volume of Criminal Law, at page 225,
says that those who assume official position place them-
selves thereby in circumstances to exert a certain power,
which brings with it corresponding obligations, cogniz-
able by the Criminal Law, and among wrongful official
acts, extortion is particularly reprehensible. Hence it is,
that the law separates it from the rest under a name of
its own. Anderson, in his Dictionary of Law, defines
extortion to be "that abuse of public justice which con-
sists in an officer's unlawfully taking, by color of his
office, from any man, any money or thing of value that
is not due to him, or more than is due, or before it is due,

312 Federal Criminal Law Procedure.

obtaining money or other valuable thing by compulsion
or force of motives applied to will." Wharton, in his
second volume of Criminal Law, paragraph 1574, de-
fines extortion as any oppression by color of right. Bish-
op, in his second volume of Criminal Law, page 225,
defines it as the "corrupt demanding or receiving by a
person in office of a fee for services which should
be rendered gratuitously; or, where compensation is
permissible, of a larger fee than the law justifies, or a
fee not yet due." Corruption, as used in these definitions,
and as applied to the offense of extortion, implies an evil
mind; hence it is not committed when the fee comes
voluntarily, in return for real benefits conferred, by extra
exertions put forth. Second Bishop's Criminal Law page
226; State vs. Stotts, 5 Black., 460; Rex vs. Baines, 6
Mod., 192; Williams vs. S., 2 Sneed, 160; Evans vs.
Trenton, 4 Zab., 764.

§ 127. Federal Offense. — The general statute against
extortion was old Section 5481, which limited extortion
to an "officer" of the United States. Under the authori-
ties of United States vs. Schlierholz, in 137 Federal, 616,
and United States vs. same, in 133 Federal, 333, and the
cases therein cited, it appeared that the various bureaus
of the Executive and Judicial Departments of the Gov-
ernment were administering their respective affairs
through so many agents and clerks and employees, who,
in turn, could and did practice extortion and such sort
of malfeasance, but who are not really "officers" within
the meaning of the Act and the decisions and authorities
above referred to, that Congress passed the Act of June
28, 1906, amending Section 5481, which is now practically
re-enacted in Section 85 of the new Code, which is in the
following words:

"Sec. 85. Every Officer, Clerk, agent, or employee of the United
States, and every person representing himself to be or assuming to
act as such officer, clerk, agent, or employee, who, under color of his
office, clerkship, agency, or employment, or under »?olor of his pre-
tended or assumed office, clerkship, agency, or employment, is guilty of
extortion, and every person who shall attempt any act which if per-
formed would make him guilty of extortion, shall be fined not more
than five hundred dollars, or imprisoned not more than one year, or
both."

Offenses Relating To Official Duti 313

The above statute includes not only every officer of the
United States, but every clerk, agent, employee, and
every other person.

The Supreme Court of the United States, in Williams
vs. United States, 168 U. S., 382, 42 Law Ed., 512, held
that a Chinese Inspector could be guilty of extortion
under the old Section. Other cases of more or less in-
terest are United States vs. Germane, 99 U. S., 508; U.
S. vs. Waitz, 3 Sawy., 28 Federal Cases No. 16,631.

In United States vs. Harned, 43 Federal, 376, a Distrid
Judge, in passing upon a motion to dismiss the prosecu-
tion, held that the word "extortion" implies that the
money paid was extorted on the part of the one who re-
ceived it, and was paid unwillingly by the party paying
the same, and that, therefore, where there was a volun-
tary payment by the witness, knowing at the time thai
it was in excess of the amount that was required to be
paid, and that the same was willingly paid, and noj <!»•
manded, would not support a prosecution, and therefore
thelhotion to dismiss was granted.

Bearing in mind the definitions above quoted, and that
there must be an allegation of corruptness, as above de-
fined, it is not believed that the Harned case states the
rule correctly. The purpose of the statute is to prevent
the receipt by an officer of money in excess of that to
which he is legally entitled, and if he asks for more, with
knowledge and corrupt purpose, the asking, it is thought,
would be the demand comprehended in the definitions,
and the payment thereof would be sufficiently unwilling
under the law to constitute the offense of extortion. Tt
is not here argued that an innocent overcharge or an
overpayment or an overdemand, or a taking of property
or money without the corrupt thought and intent, would
constitute the offense; but when an officer, knowing lie is
entitled to a certain sum, deliberately and corruptly
makes his bill or demand for a larger sum, public policy
would demand that he suffer prosecution under this stat-
ute.

The case of United States vs. Moore, in the 18JFederal,
page 686, is a prosecution under old Section 5485, for de-

314 Federal Criminal Law Procedure.

manding or receiving a greater sum than ten dollars in a
pension case, and its reasoning may be of interest in
studying the instant statute. Under the Revenue Acts,
considered elsewhere, will be found a statute relating to
extortion by revenue officers or agents. Under the old
law, this inhibition was contained in Section 3169. The
case of United States vs. Deaver, 14 Federal, 595, in
passing upon this particular statute, defines extortion to
he the taking or obtaining of anything from another by
a public officer, by means of illegal compulsion or oppres-
sive exaction, and holds that an officer who collects a sum
of money as special taxes from a person as wholesale and
retail dealer in spirits, when no such taxes have been
regularly assessed against him, is guilty of oppression,
although such party has been guilty of selling spirits at
wholesale and retail, without a license, as required by
law, and the fact that he reported such taxes to the Col-
lector of the District as received, and the Collector of
the District, in his settlement with the Revenue Depart-
ment was required to pay the sum collected after the
manner of its collection was fully known to the Depart-
ment, will not render legal the acts of the defendant,
knowingly and wilfully done without authority of law.

That same case, in considering further the offense, de-
cided in substance, that the principle and policy of the
Common Law that a ministerial officer who had arrested
a person, and who takes from such person money, or
other reward under a pretense or promise of getting the
offender discharged, is guilty of a criminal offense, and
under the Section 3169 is extended to officers of the Reve-
nue, and any such officer who accepts or attempts to col-
lect, directly or indirectly, as payment or gift or other-
wise, any sum of money or other thing of value, for a
compromise of a violation of the Revenue laws, is guilty
of a misdemeanor.

§ 128. Receipting for Larger Sums than are Paid. —
Section 5483 of the old Statutes, is changed by Section 86
of the new Code, which reads as follows:

"Sec. 8G. Whoever, being an officer, clerk, agent, employee, or other
person charged with the payment of any appropriation made by

Offenses Relating To Official Duties. 315

Congress, shall pay to any clerk or other employee of the United States
a sum less than that provided by law, and require such employee to
receipt or give a voucher for an amount greater than that actually paid
to and received by him, is guilty of embezzlement, and shall be fined
in double the mount so withheld from any employee of the Government,
and imprisoned not more than two years."

The old statute, was limited by the word "officer,"
just as was old Section 5481. New Section 86, however,
includes not only "officer," but clerk, agent, or employee,
or other person, and in such broadness includes, it is
thought, every paying officer of the Federal Government.
In United States vs. Mayers, 81 Federal, page 159, which
was a decision under the old statute, a postmaster was
held to be an "officer" within the meaning of that stat-
ute, and subject to indictment for having received a
receipt for a larger amount than that which he actually
paid a letter carrier employed in his office. That decision
also contains a copy of the indictment in that case, which
was held to be sufficient.

§ 129. Species of Embezzlement. — Sections 5488,
5489, 5490, 5491, 5492, 5493, 5494, 5495, 5496, and 5497
of the 1878 Revised Statutes, denominate certain acts
with reference to handlers of the public money, such as
disbursing officers and depositories, to be statutory em-
bezzlements, the specific elements of which are respec-
tively therein included. These statutes are practically
re-enacted under the following sections of the new Code.

§ 130. Disbursing Officer Unlawfully Converting, Etc.,
Public Money. — Section 87 of the new Code reads as
follows:

"Sec. 87. Whoever, being a disbursing officer of the United States,
or a person acting as such, shall in any manner convert to his own
use, or loan with or without interest, or deposit in any place or in
any manner, except as authorized by law, any public money intrusted
to him; or shall, for any purpose not prescribed by law, withdraw
from the Treasurer, or any assistant treasurer, or any authorized de-
pository, or transfer, or apply, any portion of the public money in-
trusted to him, shall be deemed guilty of an embezzlement of the money
so converted, loaned, deposited, withdrawn, transferred, or applied, and
shall be fined not more than the amount embezzled, or imprisoned not
more than ten years, or both." »

316 Federal Criminal Law Procedure.

§ 131. Failure of Treasurer to Safely Keep Public
Moneys. — Section 88 of the new Code is in the following
words :

"Sec. 88. If the Treasurer of the United States, or any assistant
treasurer, or any public depository, fails safely to keep all moneys
deposited by any disbursing officer or disbursing agent, as well as all
moneys deposited by any receiver, collector, or other person having
money of the United States, he shall be deemed guilty of embezzlement
of the moneys not so safely kept, and shall be fined in a sum equal to
the amount of money so embezzled and imprisoned not more than ten
years."

§ 132. Custodians of Public Money Failing to Safely
Keep, Etc. — New Section 89 reads as follows:

"Sec. 89. Every officer or other person charged by any Act of
Congress with the safe-keeping of the public moneys, who shall loan,
use, or convert to his own use, or shall deposit in any bank or ex-
change for other funds, except as specially allowed by law, any portion
of the public moneys intrusted to him for safekeeping, shall be guilty
of embezzlement of the money so loaned, used, converted, deposited,
or exchanged, and shall be fined in a sum equal to the amount of
money so embezzled and imprisoned not more than ten years."

§ 133. Failure of Officer to Render Accounts, Etc. —
New Section 90 reads as follows:

"Sec. 90. Every officer or agent of the United States who, having
received public money which he is not authorized to retain as salary,
pay, or emolument, fails to render his accounts for the same as pro-
vided by law shall be deemed guilty of embezzlement, and shall be
fined in a sum equal to the amount of money embezzled and im-
prisoned not more than ten years."

§ 134. Failure to Deposit, as Required. — Section 91
of the new Code reads as follows:

"Sec. 91. Whoever, having money of the United States in his pos-
session or under his control, shall fail to deposit it with the Treas-
urer, or some assistant treasurer, or some public depository of the
United States, when required so to do by the Secretary of the Treas-
ury, or the head of any other proper department, or by the account-
ing officers of the Treasury, shall be deemed guilty of embezzlement
thereof, and shall be fined in a sum equal to the amount of money
embezzled and imprisoned not more than ten years."

Offenses Relating To OiTiciAi. Dm 311

It has been determined, in the case of United States vs.
Dimmick, reported in 112 Federal, 350, and affirmed in
Dimmick vs. United States, 121 Federal, 638, thai to con-
stitute the offense of failing to deposit, as required, in
these sections, it is not necessary that a person having
such moneys in his possession should have been "requir-
ed" to deposit the same by a specific order directed to him
which he failed to obey, but such requirement may be
made by a general rule or regulation of the Treasury
Department, requiring such moneys to be deposited at
stated times, and a wilful failure to comply with such
rule is within the statute.

So also, it seems that a similar general rule made by
the Postmaster General, or any other executive officer,
concerning the deposit of moneys by subordinates in thai
particular branch of the Government, would likewise be
all that was necessary to meet the requirement of tin-
statute under the word "required."

§ 135. Provisions of the Five Preceding- Sections —
How Applied. — New Section 92 reads as follows:

"Sec. 92. The provisions of the five preceding sections shall be
construed to apply to all persons charged with the safe-keeping,
transfer, or disbursement of the public money, whether such per-
sons be indicted as receivers or depositaries of the same."

§ 136. Record Evidence of Embezzlement.— Xew Sec-
tion 93 is in the following words:

"Sec. 93. Upon trial of any indictment against any person for
embezzling public money under any provision of the six preceding
sections, it shall be sufficient evidence, prima facie, for the purpose
of showing a balance against such person, to produce a transcript
from the books and proceedings of the Treasury, as required in civi!
cases, under the provisions for the settlement of accounts between the
United States and receivers of public money."

§ 137. Prima Facie Evidence. — New Section 94 is in
the following words:

"Sec. 94. The refusal of any person, whether in or out of office,
charged with the safe-keeping, transfer, or disbursement of the public
money to pay any draft, order, or warrant drawn upon him by the
proper accounting officer of the Treasury, for any public money in
his hands belonging to the United States, no matter in what capacity

318 Federal Criminal Law Procedure.

the same may have been received, or may be held, or to transfer or
disburse any such money, promptly, upon the legal requirement of
any authorized officer, shall be deemed, upon the trial of any in-
dictment against such person for embezzlement, prima facie evidence
of such embezzlement."

§ 138. Evidence of Conversion. — Section 95 of the
new Code is in the following words:

"If any officer charged with the disbursement of the public moneys
accepts, receives, or transmits to the Treasury Department to be al-
lowed in his favor any receipt or voucher from a creditor of the
United States without having paid to such creditor in such funds as
the officer received for disbursement, or in such funds as he may be
authorized by law to take in exchange, the full amount specified in
such receipt or voucher, every such act is an act of conversion by
Sach officer to his own use of the amount specified in such receipt or
voucher."

The above three sections are general statutes that ap-
ply to and regulate the method of proof, and create new
rules of evidence that apply to Sections 87, 88, 89, 90 and
91, above quoted.

§ 139. Banker, Etc, Receiving Deposit from Disburs-
ing Officer. — Section 96 of the new Code is in the follow-
ing words:

"Sec. 96. Every banker, broker, or other person not an authorized
depositary of public moneys, who shall knowingly receive from any
disbursing, officer, or collector of internal revenue, or other agent of
the United States, any public money on deposit, or by way of loan or
accommodation, with or without interest, or otherwise than in pay-
ment of a debt against the United States, or shall use, transfer, con-
vert, appropriate, or apply any portion of the public money for any
purpose not prescribed by law; and every president, cashier, teller,
director, or other officer of any bank or banking association who
shall violate any provision of this section is guilty of embezzlement
of the public money so deposited, loaned, transferred, used, converted,
appropriated, or applied, and shall be fine.d not more than the amount
embezzled, or imprisoned not more than ten years, or both."

See Cook County National Bank vs. United States, 107
U. S., 445, 27 Law Ed., page 537, which discusses, in a
general way, the priority right of the United States as
against insolvents. See also 15 Opinions of Attorney
General, 288.

Offenses Eelating To Official Duti es. : : 1 !

Under the authority of United States vs. Green el al,
146 Federal, 778, old Section 5497, all the terms of which
are included in the statute under discussion, extended
the crime of embezzlement of public money to every per-
son who used, transferred, converted, appropriated, or
applied any portion of the same for any purpose qo1 pi
scribed by law.

§ 140. Embezzlement by Internal Revenue Officers,
Etc. — Section 97 of the new Code is in the following
words:

"Sec. 97. Any officer connected with, or employed in the Internal
Revenue Service of the United States, and any assistant of such
officer, who shall embezzle or wrongfully convert to his own use any
money or other property of the United States, and any officer of the
United States, or any assistant of such officer, who shall embezzle
or wrongfully convert to his own use any money or property which
may have come into his possession or under his control in the ex-
ecution of such office or employment, or under color or claim of author-
ity as such officer or assistant, whether the same shall be the money or
property of the United States or of some other person or party, shall,
where the offense is not otherwise punishable by some statute of the
United States, be fined not more than the value of the money and
property thus embezzled or converted, or imprisoned not more than
ten years, or both."

This section contains a part of what was originally in
Section 5497 of the old Statutes, as does Section 96, above
considered. By the specific terms of the section, an em-
bezzlement may be properly laid thereunder, even though
the money or property so embezzled is not the money or
property of the United States, provided that such money
or property came into the possession or control of the
United States officer by reason of his office, or under color
thereof, or under claim of authority; as, for instance,
one paying to a Deputy Collector a partial paymenl or
installment payment on a license not yet issued, or giving
to a rural route carrier money to purchase a money-order,
which remains the property of the intended purchaser.
All these, and many other offenses, would be punishable
under this statute.

Sec. 140a. Embezzlement, etc., by United Stales Offi-
cers.

320 Federal Criminal Law Proceduee.

Under the foregoing section a clerk of the United
States District Court, who embezzles may be convicted,
U. S. vs. Davis, U. S. Sup. Ct. Apr. 1917.

A receiver of a National Bank is an officer of the Unit-
ed States, within the meaning of this section and may
be prosecuted for embezzlement of the funds of the bank
he is administering, Wetzel vs. U. S., 274 F. 101.

§ 141. Officer Contracting Beyond Specific Appro-
priation.— Section 98 of the new Code, which practically
re-enacts old Section 5503, and the substance of the
amendment thereto, is in the following words:

"Sec. 98. Whoever, being an officer of the United States, shall
knowingly contract for the erection, repair, or furnishing of any
public building, or for any public improvement, to pay a larger amount
than the specific sum appropriated for such purpose, shall be fined
not more than two thousand dollars and imprisoned not more than
two years. ' '

§ 142. Officer of United States Court Failing to De-
posit Moneys, Etc. — Section 99 of the new Code, which
substantially re-enacts old Section 5504, is in the follow-
ing words:

"Sec. 99. Whoever, being a clerk or other officer of a court of
the United States, shall fail forthwith to deposit any money belong-
ing in the registry of the court, or hereafter paid into court or re-
ceived by the officers thereof, with the Treasurer, assistant treasurer,
or a designated depositary of the United States, in the name and to
the credit of such court, or shall retain or convert to his own use
or to the use of another any such money, is guilty of embezzlement,
and shall be fined not more than the amount embezzled", or im-
prisoned not more than ten years, or both; but nothing herein shall
be held to prevent the delivery of any such money upon security, ac-
cording to agreement of parties, under the direction of the court."

Some civil cases that merely mention old Section 5504
are the following: Henry vs. Sowles, 28 Federal, 481;
United States vs/Bixby, 10 Bis., 238.

§ 143. Receiving Loan or Deposit from Officer of
Court. — Section 100 of the new Code, which takes the
place of the old Statute 5505, reads as follows:

"Sec. 100. Whoever shall knowingly receive from a clerk or
other officer of a court of the United States, as a deposit loan, or

Offenses Relating To Official Di dies. 321

otherwise, any money belonging in the registry of Buch court, is
guilty of embezzlement, and shall be punished as prescribed in the
preceeding section."

§ 144. Failure to Make Returns or Reports.— Section
101 of the new Code which re-enacts old Section L780,

is in the following words:

"Sec. 101. Every Officer who neglects or refuses to make any
return or report which he is required to make at stated times by
any Act of Congress or regulation of the Department of the Treas-
ury, other than his accounts, within the time prescribed by such act
or regulation, shall be fined not more than one thousand dollars."

§ 145. Aiding in Trading in Obscene Literature, Etc.
— Old Section 1785, which is to he regulated by the de-
cisions under the old Section 3893 and its amendments,
which have heretofore been treated under postal crimes
and offenses, is replaced by Section 102 of the new Cod<'.
in the following words:

"Sec. 102. Whoever, being an officer, agent, or employee of the
Government of the United States shall knowingly aid or abet any
person engaged in violating any provision of law prohibiting im-
porting, advertising, dealing in, exhibiting, or sending or receiving
by mail, obscene or indecent publications or representations, or
means for preventing conception or producing abortion, or other
article of indecent or immoral use or tendency, shall be fined not
more than five thousand dollars, or imprisoned not more than ten
years, or both."

§ 146. Collecting and Disbursing Officers Forbidden
to Trade in Public Funds.— Old Sections 1788 and L789
are re-enacted into new Section 103 in the following
words:

"Sec. 103. Whoever, being an officer of the United States con
cerned in the collection or the disbursement of the revenues tbere-
of, shall carry on any trade or business in the funds or debts of the
United States, or of any State, or any public property of either,
shall be fined not more than three thousand dollars, or imprisoned
not more than one year, or both, and be removed from office, and there-
after be incapable of holding any office under the United Stati

§ 147. Judges, Clerks, Deputies, Marshals, and At-
torneys, and their Deputies Forbidden to Purchase Wit-

322 Federal Criminal Law Procedure.

ness Fees, Etc. — The statute contained in the 29 Statute
at Large, 595, is re-enacted into new Section 104, in the
following words:

"Sec. 104. Whoever, being a judge clerk, or deputy clerk of any
court of the United States, or of any Territory thereof, or a United
States district attorney, assistant attorney, marshal, deputy marshal,
commissioner, or other person holding any office, or employment, or
position of trust or profit under the Government of the United States,
shall, either directly or indirectly, purchase at less than the full
face value thereof, any claim against the United States for the fee,
mileage, or expenses of any witness, juror, deputy marshal, or any
other officer of the court whatsoever, shall be fined not more than
one thousand dollars."

§ 148. Falsely Certifying, Etc., as to Record of Deeds.
— Section 105 of the new Code, creates a new offense, in
the following words:

"Sec. 105. Whoever, being an officer or other person authorized
by any law of the United States to record a conveyance of real
property, or any other instrument which by law may be recorded,
shall knowingly certify falsely that such conveyance or instrument
has or has not been recorded, shall be fined not more than one thou-
sand dollars, or imprisoned not more than seven years, or both."

§ 149. Other False Certificates.— Section 106 of the
new Code creates a new offense in the following words:

"Sec. 106. Whoever, being a public officer or other person author-
ized by any law of the United States to make or give a certificate
or other writing, shall knowingly make and deliver as true such
a certificate or writing, containing any statement which he knows
to be false, in a case where the punishment thereof is not elsewhere
expressly provided by law, shall be fined not more than five hundred
dollars, or imprisoned not more than one year, or both."

§ 150. Inspector of Steamboats Receiving Illegal
Fees. — Section 5482 of the old Statutes is re-enacted in
Section 107 of the new Statutes in the following words:

"Every inspector of steamboats who, upon any pretense, receives
any fee or reward for his services, except what is allowed to him
by law, shall forfeit his office, and be fined not more than five hundred
dollars, or imprisoned not more than six months, or both."

§ 151. Pension Agent Taking Fee, Etc. — Section 108,
which displaces old Section 5487, reads as follows:

Offenses Relating To Official Duties.

"Every pension agent, or other person employed or appointed
by him, who takes, receives, or demands any fee or reward from ai
pensioner for any service in connection with the payment of his
pension, shall be fined not more than five hundred dollars."

In the cases of United States vs. Kessel, 62 Federal,
page 57, and United States vs. Van Lemon. '2 Federal,
62, successful prosecutions were laid by the Governmenl
against members of the Board of Examining Snrgeons
for receiving and asking outside compensation and gra
tuity for services rendered and to be rendered, respecting
certain certificates from the board of Surgeons. An in-
dictment in the first case, which charged that the defend-
ant, a member of a Board of Surgeons, did unlawfully
ask "a gratuity, the nature of which is unknown," with
intent to have his official action influenced, was held to
be had, in that it failed to sufficiently inform the defend-
ant of what he was to meet. These two decisions held
that a member of a Board of Examining Surgeons, ap-
pointed by the Commissioner of Pensions, though not an
officer of the United States, was a person acting for, or
in behalf of, the United States, and in an official capacity,
and under authority of an office of the Government, and
distinguished the case of the United States vs. Germaine,
99 U. S., 508.

§ 152. Officer not to Be Interested in Claims Against
United States. — Section 109 of the new Code is substan-
tially in the words of the old Statute 5498, and reads as
follows:

"Sec. 109. Whoever, being an officer of the United States, or a
person holding any place of trust or profit, or discharging any
official function under, or in connection with, any Executive Depart-
ment of the Government of the United States, or under the Senate or
House of Representatives of the United States, shall act as an agent
or attorney for prosecuting any claim against the United Sta1
or in any manner, or by any means, otherwise than in dischai
of his proper official duties, shall aid or assist in the prosecution or
support of any such claim, or receive any gratuity, or any share of
or interest in any claim from any claimant against the United st
with intent to aid or assist, or in consideration of having aided or as-
sisted in the prosecution of such claim, shall be fined not more than
five thousand dollars, or imprisoned not more than one year, or both.'

324 Federal Criminal Law Procedure.

To this statute, as well as most of the others that we are
considering in this Chapter, the thought is applicable
that a political office is merely a trust, which is to be con-
ferred upon whatever conditions the Government chooses
to impose. If the conditions are unacceptable to the
office-holder, he is under no obligation to take the office,
and he has no Constitutional or other right to require
the conditions of trusts he accepts to be subsequently al-
tered or removed. In United States vs. Curtis, 12 Fed-
eral, 824, the Court, in expressing this thought, said:

"No citizen is required to hold a public office, and if he is unwilling
to do so, upon such conditions as are prescribed by that Department
of, the Government which creates the office, fixes its tenure and inci-
dents, it is his duty to resign."

The Curtis case was an indictment, in 1882, against a
Federal employee for soliciting and receiving monev
from other Federal employees, to be used by the Republi-
can State Committee. The indictment was found under
Section 6 of the Act of August 15, 1876, First Supple-
ment, 245, 19 Statute-at-Large, 169. The defendant was
convicted, and thereafter sought, by writ of habeas cor-
pus from the Supreme Court of the United States, his
discharge; but the Supreme Court, through Chief Jus-
tice Waite, in 106 U. S., 371, ex parte Curtis; Lawyers'
Co-Operative Edition, Book 27, page 232, refused to dis-
charge the petitioner, and in effect, therefore, confirmed
the conviction.

§ 153. Member of Congress, Etc., Soliciting or Ac-
cepting Bribe. — Sections 1781, 5500, and 5502 have con-
tributed to new Section 110, which is in the following
words:

"Sec. 110. Whoever, being elected or appointed a Member of or
Delegate to Congress, or a Resident Commissioner, shall, after his
election or appointment, and either before or after he is qualified,
and during his continuance in office, directly or indirectly, ask, accept
receive, or agree to receive, any money, property, or other valuable
consideration, or any promise, contract, undertaking, obligation, gra-
tuity, or security for the payment of money, or for the delivery or

Offenses Relating To Official Duties. 325

conveyance of anything of value to him, or to any person with his
consent, connivance, or concurrence, for his attention to, or services,
or with the intent to have his action, vote, or decision influenced on
any question, matter, cause, or proceeding, which may at any time he
pending in either house of congress or before any committee thereof,
of which by law or under the constitution may be brought before him
in his official capacity, or in his place as such member, delegate, or
resident commissioner, shall be fined not more than three times the
amount asked, accepted, or received, and imprisoned not more than
three years; and shall, moreover, forfeit his office or place, and
thereafter he forever disqualified from holding any office of honor,
trust, or profit, under the Government of the United States."

§ 154. Offering, Etc., Member of Congress Bribe.—
New Section 111 contains the meat of old Section 5450,
and is in the following words:

"Sec. 11. Whoever shall promise, offer, or give, or cause to be
promised, 4 <Tered, or given, any money or other thing of value, or
shall make or tender any contract, undertaking, obligation, gratuity,
or security for the payment of money or for the delivery or convey-
ance of anything of value, to any Member of either House of Congress,
or Delegate to Congress, or Resident Commissioner, after his election
or appointment, and either before or after he has qualified, and during
his continuance in office, or to any person with his consent, connivance,
or concurrence, with intent to influence his action, vote, or decision, ou
any question, matter, cause, or proceeding which may at any time be
pending in either House of Congress, or before any committee there-
of, or which by law or under the Constitution may be brought before
him in his official capacity or in his place as such member, delegate,
or resident commissioner, shall be fined not more than three times the
amount of money or value of the thing so promised, offered, given,
made, or tendered, and imprisoned not more than three years."

§ 155. Member of Congress Taking Consideration for
Procuring Contracts, Offices, Etc.; Offering Member Con-
sideration, Etc. — New Section 110, quoted above, togeth-
er with new Section 112, which is in the following word-:

"Sec. 112. Whoever, being elected or appointed a Member of or
Delegate to Congress, or a Resident Commissioner, shall after his
election or appointment, and either before or after he has qualified
and'during his continuance in office, or being an officer or agent of
the United States, shall directly or indirectly take, receive, or agree
to receive, from any person, any money, property, or other valuable
consideration whatever, for procuring or aiding to procure any con-
tract, appointive office, or place to any person whomsoever; or who-

326 Federal Criminal Law Procedure.

ever, directly or indirectly shall offer, or agree to give, or shall give,
or bestow, any money, property, or other valuable consideration
whatever, for the procuring, or aiding to procure, any such contract, ap-
pointive office, or place, shall be fined not more than ten thousand
dollars and imprisoned not more than two years; and shall more-
over, be disqualified from holding any office of honor, profit, or trust
under the Government of the United States. Any such contract or
agreement may, at the option of the President, be declared void,"

enlarge upon the provisions of old Statute 1781.

Upon the question of policy, the Curtis case, cited supra
may be considered as an authority under this section. In
United States vs. Driggs, 125 Federal, 520, Congressman
Driggs was indicted for assisting a contractor by the
name of Miller in making a contract with the Govern-
ment for certain automatic cash registers, for a consid-
eration of twelve thousand dollars. In the case of United
States vs. Dietrich, 126 Federal, 676, which grew out of
an indictment against Senator Dietrich, of Nebraska, for
an alleged agreement to procure, or aid in the securing of,
a post-office, for one Fisher, the Court held, of course,
that it was necessary to allege in the indictment the elec-
tion, qualification, and oath of Dietrich as such Senator,
and for the facts to show that the offense was committed
while he was such officer; and there being an interim
before his actual qualification to such office, during which
time he made the contract for the disposition of the post-
office, if he made it at all, the Court determined that no
offense was committed. In that opinion, the Court said:

"The defendant was not admitted to a seat in the Senate and did
not enter upon the discharge of the duties of that office, until December
2, 1901, not until that date did the Senate consider or act upon his
election, credentials, and qualifications. Until then, it was not known,
and could not have been, in the absence of an earlier session of the
Senate, whether his election, credentials, and qualifications, would be
deemed by the Senate, the sole and exclusive judge, to be such as
to entitle him to membership in that body. Immediately following
the favorable action of the Senate upon his election, credentials, and
qualifications, the defendant took the oath of office as a Senator,
which was an assumption of the duties of that office; but until then
he had not accepted the office, and was not obligated to its acceptance.
Until then, it was optional with him to accept or decline; and if,
on December 2, 1901, he had exercised that office by declining instead

Offenses Relating To Official Duties. 327

of accepting, he would not have been a Senator at all, under the
election of March 28, 1901."

It is quite true that the Common Law made it an of-
fense for one not to accept an office to which he was
elected, but no such jurisdiction is recognized by the
Federal Courts. If it he true, therefore, that Dietrich
agreed to sell the office between the date of his election,
in March, and the date of his qualification, in December,
he committed no offense under the Statute under discus-
sion. The case of United States vs. Burton, reported in
131 Federal, 552, grew out of an alleged practice by Sena-
tor Burton before the Post-office Department of the Unit-
ed States, with reference to a certain fraud order that
the Postmaster General had issued. The conviction that
resulted upon that case was finally reversed, Burton vs.
United States, 196 U. S., 283, but upon a retrial another
conviction was affirmed, United States vs. Burton, 202 U.
S., 344; 50 Law Ed., 1057. The Court held, in the last
writ of error, that a fraud order inquiry pending before
the Post-office Department is a proceeding in which the
United States, although having no direct money or pe-
cuniary interest in the result, is directlv or indirectlv in-
terested within the meaning of Section 1782, making it a
misdemeanor for a United States Senator to receive or
agree to receive compensation for services rendered be-
fore any Department, in relation to any proceeding in
which the United States is so interested.

The Court also in that case said that the agreement to
receive, and the receipt of, the forbidden compensation
are made two separate and distinct offenses under Sec-
tion 1782.

In the case of McGregor vs. United States, 134 U. S.,
188, the Circuit Court of Appeals for the Fourth Circuit
affirmed a conviction of the defendants, who were clerks
in the Post-office Department, under Section 1781 and
1782, for conspiring with a dealer in leather goods for
the sale of mail pouches to the Federal Government.

This case discusses the introduction of evidence before
a grand jury, the joinder of various counts, and the suffi-
ciency in general of a bill alleging the elements of such

326 Federal Criminal Law Procedure.

enlarge upon the provisions of old Statute 1781.

Offenses Relating To Official Duties. 327

of accepting, he would not have been a Senator at all, under the
election of March 28, 1901."

It is quite true that the Common Law made it an of-
fense for one not to accept an office to which lie was
elected, but no such jurisdiction is recognized by the
Federal Courts. If it be true, therefore, that Dietrich
agreed to sell the office between the date of his election,
in March, and the date of his qualification, in December,
he committed no offense under the Statute under discus-
sion. The case of United States vs. Burton, reported in
131 Federal, 552, grew out of an alleged practice by Sena-
tor Burton before the Post-office Department of the Unit-
ed States, with reference to a certain fraud order that
the Postmaster General had issued. The conviction that
resulted upon that case was finally reversed, Burton vs.
United States, 196 U. S., 283, but upon a retrial another
conviction was affirmed, United States vs. Burton, 202 IT.
S., 344; 50 Law Ed., 1057. The Court held, in the last
writ of error, that a fraud order inquiry pending before
the Post-office Department is a proceeding in which the
United States, although having no direct money or pe-
cuniary interest in the result, is directly or indirectly in-
terested within the meaning of Section 1782, making it a
misdemeanor for a United States Senator to receive or
agree to receive compensation for services rendered be-
fore any Department, in relation to any proceeding in
which the United States is so interested.

The Court also in that case said that the agreement to
receive, and the receipt of, the forbidden compensation
are made two separate and distinct offenses under Sec-
tion 1782.

This case discusses the introduction of evidence before
a grand jury, the joinder of various counts, and the suffi-
ciency in general of a bill alleging the elements of such

^„

328 Federal Criminal Law Procedure.

an offense. The Court refused to revise the judgment of
the grand jury stating that,

"It is doubtless true that grand juries frequently consider testimony
that would be held inadmissible by a trial court, for such juries are
not usually well informed concerning the rules of evidence, nor the
rights and privileges of the parties whose alleged offenses they are

examining into In cases like this, where the record discloses

that many witnesses were examined, and much documentary evidence
considered by the grand jury, it is quite apparent that it would be
subversive of our criminal procedure and destructive of the rules formu-
lated to promote the due administration of justice, to establish a
practice under which indictments might be quashed, because of a con-
sideration by the grand jury of the improper testimony given by one
witness among many, or the reading by such jury of a statement
irregularly submitted to it, which may likely have had but little in-
fluence in the conclusion reached by the jury."

In other words, the Court said, later on, that even
though evidence might have been improperly considered
by the grand jury, that the Court would not say that the
jury did not, nevertheless, have before it sufficient of
legal and pertinent testimony to warrant the returning
of the indictment, and cites cases in support.

In United States vs. Booth, 148 Federal, 112, will be
found a complete copy of an indictment under Section
1782, which was approved by the Court. In that case, a
Receiver of the Land Department of the United States
was held to commit an offense against the statute under
discussion, when he gave advance information respecting
the lands, for which advance information he received
compensation, and the Court held that the United States
has a direct interest, within the meaning of the section,
in all public lands, and in the right of entry or purchase
thereof, through proceedings to be had at any of its land
offices. Under the reasoning of this last case, any com-
pensation whatever is construed to be a violation of the
statute. It will be remembered, however, that the dis-
tinction drawn in the Dietrich case, with reference to
election and qualification, can never arise under new Sec-
tions 112 and 113, for the reason that those sections ex-
pressly provide either before or after qualification.

Offenses Relating To Official Din 329

§ 156. Member of Congress Taking Compensation in
Matters to Which the United States is a Party.— New

Section 113, which is closely akin to 112, just discussed,
and which re-enacts the salient features of old Section
1782, and under which the citations and suggestions made
with reference to 112 are also applicable, is in the follow-
ing words:

"Sec. 113. Whoever, being elected or appointed a Senator, Mem-
ber of or Delegate to Congress, or a Resident Commissioner, shal,
after his election or appointment and either before or after he has
qualified, and during his continuance in office, or being the head of
a department, or other officer or clerk in the employ of the United
States, shall, directly or indirectly, receive, or agree to receive, any
compensation whatever, for any services rendered or to be rendered
to any person, either by himself or another, in relation to any pro-
ceeding, contract, claim, controversy, charge, accusation, arrest, or
other matter or thing in which the United States is a party or direct-
ly or indirectly interested, before any department, court-martial,
bureau, officer, or any civil, military, or naval commission whatever,
shall be fined not more than ten thousand dollars and imprisoned not
more than two years, and shall, moreover, thereafter be incapable of
holding any office of honor, trust, or profit under the Government of
the United States."

§ 157. Member of Congress Not to be Interested in
Contract. — Sections 109, 110, 111, 112, and 113, provide,
in various ways, for the conservation of official fidelity.
To these, has been added new Section 114, which takes
the place of old Section 3739, and which is in the follow-
ing- words:

"Sec. 114. Whoever, being elected or appointed a Member of or
Delegate to Congress, or a resident Commissioner, shall, after his
election or appointment and either before or after he is qualified.
and during his continuance in office, directly or indirectly, himself,
or by any other person in trust for him, or for his use or benefit, or en
his^account, undertake, execute, hold, or enjoy, in whole or in part,
any contract or agreement made or entered into in behalf of the
United States by any officer or person authorized to make contracts
on its behalf, shall be fined not more than three thousand dollars. All
contracts or agreements made in violation of this section shall be void;
and whenever any sum of money is advanced by the United States.
in consideration of any such contract or agreement is shall forthwith
be repaid; and in case of failure or refusal to pay the same when
demanded by the proper officer of the Department under whose author-

330 Federal Criminal Law Procedure.

ity such contract or agreement shall have been made or entered into,
suit shall at once be brought against the person so failing or refusing
and his sureties, for the recovery of the money so advanced."

The case of the United States vs. Dietrich, 126 Fed-
eral, 671, cited supra under 112 and 113, may be read
with interest by those seeking light upon the instant stat-
ute; also Second Attorney's General Opinion, 697, 15
Attorney's General Opinion, 280. This statute, it will be
noticed, is directed against Members of Congress being
interested in contracts with the Government, whatever
such interest may be, whether direct or indirect, and
whether before qualification or after qualification, which
meets, as heretofore observed, the objections that were
raised by the Court in the Dietrich case, to a successful
prosecution.

§ 158. Officer Making Contract with Member of Con-
gress.— Old Section 3742 becomes new Section 115, which
is in the following words:

"Sec. 115. Whoever, being an officer, of the United States, shall on be-
half of the United States, directly or indirectly make or enter into
any contract, bargain, or agreement, in writing or otherwise, with
any Member of or Delegate to Congress, or any Resident Commis-
sioner, after his election or appointment as such member, delegate,
or resident commissioner, and either before or after he has qualified,
and during his continuance in office, shall be fined not more than
three thousand dollars."

This section, as the other sections of the new Code bear-
ing upon this phase of official wrong, is so worded as to
punish the offender, whether before or after his quali-
fication to office.

§ 159. Contracts to Which the Two Preceding Sec-
tions Do Not Apply. — By Section 116 of the new Code,
which was Section 3740 of the old Code, the two preced-
ing sections — that is, Sections 114 and 115 — do not apply
to certain contracts, as is shown by the following words:

"Sec. llfi. Nothing contained in the two preceding sections shall
extend, or be construed to extend, to any contract of agreement made
or entered into, or accepted, by any incorporated company, where
such contract or agreement is made for the general benefit of such
incorporation or company; nor to the purchase or sale of bills of

Offenses Relating To Official Duties. 331

exchange or other property by any Member of or Delegate to Congress,
or Resident Commissioner, where the same are ready for delivery.
and payment therefor is made at the time of making or entering
into the contract or agreement."

§ 160. United States Officer Accepting Bribe.— In the
discussion of Section 110, supra, cases were cited and
suggestions were made concerning old Sections 5501 and
5502. These two sections are broadly re-enacted in new
Section 117, which is in the following words:

"Whoever, being an officer of the United States, or a person acting
for or on behalf of the United States, in any official capacity, under
or by virtue of the authority of any department or office of the Gov-
ernment thereof; or whoever, being an officer or person acting for
or on behalf of either House of Congress, or of any committee of
either House, or of both Houses, shall ask, accept, or receive any secu-
rity for the payment of money, or for the delivery or conveyance of
anything of value with intent to have his decision or action on any
question, matter, cause, or proceeding which may at any time be
pending, or which may by law be brought before him in his offic.al
capacity, or in his place of trust or profit, influenced thereby, shall
be fined not more than three times the amount of money or value
of the thing so asked, accepted, or received, and imprisoned not more
than three years, and shall, moreover, forfeit his office or place and
thereafter be forever disqualified from holding any office of honor,
trust, or profit under the Government of the United States."

The cases of the United States vs. Kissel, 62 Federal,
57, and United States vs. Van Lauven, 62 Federal, 62,
heretofore discussed under Section 110, are authorities
under this section. The statute is so broad that it covers"
not only one who is an officer of the United States, but
any person acting for or on behalf of the United States
in any official capacity.

The case of United States vs. Boyer, 85 Federal, 425,
correctly, it seems, announces a doctrine that would be
equally applicable to the new Section: that is, that
though one be a United States officer, if he be attempting
to perform a function which under the laws and limi-
tations of the United States, he is not entitled to perform,
even though he may think that he has such duty, and
even though the person offer him a gratuity not to per-
form such duty may think that he has a right to per-

332 Federal Criminal Law Procedure.

form it, yet he would not be guilty under the section, for
the reason that he was acting outside of his authority.
In the Boyer case, an Inspector for the Agriculture De-
partment of the United States was indicted for receiving
money from the packing house to which he was assigned,
as an Inspector of the Bureau of Animal Industry. The
point was raised that Congress did not have the power,
under the Constitution, to send an inspector into a pack-
ing house located within a State, and impose upon him
the duties set out in the indictment. The Court held that
the facts set out in the indictment did not constitute an
offense against the United States, for the reason that it
was intended to induce him not to do a thing which no
valid law of Congress imposed upon him to do.

In the case of United States vs. Ingham, 97 Federal,
935, which was a prosecution under Section 5451 of the
old Statutes, which is closely akin to the one under dis-
cussion, the Court held that the statute applied to any
person acting for or on behalf of the United States,
whether such person was an officer or not; and, therefore,
applied the section to a Secret Service operative employ-
ed by the Secretary of the Treasury, holding that the
bribery or attempted bribery of such a person to collude
in or allow a fraud on the United States, was an offense
within the terms of the statute.

In King vs. United States, 112 Federal, is a state of
facts which showed an offense under Section 5501 of the
old Statutes, in the receiving of a large sum of money by
: a Captain in the United States Quartermaster's Depart-
ment, for the acceptance and rejection of material to be
used in the construction of a public building, such pay-
ment having been made him by the Contractor. The
Circuit Court of Appeals for the Fifth Circuit sustains a
conviction under such facts, but reverses the case upon
another question. In the opinion is a copy of the indict-
ment.

An indictment under these sections should charge that
the bribe was given with the intent to influence the of-
ficial action of the person. An indictment should also
clearly specify the official capacity of the person who has
accepted the bribe, or to whom an attempt has been made

Offenses Relating To Official Duties. 333

to give a bribe. It was said, however, in the King case,
that after the verdict, a general allegation which seems
to show capacity of supervision over a particular Gov-
ernmental function would be sufficient.

In the case of Sharp against the United Stales, 138
Federal, 878, the Circuit Court of Appeals for the Eighth
Circuit, while reversing the case upon another question,
held that an indictment against a United States Indian
Agent for bribery, which alleged that he, having charge
of the execution and completion of certain leases for
certain contracts of land in a specified Indian reservation,
commonly known as the Ponca Pasture, etc., feloniously
and corruptly accepted and received the sum of fifteen
hundred dollars from one A., for the purpose of influenc-
ing his action on the completion of such leases, was suffi-
cient to charge the offense under 5501. The case also
directly holds that an Indian Agent, in the execution
and completion of leases of Government lands, was
charged with such an official trust that his receiving a
bribe to influence his official action rendered him subject^
to punishment under the above section.

The case of United States vs. Haas, 163 Federal, 908,
was an indictment under the old Conspiracy Statute, for
a violation of the old bribery section, which was 5451,
and is interesting in this connection, because in that
case the Court held that a person employed by the United
States as an Assistant Statistician in the Department of
Agriculture, in the performance of the duties with which
he is charged by the rules of the Department, ads for the
United States in an official function within the meaning
of Revised Statutes No. 5451, making it a criminal of-
fense to bribe any such person, to induce him to do or to
omit to do any act in violation of his lawful duty.

Sec. 160a. United States Officer.

A baggage porter, while the railways are under gov-
ernment supervision is an officer within the meaning of
the foregoing section, U. S. vs. Krichman, 256 F. 974.

An officer must not induce the crime, U. S. vs. Lynch,
256 F. 983. See Krichman vs. U. S. 41 Sup. Ct. Rep. 514,
which reverses.

334 Federal Criminal Law Proceduee.

§ 161. Political Contributions Not to be Solicited by
Certain Officers. — Section 118 of the new Code reads as
follows:

"Sec. 118. No Senator or Representative in, or Delegate or Resi-
dent Commissioner to Congress, or Senator, Representative, Delegate,
or Resident Commissioner-elect, or officer or employee of either House
of Congress, and no executive, judicial, military or naval officer of the
United States, and no clerk or employee of any Department, branch,
or bureau of the executive, judicial, or military or naval service of
Ihe United States, shall directly or indirectly, solicit or receive, or.
be in any manner concerned in soliciting or receiving, any assessment,
subscription, or contribution for any political purpose whatever, from
any officer, clerk, or employee of the United States, or any Depart-
ment, branch, or bureau thereof, or from any person receiving any
salary or compensation from moneys derived from the Treasury of
the United States."

§ 162. Political Contributions Not to be Received in
Public Offices. — Section 119 of the new Code reads as
follows:

"Sec. 119. No person shall, in any room or building occupied in
the discharge of official duties by any officer or employee of the
United States mentioned in the preceding section, or in any navy-
yard, fort, or arsenal, solicit in any manner whatever or receive any
contribution of money or other thing of value for any political pur-
pose whatever."

§ 163. Immunity from Official Proscription, Etc.—

Section 120 is in the following words:

"Sec. 120. No officer or employee of the United States mentioned
in section one hundred and eighteen, shall discharge, or promote, or
degrade, or in any manner change the official rank or compensation
of any other officer or employee, or promise or threaten so to do, for
giving or withholding or neglecting to make any contribution of
money or other valuable thing for any political purpose."

§ 164. Giving Money, Etc., to Officials for Political
Purposes Prohibited. — Section 121 of the new Code is as
follows:

"Sec. 121. No officer, clerk, or other person in the service of the
United States shall, directly or indirectly, give or hand over to any
other officer, clerk, or person in the service of the United States, or
to any Senator or Member of or Delegate to Congress, or Resident
Commissioner, any money or other valuable thing on account of or

Offenses Relating To Official. Duties. .'I85

to be applied to the promotion of any political object whatever.''

§ 165. Penalty for Violating the Provisions of the
Four Preceding Sections. — Section 122 is in the following
words:

"Sec. 122. Whoever shall violate any provision of the four pre-
ceding sections shall be fined not more than five thousand dollars, or
imprisoned not more than three years, or both."

The above sections are taken from the First Volume of
the Supplements, 396, and were what was originally
known as the Civil Service Act. The case of the United
States vs. Thayer, in 154 Federal, 508, originated on that
portion of the original law which is now Section 119,
above quoted, and was a prosecution based upon the
sending of letters by mail to the Federal employes, so-
liciting political contributions for use by the Repub-
lican State Committee, such letters to be delivered to
such Federal employee in the Federal building at Dallas,
Texas. The lower Court held that the sending of such
a letter addressed to an Internal Revenue employee at
his office in the Federal Building, by a defendant who
was neither an officer nor an employee of the United
States, did not constitute an offense within the Act. The
Government sued out a writ of error under the new stat-
ute, authorizing the United States to go direct to the
Supreme Court of the United States under certain condi-
tions, and the Supreme Court of the United States re-
versed the judgment of the lower Court, and held that,

"solicitation by letter, intended to be received and read by an
Internal Revenue employee in the Post-office Building, and which was
so received and read in such building, is embraced by the provision
of the Civil Service Act now under discussion, that no person shall
in any room or building occupied in the discharge of official duties
by any officer or employee of the United States mentioned in such
Act, solicit 'in any manner whatever' or receive any contribution of
money or any other thing of value, for any political purpose what-
ever."

In the course of opinion, the Court says:

"The solicitation was made at some time, somewhere, The time
determines the place; it was not completed when the letter was '
dropped into the post. If the letter had miscarried or been burned
the defendant would not have accomplished the solicitation. The court
below was misled by cases in which, upon an indictment for obtaining

336 Fedeeal Ceiminal Law Peoceduee.

money by false pretenses, the crime was held to have been committed
at the place where drafts were put into the post by a defrauding
person, but these stand on the analogy of the acceptance by mail of

an officer, and throw no light Therefore, we repeat, until after

the letter had entered the building, the offense was not completed,
but when it had been read. The case was not affected by the nature
of the intended means by which it was put into the hands of the
person addressed. Neither can the case be affected by speculation as
to what the position would have been if the receiver had put the letter
in his pocket and had read it later, at home. Offenses usually de-
pend for their completion upon events that are not wholly within
the offender's control, and that may turn out in different ways."
U. S. vc. Thayer, 209 U. S. p. 39

In the case of United States vs. Smith, 163 Federal,
926, District Judge Jones held that the personal delivery
to a postmaster, in his office, of a sealed letter containing
a request for a contribution for a political campaign con-
stitutes a criminal offense under the Act under discus-
sion.

§ 167. Government Officer, Etc., Giving Out Advance
Information Respecting Crop Reports.— The new Code,
at Section 123, contains an entirely new statute, which is
the fruit of stock exchanges and the alternate rage of
the American bull and bear, and is in the following-
words :

"Whoever, being an officer or employee of the United States or a
person acting for or on behalf of the United States in any capacity
under or by virtue of the authority of any Department or office
thereof, and while holding such office, employment, or position, shall,
by virtue of the office, employment or position held by him, become
possessed of any information which might exert an influence upon
or affect the market value of any product of the soil grown within
the United States, which information is by law or by the rules o£
the Department or office required to be withheld from publication
until a fixed time, and shall wilfully impart, directly or indirectly,
such information, or any part thereof, to any person not entitled
under the law or the rules of the Department or office to receive the
same; or shall, before such information is made public through
regular official channels, directly or indirectly speculate in any such
product respecting which he has thus become possessed of such
information, by buying or selling the same in any quantity, shall
be fined not more than ten thousand dollars, or imprisoned not more
than ten years, or both: Provided, That no person shall be deemed
guilty of a violation of any such rule, unless prior to such alleged
violation he shall have had actual knowledge thereof."

Offenses Relating To Official Duties. 337

§ 168. Government Officer, Etc., Knowingly Compil-
ing or Issuing False Statistics Respecting Crops. — Sec-
tion 124 of the new Code is likewise pioneer legislation,
and is in the following words:

"Whoever, being an officer or employee of the United States, and
whose duties require the compilation or report of statistics or in-
formation relative to the products of the soil, shall knowingly compile
for issuance, or issue, any false statistics or information as a report
of the United States, shall be fined not more than five thousand dol-
lars, or imprisoned not more' than five years, or both."

§ 169. Counterfeiting Weather Forecasts, Interfering
with Signals, Etc. — In the 33 Statute at Large, page
864, there was annexed to the Agricultural Department
Appropriation Act the following statute, with reference
to the protection and reliability of weather reports and
forecasts, including signals issued by and under the con-
trol of the Agricultural Department :

"Any person who shall knowingly issue or publish any counterfeit
weather forecasts or warnings of weather conditions, falsely repre-
senting such forecasts or warnings to have been issued or published
by the Weather Bureau or other branch of the Government Service,
or shall molest or interfere with any weather or storm flag or weath-
er map or bulletin displayed or issued by the United States Weather
Bureau, shall be deemed guilty of a misdemeanor, and on conviction
thereof, for each offense, be fined in the sum not exceeding five hun-
dred dollars, or imprisoned not to exceed ninety day», or be both fined
and imprisoned, in the discretion of the Court."

CHAPTER VIII.

OFFENSES AGAINST OPERATIONS OF THE GOVERNMENT

170. New Code Generally Under This Head.

171. Forgery of Letters Patent.

172. Forging Bond, Bid, Public Record, Etc.
172a. Covers Civil Service Examination, Etc.
172b. False Claims Continued.

173. Forging Deeds, Powers of Attorney, Etc.
173a. Illustrative Cases.

174. Having Forged Papers in Possession.

175. False Acknowledgments.

176. Falsely Pretending to be a United States Officer.
176a. Intent to Defraud, Etc.

177. False Personation of Holder of Public Stocks.

178. False Demand or Fraudulent Power of Attorney.

179. Making or Presenting False Claims.
179a. Same, Continued.

180. Embezzling Arms, Stores, Etc.

181. Conspiracies to Commit Offenses Against the United States;

All Defendants Liable for Acts of One.
181a. Indictment.
181b. Conspiracy Continued.

182. Sufficiency of Description.

183. Venue.

183a. Special Charge on Venue.

184. Illustrative Cases.

184a. Illustrative Cases Continued.

185. Bribery of United States Officer.
185a. Officer — Meaning of.

186. Unlawful Taking or Using Papers Relating to Claims.

187. Persons Interested not to Act as Agents of the Government.

188. Enticing Desertions From the Military or Naval Service.

189. Enticing Away Workmen.

190. Injuries to Fortifications, Harbor Defenses, Etc.

191. Unlawful Entering Upon Military Reservation, Fort, Etc.

192. Robbery or Larceny of Personal Property of the United States.

193. Embezzling, Stealing, Etc., Public Property.

194. Receivers, etc., of Stolen Property.

195. Timber Depredation on Public Lands.

196. Timber, Etc., Depredation on Indian and Other Reservations.

197. Boxing, Etc., Timber on Public Lands for Turpentine, Etc.

198. Setting Fire to Timber on Public Lands.

199. Failing to Extinguish Fires.

200. Breaking Fence or Gate Enclosing Reserve Lands, or Driving

or Permitting Live Stock to Enter Upon.

(338)

Against Operations of Government. 339

§ 201. Injuring or Removing Posts or Monuments.

202. Interrupting Service.

203. Agreement to Prevent Bids at Sale of Lands.

204. Injuries to United States Telegraph, Etc., Lines.

205. Counterfeiting Weather Forecasts.

206. Interfering with Employees of Bureau of Animal Industry.

207. Forgery of Certificate of Entry.

208. Concealment or Destruction of Invoices, Etc.

209. Resisting Revenue Officers; Rescuing or Destroying Seized

Property, Etc.

210. Falsely Assuming to be Revenue Officers.

211. Offering Presents to Revenue Officers.

212. Admitting Merchandise to Entry for Less than Legal Duty.

213. Securing Entry of Merchandise by False Samples, Etc.

214. False Certification by Consular Officers.

215. Taking Seized Property from Custody of Revenue Officer.

216. Forging, Etc., Certificate of Citizenship.

216a. Cancellation of Illagally Secured Certificates of Citizenship.

217. Engraving, Etc., Plate for Printing or Photographing, Conceal-

ing or Bringing Into the United States, Etc., Certificate of
Citizenship.

218. False Personation, Etc., in Procuring Naturalization.

219. Using False Certificate of Citizenship or Denying Citizenship,

Etc.

220. Using False Certificate, Etc., as Evidence of Right to Vote.

221. Falsely Claiming Citizenship.

222. Taking False Oath in Naturalization.
222a. Oath Must be Material.

223. Provisions Applicable to all Courts of Naturalization.
223a. To Cancel Certificate.

224. Corporations, Etc., Not to Contribute Money for Political Elec-

tions, Etc.

§ 170. In tlie new Criminal Code, which went into
effect January 1, 1910, there are fifty-eight sections, from
27 to 58 inclusive, which treat of various offenses under
the above general head, many of which sections will not
be considered herein, other than to copy them, and refer
to the old Section of the Revised Statutes of like nature,
for the reason that such offenses are scarcely ever com-
mitted.

§ 171. Forgery of Letters Patent. — The Act of March
3, 1825, which became Section 5416 of the Revised Stat-
utes, and which the Court, in the case of United States
vs. Irwin, 5 McLean, 178, determined had repealed the
fourteenth section of the Act of April 30, 1790, which pro-

'M'2 Federal Criminal Law Procedure.

made clear by the opinion in the case of United States vs.
Wentworth, 11 Federal, 52.

It is absolutely necessary that the indictment allege
that the acts were committed for the purpose of defraud-
ing the United States, and that the persons so committing
the offense had such intent; and if the facts completely
show upon their face that the result would not have been
a fraud upon the United States, or that the United States
could not have been defrauded, then and in that event,
no offense is plead.

In the case of United States vs. Barnhart, 33 Federal,
459, which grew out of a forged affidavit with reference
to the selection of certain Government lands, the Court
held that even though the affidavit was false and forged,
no offense was committed, for the reason that the affi-
davit could not be legally used before the Land Office or
before the Secretary of the Interior, for the reason that
those officers had theretofore superseded such affidavits;
hence, such affidavits could not be legally used to defraud
the United States.

In United States vs. Gowdy, 37 Federal, 333, the Court
held that a false affidavit in support of a pension would
support a prosecution hereunder, because the same was
in support of a claim against the Government, which
would have resulted in defrauding the Government.

In United States vs. Bunting, 82 Federal, 883, an ap-
plicant for a Government clerkship filed a sworn appli-
cation in the form required for an examination by the
Civil Service Commission, and was afterwards notified
by postal card to appear for examination at a time stated.
By previous arrangement, another person, impersonating
the applicant, presented himself for examination, and
filled out a paper known as the declaration sheet, which
contained questions concerning the applicant, and signed
the applicant's name thereto. The Court held that Sec-
tion 5418 covered such a case, and sustained the indict-
ment, and observed that the acts were an attempt to
prejudice the rights of the United States in the adminis-
tration of the Civil Service Statutes, and had the defend-
ant been successful, he would have obtained a privilege
which would have placed him in a favored class, and

Against Operations of Government. 343

have entitled him to an advantage over others in the ap-
pointment to office, which privilege was a valuable one,
and would have been in prejudice of the Government.

In the case of Staton vs. United States, 88 Federal, 253,
the Circuit Court of Appeals for the Eighth Circuit, in
passing upon a case wherein the defendant had been con-
victed while a postmaster for making out his quarterly
accounts and forging the name of the Justice of the Peace
thereto, and thus pretending to show that he had taken
his oath to the correctness of his accounts before the
Justice of the Peace, and upon the trial of which the
defendant had contended that, as a matter of fact, his
accounts were just and true, and had thereupon requested
the trial court to instruct the jury that if, as a matter
of fact, his accounts were true and just, that then and in
that event the United States could not have been defraud-
ed, said:

"Inasmuch as the trial Court, in its charge, altogether ignored the
intent with which the acts complained of had been committed, and
instructed the jury that the accused was guilty of the crime of forg-
ery, if he signed the name of the Justice to his reports, .... it is
manifest that there was error."

The Court further said that the accused was entitled to
have the jury determine the intent involved, because it
was a ncessary ingredient of the offense charged in the
indictment, as to whether he had been actuated with an
intent to defraud the United States.

So, also, in the case of the United States vs. Ah Won,
97 Federal, 494, it was held that the making of a blank
form of a certificate of residence, such as when filed are
issued by the United States to Chinese and entitled them
to remain in the country, is not within Section 5418, mak-
ing it a crime to counterfeit any writing for the purpose
of defrauding the United States.

In United States vs. McKinley, 127 Federal, 166, the
Court held that the forgery of homestead applications
and affidavits with intent to thereby obtain title to public
lands of the United States, constitutes an offense under
Section 5418, although the land was described as in
Township 24 South of Range East, without naming the

344 Federal Criminal Law Procedure.

meridiaD, where, in fact, all the townships in the state
are numbered from the same meridian, and the descrip-
tion was, therefore, sufficient to identify the lands to the
officers acting on the papers, and such papers were ca-
pable of effecting the intended fraud.

In the case of Neff vs. United States, 165 Federal, 273,
the Circuit Court of Appeals for the Eighth Circuit, held
that when a false instrument or affidavit is so palpably
and absolutely invalid that it cannot defraud or inflict
loss or injury under any circumstances, it may not form
the basis of a charge of forging it or of uttering it, or of
transmitting it, to the officer, to defraud the United
States; but if, under any contingency, it may have the
effect to deceive and defraud, it is sufficient to found a
conviction of such an offense upon. This decision arose
in a case where the defendant had forwarded to the of-
ficers of the Land Department affidavits that were forged
and false, which were erroneously received by the Land
Office, but which, if acted upon, would have caused the
issuance by the United States of a patent to the land,
which purchase could not have been successfully attacked
collaterally if the land had passed into the hands of an
innocent purchaser, and the United States would thereby
have been defrauded.

§ 172a. Covers Civil Service Examination. — This stat-
ute is broad enough to make unlawful a fraudulent civil
service examination or the forging of a voucher in a bid.
Hass vs. Henkle, 216 U. S., 462; Curley vs. U. S., 130
Federal, 1; U. S. vs. Bunting, 82 Federal, 883; U. S. vs.
Plyler, 222 U. S., 15. It is not necessary that there should
be a pecuniary loss to the Government. Hass vs. Henkle,
216 U. S. 462.

Sec. 172b. False Claim, etc., Continued.

Sec. 28, above, will not support a prosecution for a
false claim if the claim was not forged; the prosecution
in such a case will be under Sec. 29, U. S. vs. Smith, 262
F. 191.

§ 173. Forging Deeds, Powers of Attorney, Etc.—
Section 29 of the new Code, in the following words:

Against Operations of Government. 345

"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 coun-
terfeiting, any deed, power of attorney, order, certificate, receipt, con-
tract, 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, or whoever shall utter or publish as true, or cause
to be uttered or published as true, any such false, forged, altered, or
counterfeited deed, power of attorney, order, certificate, receipt, con-
tract, or other writing, with intent to defraud the United States,
knowing the same to be false, altered, forged, or counterfeited; or
whoever shall transmit to, or present at, or cause or procure to be
transmitted to, or presented at, any office or officer of the Government
of the United States, any deed, power of attorney, order, certificate
receipt, contract, or other writing, in support of, or In relation to,
any account or claim, with intent to defraud the United States, know-
ing the same to be false, altered, forged, or countered, shall be fined
not more than one thousand dollars and imprisoned not more than
ten years."

takes tlie place of old Section 5421, and contains all of the
elements of the old Section, and adds thereto the word
"contract," and changes the punishment, fixing a maxi-
mum fine and imprisonment.

Considered abstractly, the Section comprises three of-
fenses: first, the making of any forged or counterfeited
deed or other writing as therein enumerated for the
purpose of obtaining any sum of money from the United
States or any of its officers; second, the uttering of any
such forged or counterfeited paper, with the intent to
defraud the United States, knowing it to have been so
forged; third, the transmitting or presenting to any office
or officer of the Government any such writing, with
knowledge that it is false, or forged, with the intent to
defraud the United States. An indictment, therefore,
under either of the three parts, must contain the ele-
ments as above set out, and must specially plead the
intent and knowledge where requisite. So, likewise, a
bill that includes in one count allegations that set up
acts covering the entire statute, would be bad for du-
plicity.

In the case of United States vs. Fout, 123 Federal, 625,
District Judge Adams divided the statute as above in-

346 Federal Criminal Law Procedure.

dicated. In the case of United States vs. Swan, 131 Fed-
eral, page 140, the same judge, in passing upon this stat-
ute, held that the forgery of an affidavit by a pensioner,
to be used in contesting his deserted wife's claims for
one-half of his pension, as authorized by the Act of March
3, 1899, was not a offense within old Section 5421, which
provided 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., was not an offense thereunder. The decision is based
upon the ground that the purpose of Swan seemed to be
to make use of the forged writing to prevent his wife
from obtaining half of the pension, which had already
been allowed to him. He was, therefore, making no
claim against the United States for himself. His right
to a pension had already been established, and he, there-
fore, did not have the necessary intent under the statute
to obtain or receive from the United States, etc., any sum
of money.

Carrying out this distinction, the cases of United States
vs. Barney, 5 Blatchf., 294, and United States vs. Myler,
27 Federal Case No. 15849, can be read with profit, since
they hold that the first and second parts of the old sec-
tion, and, therefore, of course, of the new statute, are
confined to instruments designed to obtain money from
the United States, and a count alleging the forgery and
uttering of a certain false and fraudulent bond on the
exportation of distilled liquors charges no offense under
the section. To the same effect is the case of United
States vs. Reese, 4 Sawyer, 629, which held in substance
that an indictment for uttering and presenting as true to
the Board of Land Commissioners, a false writing pur-
porting to be a grant of certain described lands from the
Mexican Government, with intent to defraud the United
States, knowing the same to be false, was subject to de-
murrer on the ground that the section applied only to
instruments altered or forged for the purpose of obtain-
ing moneys from the United States or their officers or
agents. To the same effect is Staton vs. United States, 88
Federal, 253, where it was held that an indictment which

Against Operations of Government. 347

alleged the signing of the name of a Justice of the Peace
to an affidavit, with the intent to defraud the United
States, charged no offense under the section.

In United States vs. Wilson, 28 Federal Case No. 16732,
it was held that the words "other writing" did not em-
brace a forged endorsement of a genuine instrument, as
the forgery to a bank check drawn by a Pension Agent
upon a depository of the United States.

In the case of the United States vs. Rohmstormm, 5
Blatchf., 222, it was held that a claim against the Gov-
ernment under this section need not be in favor of the
party presenting the false writing or instrument or paper
in support thereof.

In United States vs. Glasener, 81 Federal, 566, the
Court held that false statements in the certificate of a
notary public did not come within the provisions of the
section; to the direct contrary of which holding is the
case of the United States vs. Hartman, 65 Federal, 490,
the courts being of equal dignity. In that case, the Court
held that the statement in a certificate of something that
was not true, if taken with the intent and knowledge re-
quired by the statute, would authorize prosecution there-
under, and subject the offender to punishment. To the
same effect, is the decision in the case of United States
vs. Moore, 60 Federal, 738.

In the cases of United States vs. Wilcox, 4 Blatchf.,
385, and United States vs. Bickford, 4 Blatchf., 337, it
was held that where a writing did not state all the facts,
if made with the intent to defraud denounced by the
statute, it would constitute an offense under this section.
It must be remembered, as a general proposition, that
the false statements so made must be material, just as
materiality is meant in a prosecution for perjury. Every
false oath is not perjury. United States vs. Corbin, 11
Federal, 238.

In the case of United States vs. Moore, 60 Federal, 738,
District Judge Cox in passing upon a demurrer to an
indictment under this section, says that,

"the authorities are unanimous in holding that the first paragraph
of this Section 5421 is a forgery, and not a perjury, statute. It pun-

348 Federal Criminal Law Peoceduee.

ishes 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 the crime of forgery. False
making may almost be said to be synonymous with forging. United
States vs. Statts, 8 Howard, 41; U. S. vs. Barney, 5 Blatchf., 294;
U. S. vs. Wentworth, 11 Federal, 52; U. S. vs. Reese, 4 Sawyer, 629;
U. S. vs. Cameron, 4 Dakota, 141, 13 N. W., 561; State vs. Wilson, 28
Minnesota, 52, 9 N. W., 28; Mann vs. People, 15 Hun., 155; State
vs. Young, 46 N. H., 266; Commonwealth vs. Baldwin, 11 Gray, 197;
Barb. Criminal Law, 97; Wharton Criminal Law, 653. 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 the acts of omission and commission attend-
ing the fabrication of the affidavit and jurat, it amounts only to an
averment that the notarial certificate is false. The names signed to
the affidavit and jurat are all genuine. No part of the affidavit has
been altered, forged, or counterfeited. In short, tvie certificate con-
tains a number of false statements. It is a false certificate, but not
a forged certificate. No authority has been cited or found by the
Court, holding that a notary who signs a certificate containing un-
truthful statements, is guilty under a forgery statute. The statute
must be construed strictly, and until such authority is presented,
I shall hold that the paragraph quoted does not cover such an offense.''

Of course, the indictment must allege that the forged
or altered paper was transmitted to the officer of the
Government in support of, or in relation to, a pending
claim. In other words, it must appear that there was an
account or claim against the United States. United States
vs. Kessell, 62 Federal, 59. See also U. S. vs. Albert, 45
Federal, 552; United States vs. Kuentsler, 74 Federal,
220; United States vs. Hansee, 79 Federal, 303; De Lemos
vs. United States, 91 Federal, 497.

In De Lemos vs. United States, 91 Federal, 499, the
case arose by reason of the forgery of an endorsement to
a genuine Government draft, and the Circuit Court of
Appeals for the Fifth Circuit held that an indictment, to
be good under 5421, on such a state of facts, should lay
the charge on the endorsement, and not on the draft be-
cause it was the endorsement that was forged, and not
the draft.

Sec. 173a. Illustrative Cases.

Against Operations of Government. 349

U. S. vs. Smith, 262 F.491; U. S. vs. Davis. 231 U. S.
183. These cases are illustrative of prosecution- under
Sec. 29.

§ 174. Having Forged Papers in Possession.— Section
30 of the new Code is in the following words:

"Sec. 30. Whoever, knowingly and with intent to defraud the
United States, shall have in his possession any false, altered, forged,
or counterfeited deed, power of attorney, order, certificate, receipt,
contract, or other writing, for the purpose of enabling another to
obtain from the United States, or from any officer or agent thereof,
any sum of money, shall be fined not more than five hundred dollars.
or imprisoned not more than five years, or both."

The new section fixes a maximum punishment, and con-
tains the word "contract." The old statute 5422 left the
punishment to the discretion of the Court. These are
the only two differences between the old and the new.

§ 175. False Acknowledgments. — Section 31 of the
new Code reads as follows:

"Sec. 31. Whoever, being an officer authorized to administer oaths
or to take and certify acknowledgments, shall knowingly make any
false acknowledgment, certificate, or statement concerning the ap-
pearance before him or the taking of an oath or affirmation by any
person with respect to any proposal, contract, bond, undertaking, or
other matter, submitted to, made with, or taken on behalf of, the
United States, and concerning which an oath or affirmation is require t
by law or regulation made in pursuance of law, or with respect to
the financial standing of any principal, surety, or other party to any
such proposal, contract, bond, undertaking, or other instrument, shall
be fined not more than two thousand dollars, or imprisoned not more
than two years, or both."

This is an entirely new section. In the 1909 Supple-
ment of the Federal Statutes annotated, it is said in
speaking of this section, that,

"This section is new. As originally drafted, it was designed to
reach officers making false acknowledgments in contracts, etc , with
the Post-office Department, that department having strongly recom-
mended such a section, in order to put a stop to abuses which fre-
quently occured with respect to mail and othen contracts. The Com-
mittee on Revision of Laws approved the recommendation, and broad-
ened the section so as to punish false acknowledgments with respect
to any contract made with or on behalf of the Government."

350 Federal Criminal Law Procedure.

This statute would seem to answer the cases cited under
Section 29, which held that a false certificate of a notary
was not punishable.

§ 176. Falsely Pretending to be a United States Offi-
cer.— Section 32 of the new Code, in the following words:

"Whoever, with intent to defraud either the United States or any
person, shall falsely assume or pretend to be an officer or employee
acting under the authority of the United States, or any department,
or any officer of the Government thereof, and shall take upon him-
self to act as such, or shall in such pretended character demand or
obtain from any person or from the United States, or any department,
or any officer of the Government thereof, any money, paper, document,
or other valuable thing, shall be fined not more than one thousand
dollars, or imprisoned not more than three years, or both,"

contains a general statute, which was originally a special
statute against one falsely representing himself to be a
Revenue Officer, as set out in old Section 5448. This
section was amended in the 23 Statute at Large, page 11,
Chapter 26, First Supplement 425, and passes into the
new Code as shown above.

In the case of the United States vs. Ballard, 118 Fed-
eral, 757, District Judge Phillips, in passing upon an in-
dictment drawn under the above mentioned amendment,
held that this statute covered the obtaining of some
valuable thing by means of the fraudulent standing or
credit secured by holding one's self out as such an officer,
and that a month's lodging is a valuable thing within
the meaning of the law.

The opinion sets out the indictment that was being
passed upon, which charges that the defendant pretended
to be a Deputy United States Marshal, and in such pre-
tended character, did demand and obtain from Julia Eg-
geling a thing of value, to wit, lodging of the value of
twenty dollars. A second count therein pleads the same
fact in a different manner. While the indictment is in
general terms, the Court, in passing thereon, upon ob-
jection, held that the offense was statutory, and a bill
sufficiently describes the same, which follows the lan-
guage of the statute and describes in addition thereto
the act that was done to constitute the offense.

Against Operations of Government. 351

Judge Adams, in United States vs. Taylor, 108 Federal,
held that the section created two offenses, the first of
which included as an essential element, the use of such
assumed position to extort money or property by wrong-
fully asserting a pretended claim of the United States,
and the second comprehending the extortion of money
not under the guise of asserting a claim due the United
States, but including the holding out of the offender as
an officer for the purpose of giving him such credit as
will entitle him to successfully demand money from an-
other for his private use, with intent to defraud, and.
therefore, an indictment charging that the defendant
feloniously, with the intent to defraud H., did falsely as-
sume and pretend to be an officer acting under the authori-
ty of the United States Treasury Department, and did then
and there feloniously, and with intent to defraud said
H., take upon himself to act as such officer, and as a part
of the same sentence including the charge, "and did then
and there in such assumed and pretended character as
such officer, demand and receive the sum of ten dollars, ';
was demurrable for duplicity. Judge Simonton, in charg-
ing the jury under this statute, told them that it was
necessary to find that the defendant assumed to be the
officer mentioned in the indictment; that such assump-
tion was false; that he made such false assumption with
the intent to defraud; and that he carried out such intent.
That was in the case of United States vs. Curtain, 43
Federal, 433, which was an indictment growing out of
one pretending to be a Post-office Inspector, and in such
pretended capacity, visited a postmaster, and charged
him with an illegal sale of stamps, which illegal sale the
postmaster admitted; whereupon, the imposter received
one hundred fifty dollars from the postmaster, giving hi in
a receipt in full for the stamps illegally used, and signing
it as Post-office Inspector. The same judge in United
States vs. Bradford, 53 Federal, 542, charged the jury to
find the defendant not guilty upon the following state
of facts: A Postal Clerk was in his postal car, assorting
his mail, and he discovered Bradford concealed in a cor-
ner of the car. He sprang and seized him by the collar.
The defendant at once said, "lam Bradford, and in the

352 Federal Criminal Law Procedure.

service." The Postal Clerk denied that he was in the
service, and Bradford then said, "I have been discharged,
but am trying to steal a ride to Florence. ' ' The facts not
showing that Bradford claimed at the time to be an
employee of the United States, he was not guilty of a
violation of this section.

In United States vs. Farnham, 127 Federal, 478, Dis-
trict Judge McPherson set aside a conviction, and dis-
charged the defendant, in a case under this statute, which
showed the following facts: The defendant, while stop-
ping at the prosecutor's hotel as a guest, falsely repre-
sented himself to the prosecutor as a Secret Service op-
erative in the employ of the Government, and exhibited
to the prosecutor a metal badge, inscribed, ' ' Secret Serv-
ice, U. S." Ten months thereafter, the defendant re-
turned, and represented himself as a traveling salesman,
spending several days at the hotel. Prosecutor believed
defendant to be a Free Mason, and took special care of
him during sickness on that account, after which the
defendant presented a check which he alleged had been
signed by his employer in payment of his salary, and
obtained seventy dollars thereon from prosecutor. The
check was drawn on a bank which did not exist; was
returned unpaid, and the prosecutor declared that he
cashed the check because he continued to believe that the
defendant was a Secret Service operative.

In discharging the defendant, the Court held that the
facts were not sufficient to sustain a conviction for pre-
tending to be an employee of the United States, and as
such, knowingly and feloniously obtaining from another
a sum of money, etc.

§ 176a. Intent to Defraud, Etc. — The intent to de-
fraud is an essential element of Section 32, hence one
would not be guilty under it who induces another to
purchase certain books through representations that the
seller was an employee acting under the authority of the
United States, if the purchaser was not defrauded but
had received just what he bargained for. U. S. vs. Rush,
196 Federal, 580. There must really be an officer such as
is personated and one who sells a book as an U. S. officer

Against Operations of Government. 353

by representing that the money therefor goes into U. S.
Treasury is not guilty under this section. U. S. vs. Bar-
now, 221 Federal, 140.

Sec. 176 b. Falsely Pretending to be United States
Officer Continued.

A detective who pretends to be an officer in order to
arrest sailors for whom reward was offered violates the
foregoing statute, Reeder vs. U. S., 252 F. 21.

It is an offense under this section even though there
be no such officer as that pretended, U. S. vs. Barrow, U.
S. Sup. Ct. Oct. 1915.

A congressman is such an "officer" as is protected by
this statute, Lamar vs. U. S., Sup. Ct. Oct. 1915.

It is unlawful to use the name of any government offi-
cer in advertising and practicing before any United
States department, but there is no penalty therefor, see
Act April 27, 1916, under head false personation.

It is an offense under this section even though whiskey
is received and even though one already is an officer of
the United States, Russell vs. U. S., 271 F. 684.

In the foregoing case the Circuit Court of Appeals said
that the act should be construed in harmony with its aim
which is not merely to protect innocent persons from
actual loss, but to maintain the general good repute and
dignity of the federal service itself.

The substance of the offense is the various exemptions
of federal authorities when accompanied with fraudulent
intent and an indictment need not allege that the defend-
ant pretended to be any particular officer but it is suffi-
cient to change that he claimed authority under the Unit-
ed States, 248 F. 873, Roberts vs. U. S.,

§ 177. False Personation of Holder of Public Stocks.
—Section 33 of the new Code, which re-enacts old Section
5435, is in the following words:

"Sec. 33. Whoever shall falsely personate any true and lawful
holder of any share or sum in the public stocks or debt of the United
States, or any person entitled to any annuity, dividend, pension, prize
money, wages, or other debt due from the United States, and, under
color of such false personation, shall transfer or endeavor to transfer
such public stock or any part thereof, or shall receive or endeavor to
receive the money of such true and lawful holder thereof, or the

354 Federal Criminal Law Procedure.

money of any person really entitled to receive such annuity, dividend,
pension, prize money, wages, or other debt, shall be fined not more
than five thousand dollars, and imprisoned not more than ten years."

§ 178. False Demand or Fraudulent Power of Attor-
ney.— Old Section 5436 is displaced by the new Code in
Section 34, as follows:

"Sec. 34. Whoever shall knowingly or fraudulently demand or en-
deavor to obtain any share or sum in the public stocks of the United
States, or to have any part thereof transferred, assigned, sold, or
conveyed, or to have any annuity, dividend, pension, prize money,
wages, or other debt due from the United States, or any part thereof,
received, or paid by virtue of any false, forged, or counterfeited power
of attorney, authority, or instrument, shall be fined not more than
five thousand dollars, and imprisoned not more than ten years."

§ 179. Making or Presenting False Claims. — Sec-
tion 5438 of the old statutes is replaced by Section 35 of
the new Code, in the following words:

"Sec. 35. Whoever shall make or cause to be made, or present or
cause 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 whoever, for the purpose of obtain-
ing, or aiding to obtain the payment or approval of such claim, shall
make or use, or cause 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; or
whoever shall enter into any agreement, combination, or conspiracy
to defraud the Government, of the United States, or any department
or officer thereof, by obtaining or aiding to obtain the payment
or allowance of any false or fraudulent claim; o^ whoever, hav-
ing charge, possession, custody, or control of any money or other pub-
lic property used or to be used in the military or naval service, with
intent to defraud the United States, or wilfully to conceal such money
or other property, shall deliver or cause to be delivered, to any other
person having authority to receive the same, any amount of such
money or other property less than that for which he received a certi-
ficate or took a receipt; or whoever, being authorized to make or
deliver any certificate, voucher, receipt, or other paper certifying the
receipt of arms, ammunition, provisions, clothing, or other property
so used or to be used, shall make or deliver the same to any other
person without full knowledge of the truth of the facts stated therein,
and with intent to defraud the United States, shall be fined not more
than five thousand dollars, or imprisoned not more than five years.

Against Operations of Government. 355

or both. And whoever shall knowingly purchase or receive in pledge
for any obligation or indebtedness from any soldier, officer, sailor, or
other person called into or employed in the military or naval service,
any arms, equipments, ammunition, clothes, military stores, or other
public property, whether furnished to the soldier, sailor, officer, or
other person under a clothing allowance or otherwise, such soldier,
sailor, officer, or other person not having the lawful right to pledge
or sell the same, shall be fined not more than five hundred dollars,
and imprisoned not more than two years."

This section contains several offenses, and sets out two
different punishments. It is necessary, in alleging an of-
fense under the first portion of the section that there be
an averment that the false claim, etc., was made for he
purpose of being presented; in other words, a false claim
that was not made for such a purpose is not inhibited by
the statute. In prosecutions under this portion of the
statute, it is not necessary to set out the name of the officer
or person to whom the claim was presented, if such per-
son be sufficiently designated by his position, as First
Auditor of the Treasury. So, also, different items of the
account may all be included in one count of the indict-
ment. United States vs. Ambrose, 2 Federal, 764.

In United States vs. Coggin, 3 Federal. 492, the Court
held that old Section 5438 includes a false claim presented
by a person as a pensioner, demanding money as a pen-
sioner. In that case, the defendant, by fraud, secured a
pension certificate from the Government, and thereby had
his name entered on the pension roll. This certificate he
presented to the Pension Agent, and obtained money
from the United States. The indictment alleged that the
grounds upon which the application was sustained before
the Commissioner of Pensions and his name entered upon
the list of pensioners, were all false, fictitious, and frau-
dulent, and that in fact he was not injured at the battle at
Corinth in any way, and was not entitled to a pension.
The Court held that the facts alleged were sufficient to
constitute an offense under that section.

In the case of United States vs. Hull, 14 Federal, 324, it
was held by a District Court, that the section was not
limited in its operation to false claims presented by the
accused on his own behalf, but applied as well to such
claims presented by an attorney, agent, officer, or other

356 Federal Criminal Law Procedure.

person presenting or aiding in the collection of a false
claim, knowing it to be false. Of course, the allegation of
"knowledge" is absolutely necessary, as is also the proof.
An indictment under this section that the defendant "pre-
sented and caused to be presented," is not bad for duplic-
ity, because the statute employs the disjunctive "or" in-
stead of "and." In United States vs. Franklin, 174 Fed-
eral, 161, the same question was passed upon, and the
Court held that an indictment was not bad for duplicity
because it charges that the accused "made and pre-
sented." In the Franklin case the indictment, which set
out the claim showing it to be an itemized account, and
averred that certain sums charged therein "should have
been" certain smaller sums, sufficiently shows wherein
the claim is false and fraudulent. In that case it was al-
leged that the fraudulent claim was against the War De-
partment of the United States, and described the officer
to whom the claim was presented as a Brigadier-General
in the Army, and Superintendent of the Military Academy
at West Point, and alleged that he was an officer author-
ized to approve such claim. Held, that such allegation
was sufficient to show authority. Affirmed by U. S. Su-
preme Court, March 14, 1910.

The case of United States vs. Ingraham, 49 Federal,
155, was an indictment for presenting for payment and
approval to the Third Auditor of the Treasury Depart-
ment of the United States of America, a certain claim
against the Government of the United States, and also in
the second count for using a false affidavit in support
thereof. An objection of uncertainty, charging no offense
and duplicity, was overruled by the trial court, and the
same questions were presented to the Supreme Court in
the same case, reported in 155 U. S., page 436; 39 Law
Ed., page 213, and the conviction was affirmed, the Court
holding that it was not error, of course, to join distinct of-
fenses of the same class in one indictment in separate
counts, and that a paper presented to the Third Auditor
of the Treasury of the United States, in support of a claim
against the Government, purporting to be an affidavit cer-
tified to by a Justice of the Peace, is admissible in evi-

Against Operations op Government. 357

dence without formal proof that he had been duly com-
missioned and qualified as a Justice of the Peace, and
that the person indicted for presenting for payment a
false and fictitious claim to the Auditor of the Treasury,
and using a false affidavit in support thereof, if he knew
it to be false, is not the less guilty because the person pur-
porting to be a Justice of the Peace before whom the affi-
davit was sworn to, had not been commissioned as such,
and was not entitled to administer an oath.

In the case of United States vs. Michael, 153 Federal,
609, Judge Maxey instructed the jury that the receiving
in pledge by a civilian from a soldier, of clothing issued to
the latter, during the term of his enlistment, does not con-
stitute a penal offense within Revised Statutes 5438, pro-
viding that every person who purchases or receives in
pledge from a soldier any arms, equipment, ammunition,
clothing, military stores, or other public property, such
soldier not having the lawful right to pledge or sell the
same, shall be imprisoned, etc., since the clothing, on be-
ing issued to the soldier, becomes his individual property,
and ceases to belong to the United States. In conflict
with this opinion, seems to be the case of United States vs.
Koplik, 155 Federal, 919, in which Judge Chatfield holds
that it is not a defense to a prosecution under such stat-
ute, 5438, for receiving property in pledge from a soldier
while in the service, that such property consisted of cloth-
ing which he had paid for out of his clothes allowance, or
which had been charged against it. The policy of the
statute seems to be best served by Judge Chatfield 's de-
cision. In United States vs. Hart, 146 Federal, 202, a de-
cision of District Judge Bethea seems in a measure to
support Judge Chatfield 's construction of the statute. It
is there said:

"On motion to take from the jury, the question arose as to whether
certain articles of clothing, namely, caps, gloves, shoes, and goods
which had been issued to soldiers in the service of the United States,
and by them sold and pledged to the defendant, are public property
under Section 5438 of the Revised Statutes. Clothing is issued to
soldiers of the United States for use by them in the capacity of sol-
diers. The Government determines the character, quality, and kind
of clothing to be issued to the soldiers; and when the clothing i3

358 Federal Criminal Law Procedure.

issued, although it is charged against the soldiers on their clothing
account, they receive but a qualified interest therein."

The Seventeenth Article of War punishes the soldier by
Court Martial if he loses or spoils his clothing or accou-
trements, and Section 3748 authorizes the Government to
seize such property wherever found. This would indi-
cate that the title to clothing issued to soldiers remains in
the United States.

The case of United States vs. Smith, 156 Federal, 859,
while it is a prosecution under the same portion of the
statute, does not raise or discuss the conflict noted in the
above two cases. Judge Hanford, in the Smith case, in
charging the jury, says :

"You will observe that the provisions of this statute, 5438, apply to
persons who knowingly purchase or receive in pledge any of the kinds
of property described here from a soldier, officer, or sailor in the
service of the United States. The elements of the crime are guilty
knowledge, and the actual purchase of and receiving in pledge the
kind of property named, and receiving it from a person in the military
service of the United States. All those tilings are necessary to be
proven, in order to make out a criminal case, The guilty knowledge
that is a necessary element of the crime is not knowledge that the act
is unlawful. The law does not permit ignorance of the provisions of
the law to avail as a defense in any case, but the knowledge must be
knowledge of the facts — knowledge that the property offered for sale
or pledge is the military stores or property of the United States — that
is, arms, clothing, or property that is provided by the United States
for use in the military service, and knowledge that the person offering
to sell or to pledge it is a person in the military service at the time."

It must be borne in mind that Sections 3748 and 1242 of
the old statutes in short make the possession of such prop-
erty of the United States by a person not in the service of
the United States, prima facie evidence that it had been
sold or pledged.

Other cases bearing upon the statute in its entirety,
are the following: United States vs. Daubner, 17 Fed-
eral, 793; U. S. vs. Russell, 19 Federal, 591; U. S. vs. Gris-
wold, 24 Federal, 361; U. S. vs. Frisbie, 28 Federal, 808;
U. S. vs. Ehodes, 30 Federal, 431; U. S. vs. Griswold, 30
Federal, 604, also same Volume, 762; U. S. vs. Reichurt,
32 Federal, 142; U. S. vs. Jones, 32 Federal, 482; U. S. vs.

Against Operations of Government. 359

Eoute, 33 Federal, 246; TJ. S. vs. Gowdy, 37 Federal, 332;
U. S. vs. Wallace, 40 Federal, 144; U. S. vs. Newton, 48
Federal, 218; U. S. vs. Strobach, 48 Federal, 902; U. S. vs.
Adler, 49 Federal, 733; U. S. vs. Van Leuven, 62 Federal,
62; U. S. vs. Hartman, 65 Federal, 490; Rhodes vs. U. S.,
79 Federal, 740; Dimmick vs. U. S., 116 Federal, 825; IT.
S. vs. Lair, 118 Federal, 98; Pooler vs. U. S., 127 Federal,
509; Franklin vs. U. S., U. S. Sup. Ct., Oct., 1909, term.

In Bridgeman vs. United States, 140 Federal, 577, the
Circuit Court of Appeals for the Ninth Circuit held that
inasmuch as the statutory provisions and rules and regu-
lations of the Indian Department required accounts and
vouchers for claims and disbursements connected with
Indian affairs to be transmitted to the Commissioner of
Indian Affairs, that a transmission to such commissioner
by an agent of the Department, of a false voucher, etc.,
was an offense under 5438. This case also authorizes the
use of the words "making and presenting," as was con-
sidered to be correct in the cases cited above. Two of the
counts in that indictment are set out in the decision and
approved by the Court, as is also the full charge of the
trial judge.

Sec. 179 a. Making or Presenting False Claims Con-
tinued.

By Act of Oct, 23, 1918, C. 194, Sec. 35, above, was
amended to read as follows : —

"Whoever shall make or cause to be made or present or cause to
be presented, for payment or approval, to or by any person or offi-
cer in the civil, military, or naval service of the United States, or
any department thereof, or any corporation in which the United
States of America is a stockholder, any claim upon or against the
Government of the United States, or any department or officer thereof,
or any corporation in which the United States of America is a stock-
holder, knowing such claim to be false, fictitious, or fraudulent; or
whoever, for the purpose of obtaining or aiding to obtain the payment
or approval of such claim, or for the purpose and with the intent of
cheating and swindling or defrauding the Government of the United
States, or any department thereof, or any corporation in which the
United States of America is a stockholder, shall knowingly and wil-
fully falsify or conceal or cover up by any trick, scheme, or device
a material fact, or make or cause to be made any false or fraudulent
statements or representations, or make or use or cause to be made
or used any false bill, receipt, voucher, roll, account, claim, certificate,

^•60 Federal Criminal Law Procedure.

affidavit, or deposition, knowing the same to contain any fraudulent
or fictitious statement or entry; or whoever shall take and carry
away or take for his own use, or for the use of another, with intent
to steal or purloin, any personal property of the United States, or
any branch or department thereof, or any corporation in which the
United States of America is a stockholder; or whoever shall enter
into any agreement, combination, or conspiracy to defraud the Gov-
ernment of the United States, or any department or officer thereof,
or any corporation in which the United States of America is a stock-
holder, by obtaining or aiding to obtain the payment or allowance
of any false or fraudulent claim; and whoever, having charge, pos-
session, custody, or control of any money or other public property
used or to be used in the military or naval service, with intent to de-
fraud the United States, or any department thereof, or any corporation
in which the United States of America is a stockholder, or wilfully
to conceal such money or other property, shall deliver or cause to be
delivered to any person having authority to receive the same any
amount of such money or other property less than that for which he
received a certificate or took a receipt; or whoever, being authorized
to make or deliver any certificate, voucher, receipt, or other paper
certifying the receipt of arms, ammunition, provisions, clothing, or
other property so used or to be used, shall make or deliver the same
to any other person without a full knowledge of the truth of the facts
stated therein and with intent to defraud the United States, or any de-
partment thereof, or any corporation in which the United States of
America is a stockholder, shall be fined not more than $10,000 or im-
prisoned not more than ten years, or both. And whoever shall pur-
chase, or receive in pledge, from any person any arms, equipment,
ammunition, clothing, military stores, or other property furnished by
the United States, under a clothing allowance or otherwise, to any
soldier, sailor, officer, cadet, or midshipman in the military or naval
service of the United States or of the National Guard or Naval Militia,
or to any person accompanying, serving, or retained with the land or
naval forces and subject to military or naval law, having knowledge
or reason to believe that the property has been taken from the pos-
session of the United States or furnished by the United States under
such allowance, shall be fined not more than $500 or imprisoned not,
more than two years, or both."

For cases bearing upon some phase of the statute see
U. S. vs. Christopherson, 261 F. 225; Bolland vs. U. S.,
238 F. 529.

§ 180. Embezzling Arms, Stores, Etc. — As a compan-
ion to the section treated above, appears Section 36 in the
new Code, which displaces old Section 5439, and is in the
following words:

Against Operations of Government. 36]

"Sec. 36. Whoever shall steal, embezzle, or knowingly apply to his
own use, or unlawfully sell, convey, or dispose of, any ordnance, arms,
ammunition, clothing, subsistence, stores, money, or other property
of the United States, furnished or to be used for the military or naval
service, shall be punished as prescribed in the preceding section."'

As somewhat enlightening upon the question as to what
steps one should take in order to be in the military service
of the United States, may be read the case of Johnson vs.
Sayre, 158 U. S., 109. In that particular case, the Court
held that a postmaster's clerk in the navy, appointed
by the Secretary of the Navy with the approval of the
President, is in the naval service of the United States;
but in the reasoning of the opinion will be found a number
of authorities and reasons that apply to other conditions.

Section 36 above quoted occupies the same position to
Section 35 as old Section 5439 did to old Section 5438,
and, therefore, the observation of District Judge Swing,
in the case of United States vs. Murphy, 9. Federal, page
26, is applicable and pertinent. In that case the indict-
ment was drawn under Section 5439. It contained two
counts, charging that the defendant had applied to his
own use an overcoat, which had been issued to an inmate
of the National Military Home at Dayton, to be used by
him for the military service of the United States. A de-
murrer to the bill raised the question whether clothing so
issued to inmates of that institution was within the pro-
hibition of that section. The Court said:

"The preceding section (5438) prohibits the purchase of clothing,
etc., from any soldier or other person called into or employed in the
military service of the United States, such soldier or person not hav-
ing the lawful right to sell the same. This section (5439), then,
prohibits any person from knowingly applying to his own use any cloth-
ing or other property of the United States, furnished or to be furnished
for the military service. Under Section 5438, the clothing must be pur-
chased from a person 'in the military service;' under Section 5439,
it must be clothing or other property of the United States 'furnished
or to be used for the military service.' The indictment, it is true,
charges in one count that the overcoat in question was 'furnished for
the military service,' and in the other that it was 'to be used for the
military service;' but in each it appears it had been issued to an in-
mate of the home. It is claimed in argument on behalf of the Govern-
ment that these military homes are a part of the military establish-

?62 Fedeeal Criminal Law Procedure.

ment, and clothing issued to the inmates is furnished and used for
the military service. It is clear that the inmates of these homes are
not in the military service. It is not claimed that Section 5438 ap-
plies to the purchase of clothing from them; nor do I think that the
clothing issued to them is used in the military service of the United
States. Congres could probably prohibit the purchase or clothing
from these inmates, and punish any one applying it to other purposes
than for which it is issued; ) but the law in force does not apply to it,
and a demurrer must be sustained."

Sec. 180 a, Embezzling, Arms, Stores, etc., Continued.

The Circuit Court of Appeals for the 5th Circuit holds
that Sec. 36 is ineffective because of two punishments,
Apr. 1920; to the same effect as Holmes vs. U. S., 267 F.
529.

§ 181. Conspiracies to Commit Offenses Against the
United States; All Defendants Liable for Acts of One. —

One of the most useful and comprehensive statutes in the
old revision was Section 5440, which is re-enacted in the
new Code in Section 37, in the following terms:

"Sec. 37. If two or more persons conspire either to commit any
offense against the United States, or to defraud the United States in
any manner or for any purpose, and one or more 01? such parties do
any act to effect the object of the conspiracy, each of the parties to
such conspiracy shall be fined not more than ten thousand dollars, or
imprisoned not more than two years, or both."

The old and the new sections are practically identical
with the single exception that there is no minimum pun-
ishment under the latter. Indictments under this statute
must comprehend in allegation, not only whatever aver-
ments are necessary under it, but also the necessary al-
legations and ingredients of the offense or statute for
which the conspiracy was formed. An indictment that
fails to set out the elements of the offense conspired to
be committed is bad. A conspiracy as commonly under-
stood, is a corrupt agreeing together of two or more per-
sons to do, by concerted action, something unlawful,
either as a means or an end. The word "corrupt," as
used, means unlawful. The intendment of this defini-
tion is that to conspire to do an unlawful act; or to
conspire to accomplish a result which may in itself be

Against Operations of Government. 363

lawful, but to do it in an unlawful manner; or an unlaw-
ful agreement to accomplish an unlawful result, are con-
spiracies. The unlawful combination may be expressly
proven, or it may be provable from concerted action in
itself unlawful. If one join the conspiracy at any time
after the formation of the conspiracy, he becomes a
conspirator, and the acts of the others become his, by
adoption.

That there is, or may be, a difference between the
punishment prescribed in this section, and that pre-
scribed in the statute that the conspiracy was formed to
violate, is immaterial. Congress has the power, says
the Supreme Court of the United States, in Clune vs.
United States, 159 U. S., 590, to euact a statute making
a conspiracy to do an act punishable more severly than
the doing of the act itself. The power exists to separate
the offenses, and to affix distinct and independent penal-
ties to each.

As above indicated, there need be no proof of the ex-
press agreement. The full measure of the law is met if
the facts and circumstances indicate with the requisite
lawful certainty the existence of a preconcerted plan.
Reilley vs. United States 106 Federal, 896; U. S. vs. Cas-
sidy, 67 Federal, 698; U. S. vs. Barret, 65 Federal, 62;
U. S. vs. Wilson, 60 Federal, 890; U. S. vs. Newton, 52
Federal, 275; U. S. vs. Sacia, 2 Federal, 754. So, under
the same authorities, it need only be shown that one or
more of the overt acts charged in the indictment have
been committed, and that they were done in furtherance
of the conspiracy. Federal Statutes Annotated, Volume
2, page 250.

Texts-books and Courts unite in the proposition that
where there is a prima facie showing of conspiracy, all
of the acts done, and all of the declarations made in pur-
suance of the originally concerted plan, and with refer-
ence to the common object, by any one of the conspira-
tors, are admissible against all. The rule, however, ceases
after the conspiracy, has been ended; for, upon the com-
pletion of the conspiracy, acts and declarations of co-

?64 Federal Criminal Law Procedure.

conspirators are evidence only against the one so acting
or declaring. Logan vs. U. S., 144 U. S., 263.

In Taylor vs. U. S., 89 Federal, 954, the Court of Civil
Appeals for the Ninth Circuit, in a conspiracy prosecution
against certain defendants for entering into a conspiracy
to counterfeit and utter counterfeit coins of the United
States, the Court determined that the evidence showing
that one of the defendants resided with another of the
conspirators for six weeks, during which time the coins
were made, and that he wrote the letter ordering the
machine with which they were made, and that after the
arrest he wrote one of the defendants offering to assist in
procuring bail, was entirely sufficient to authorize the ad-
mission against him of the statements of his co-conspira-
tors. In that case, it was also determined that the order
of proof rests in the sound discretion of the Court; in
other words, the Court was not bound to exclude evidence
of declarations until the prosecution should first have
shown the connection of the defendant with the offense.
1 Greenleaf, Section 111; 6 Am. and Eng. Enc. of Law,
Second Ed, 689; State vs. "Winner, 17 Kamjis, 298.

§ 181a. Indictment. — An indictment under this sec-
tion is not duplicitious which shows a completed offense.
Stanley vs. U. S, 195 Federal, 896. The offense created
by this statute is a conspiracy and not an overt act.
Dwinnell vs. U. S., 186 Federal, 754. The collection of
commissions under a conspiracy to defraud the United
States through purchases for the commissary department
is an overt act. U. S. vs. Burke, 218 Federal, 83. Woman
who is victim in white slave violation may also be con-
spirator under this act. U. S. vs. Holte, 236 IT. S. 140. An
indictment under this section must charge the act consti-
tuting the offense with reasonable certainty and not mere
inference. U. S. vs. Atlanta Journal Co., 185 Federal, 656.
A crime under this statute is sufficiently charged if it be
stated that two or more persons named agreed together
to commit some act declared to be a crime by some stat-
ute of the United States and it is also charged that one
or more of such persons did an act to carry out the oh-

Against Operations of Government. 365

ject of such conspiracy. U. S. vs. Wupperman et al. 215
Federal, 135.

Sec. 181 b. Conspiracy to Commit offenses Against
United States Continued.

Sec. 37 does not make it a criminal offense to vote il-
legally, when, see U. S. vs. Gradwell, U. S. Sup. Ct. Apr.
1917.

For an indictment which is defective because of time
allegation under this statute see U. S. vs. Baker, 243 F.
746.

A conspiracy to resist the draft is a conspiracy to de-
fraud the United States, U. S. vs. Galleanni, 245 F. 977.
It is a violation of the statute in the following cases: —

To divert cars under the Hepburn Act, Dye vs. U. S.,

262 F. 6; to violate the bank act, U. S. vs. Baker, 243 F.
741; to defraud by black mailing suits, McKelvy vs. U. S.,
241 F. 801; to bring Chinamen into the United States,
Dahl vs. U. S., 234 F. 618.

To increase price of sugar, U. S. vs. Robinson, 266 F.
240; to bribe officer, Hardy vs. U. S., 269 F. 134, by ship-
ping port employees, etc., U. S. vs. Carlin, 259 F. 904; U.
S. vs. Union, 259 F. 907 ; to defraud doctors, Holsman vs.
U. S., 248 F. 193; to violate Espoinage Act, U. S. vs. Ault,

263 F. 800; U. S. vs. Listman, 263 F. 798; U. S. vs. Strong,
263 F. 789.

The following cases bear upon the necessity of a dis-
tinct allegation of overt act and of time, U. S., vs. Rogers,
226 F. 512; Tillinghast vs. Richards, 225 F. 226; Birdseye,
244 F. 972; Pettibone vs. U. S., 148 U. S; U. S. vs. Robin-
son, 266 F. 240.

It is not a variance because the conspiracy is laid in
one district and the overt act in another, since the prosecu-
tion mav be had in either, Bernstein vs U. S., 238 F. 923;
Harrington vs. U. S., 267 F. 97.

This statute will not protect against corrupt state elec-
tions, U. S. vs. Gradwell, 234 F. 446, Sup. Ct. Apr. 1917;
nor can a prosecution be had for defrauding the Panama
Railway, Salas vs. U. S., 234 F. 842.

The War Department is not a government department
under Keane vs. U. S., 272 F. 577.

366 Federal Criminal Law Procedure.

For accomplice testimony under this section see Mc-
Ginnis, vs. U. S., 256 F. 621.

The prosecution may be had where the overt act is com-
mitted, Easterday vs. McCarthy, 256 F. 651. A conspir-
acy indictment is insufficient when the conspiracy is not
fully discribed and statements as to the overt act will not
aid,' Anderson vs. IT. S., 260 F. 557.

The charging- of the statutory crime is ordinarily suffi-
cient if the words of the statute are used but there are
some important exceptions, Jelke vs. U. S., 255 F. 264.

The statement of one defendant is not admissible
against another after the completion of the conspiracy,
Feder vs. U. S., 257 F. 694.

The act of one is the act of all during conspiracy, U. S.
vs. Schenck, 253 F. 212.

For good definition of conspiracy see U. S. vs. McHugh,
253 F. 224.

A single count may allege a conspiracy to commit two
or more offenses and not be duplicitous, Frohwerk vs. U.
S., U. S. Sup. Ct. Mar. 1919.

The most difficult question that arises in the treatment
of conspiracies is the merger of the conspiracy into the
completed act. The mistake frequently made of using
the completed act, in the pleading, as an overt act, to es-
tablish the conspiracy, when the completed act makes an
entirely different offense of, perhaps, lesser grade.

The following authorities, carefully considered may be
of assistance; U. S. vs. Kissel, 173 F. 823; Grant vs. U. S.,
252 F. 693; McKnight vs. U. S., 252 F. 687; U. S. vs. Bopp,
237 F. 283; Bishop Criminal Law, Vol. 1, page 492; C. vs.
Kingsbury 5 Mass. 106; C. vs. Delaney, 1 Grant Pa. 224.

The confession of one conspirator against another is
admissible if the jury is properly instructed, Hagan vs.
U. S., 268 F. 344; U. S. vs. Freedman, 268 F. 655.

A confession which is not "voluntary" is not admis-
sible, U. S. vs. Kallas, 272 F. 743.

A prosecution may be brought, as heretofore stated,
where the conspiracy is formed or where the overt act is
committed, Grayson vs. U. S., 272 F. 554. For a definition
of conspiracy by the Supreme Court of the United States

Against Operations of Government. 367

see Duplex vs. Deering, 41 U. S. Sup. Ct. Rep. 173.

There can be no conspiracy when there is only one
criminal intent, there must be two or more; thus an officer
who seeks to entrap another would not be a basis, for a
conspiracy indictment, Yick vs. U. S., 240 F. 60.

When the offense is not proven letters written by one
are mere hearsay and inadmissible, Stager vs. U. S., 233
F. 510.

§ 182. Sufficiency of Description. — In Cling vs. United
States, 118 Federal, 538, the Circuit Court of Appeals for
the Fourth Circuit held that the offense intended to be
committed as the result of the conspiracy need not be de-
scribed as fully as would be required in an indictment in
which such matter was charged as a substantive crime.
To the same effect is United States vs. Stevens, 44 Fed-
eral, 132. In United States vs. Stamatopoulos, 164 Fed-
eral, 524, Judge Chatfield, in passing upon a demurrer,
said :

"The indictment sets forth a conspiracy to defraud the United
States, and it is unnecessary to allege either the consummation of
the fraud, or to include an allegation that the fraud could have been
accomplished unless detected. It is sufficient to show that the con-
spiracy so to do the act charged constituted a fraud upon the United
States."

§ 183. Venue. — The venue for the prosecution may be
laid in the District in which the overt act was committed,
and it does not matter where the conspiracy was formed
or the unlawful agreement entered into; and where the
offense has been commenced in one district and consum-
mated in another, the venue may be laid and the trial may
be had in either district.

Sufficient to Warrant ConvicUon. — If the indictment
alleges, in proper terms, the formation of the conspiracy
for either one of the inhibited purposes mentioned in the
statute, and then sets out the offense for which the con-
spiracy was formed with sufficient certainty to apprise
the defendant thereof, and then the proof shows that the
conspiracy existed as charged in the indictment, and that
if such conspiracy existed, the overt act charged was com-
mitted in furtherance of such conspiracy, and that the

368 Federal Criminal Law Procedure.

defendant was one of the conspirators, a case will have
been made out, both by allegation and proof. United
States vs. Cassidy, 67 Federal, 698; United States vs.
Newton, 52 Federal, 275.

§ 183a. Special Charge on Venue. — The defendant
must ask an affirmative charge on venue before error can
be laid when the general charge of the Court uses the
customary language with reference to the place of the
commission of the offense. Lipman vs. U. S., 219 Federal,
882.

§ 184. Illustrative Cases. — While the Courts have
held, as above cited, that a good conspiracy charge will be
one which alleges the accomplishment of the fraud or
fails to allege its accomplishment, so, also, they have held
that a conspiracy may be charged, though the indictment
charges the accomplishment. In Scott vs. United States,
165 Federal, 172, the Circuit Court of Appeals, for the
Fifth Circuit held that an indictment will lie for con-
spiracy to remove distilled spirits on which the tax had
not been paid, in violation of Section 3296, although it is
charged that the purpose of the conspiracy was accom-
plished.

In United States vs. Stevens, 44 Federal, 132, it was
held that a conspiracy may be entered into even when
the overt act constituting the criminal offense can only
be done by one of the parties to the conspiracy; as
where a census enumerator and another conspired to
make false certificates or fictitious returns. The same
sort of an offense was approved in the Ching case by a
Circuit Court of Appeals, 118 Federal, 538. So, also, a
conspiracy may be laid against a person not connected
with the bank for conspiring with the cashier to commit
one of the offenses described in Section 5209. U. S. vs.
Martin, 4 Cliff. (U. S.), 156. And in United States vs.
Boyer, 4 Dill., 407, the Court held that a conspiracy
could be charged against persons conspiring with a bank-
rupt to commit an offense thereunder, even if it could be
held that only the bankrupt could commit the offense
there charged with having agreed to violate. See also U.
S. vs. Swett, 2 Hask., 310, 28 Federal Cases No. 16427.

Against Operations of Government. 30'. >

In Johnson vs. United States, 158 Federal, 69, the Cir-
cuit Court of Appeals for the Fifth Circuit, it seems to
the writer, held contrary to the above views. In that
case, the bankrupt, his trustee, and one other, were in-
dicted for conspiring to conceal from the Trustee, one of
the indicted parties, assets of the bankrupt. There were
convictions. Upon appeal, the Court held that an indict-
ment will not lie under 5440, for a conspiracy to effect
the concealment by a bankrupt, of property, from his
trustee, where the trustee, is himself charged as one of the
conspirators and the averments of the indictment show
that there was in fact no concealment of property from
him and no purpose that there should be such conceal-
ment. In considering that case, the Court cited the case
where Lord Audley was convicted of rape upon his wife;
being present, aiding and abetting one of his minions to
perpetrate this monstrous crime, and for which this devil-
crazed nobleman was hung; but differentiated that case
from the one they were discussing, and said:

"The defect in the indictment is not that it charges a conspiracy by
three persons to commit an offense which only one of the three could
commit. That may not be a defect. The fatal defects is that it
charges Johnson, one of the alleged conspirators, with participation
in, and knowledge of, a transaction which could only be an offense
against the law when it was concealed from him."

In United States vs. Melfi, 118 Federal, 899, there was a
prosecution against conspirators to secure, illegally, nat-
uralization papers, but the Court held against the indict-
ment, not because such a conspiracy would not be unlaw-
ful, but because the indictment failed to allege sufficient
ingredients of the statute for the breaking of which the
conspiracy was formed.

In United States vs. Clark, 164 Federal, page 75, the
Court upheld a prosecution against an agent of a railroad
company and others for conspiring to issue interstate
freight passes in the name of the railroad to those not en-
titled thereto, under the provisions of the Hepburn Act,
June 29, 1906.

In United States vs. Lonabaugh, 158 Federal, 314, a
prosecution was sustained upon a conspiracy to induce

370 Federal Criminal Law Procedure.

the Land Department of the United States, by fraudulent
means, to dispose of public lands in a way not authorized
by the statute, and this even though the Government re-
ceived payment for the lands, and suffered no pecuniary
loss.

In United States vs. Haas et al, 163 Federal, 908, an in-
dictment was sustained which charged a confederated ef-
fort to deprive the national government of the right and
privilege of proper service in the Department of Agricul-
ture, by corrupting an employee of such department, and
inducing him to secretly furnish advance information of
crop conditions, contrary to the rules of the department,
and to issue false reports to the public as to such condi-
tions. The main offense in that case was laid under the
bribery statute, 5451, and the Court held that an Assistant
Statistician in the Department of Agriculture, in the per-
formance of the duties with which he was charged by the
rules of that department, acted for the United States in an
official function. This case was practically affirmed, and
the case of United States vs. Haas, 167 Federal, 211, over-
ruled, by the Supreme Court of the United States in Haas
vs. Henkle, February 21, 1910. The Supreme Court, in
passing directly upon the indictment, uses this language:

"These counts do not expressly charge that the conspiracy included
any direct pecuniary loss to the United States; but as it is averred
that the acquiring of the information and its intelligent computation,
with deductions, comparisons, and explanations, involved great ex-
pense, it is clear that practices of this kind would deprive these re-
ports of most of their value to the public, and degrade the Department
in general estimation, and that there would be a real financial loss.
But it is not essential that such a conspiracy should contemplate a
financial loss, or that one should result. The statute is broad enough
in its terms to include any conspiracy for the purpose of impairing,
obstructing, or defeating the lawful function of any Department of
the Government. Assuming, as we have, for it has not been challenged,
that this statistical side of the Department of Agriculture is the
exercise of a function within the purview of the Constituion, it must
follow that any conspiracy which is calculated to obstruct or impair
its efficiency and destroy the value of its operations and reports, as
fair, impartial, and reasonably accurate, would be to defraud the
United States, by depriving it of its lawful right and duty of pro-
mulgating or diffusing information so officially acquired in the way
and at the time required by law or Departmental regulation. That it

Against Operations of Government. 37]

is not essential to charge or prove an actual financial or poperty loss
to make a case under the statute, has been more than once ruled.
Hyde vs. Shine, 199 U. S., 62; U. S. vs. Keitel, 211 U. S., 370; Curley
vs. U. S., 130 Fed., 1; McGregor vs. U. S., 134 Fed., 195."

Iii United States vs. Hirsch, 100 U. S., 33, the Supreme
Court held that a conspiracy to defraud the United States
out of duties on imported merchandise is not a crime aris-
ing under the revenue laws, and is, therefore, barred by
the three years statute of limitations.

For other cases arising under the old section, see

United States vs. Dietrich, 126 Federal, 664.

Gantt vs. U. S., 108 Federal, page 61;

U. S. vs. Bradford, 148 Federal, 413;

U. S. vs. Mitchell, 141 Federal, 666;

Wright vs. United States, 108 Federal, 805 (This case
approves a general form of indictment) ; Lehman vs. U.
S., 127 Federal, 41; Conrad vs. U. S., 127 Federal, 798
(That was a conspiracy to violate Section 3995, or in other
words a conspiracy to knowingly and wilfully delay the
United States mail) ; Wan Din vs. United States, 135 Fed-
eral, 704, (The Court sets out the elements of the con-
spiracy); United States vs. Curley, 122 Federal, 738; af-
firmed in 130 Federal, page 2 (This was a conspiracy to
violate the Civil Service Examination Act) ; U. S. vs.
Richards, 149 Federal, 443. In Crawford vs. U. S., an
opinion rendered by the Supreme Court of the United
States, on February 1, 1909; sets forth the elements of a
conspiracy under this section. In in re Miller, 114 Fed-
eral, 963, there was a prosecution for conspiracy to return
one to peonage. See United States vs. Green, 115 Fed-
eral, 343, for conspiring to conceal assets in violation of
the bankrupt Act; United States vs. Goodsay, 164 Fed-
eral, 157; United States vs. Biggs, 157 Federal, 264;
United States vs. Brace, 149 Federal, 874. The case of
Bradford vs. United States, 129 Federal, page 49, was a
prosecution for conspiring to execute straw bail. In the
case of United States vs. Stevenson, decided by the Su-
preme Court of the United States in November, 1909, a
conviction for a conspiracy to violate the Immigration
Act was sustained.

372 Federal Criminal Law Procedure.

In Williamson vs. U. S., 207 IT. S., 425, 52 Law Ed.,
page 207, the Supreme Court reversed and remanded a
conviction of a Congressman for conspiring to suborn per-
jury, in proceedings to purchase public land, but held
among other things, that an indictment alleging a con-
spiracy to suborn perjury need not, with technical pre-
cision, state all the elements essential to the commission
of the crimes of subornation of perjury and of perjury,
and that the precise persons to be suborned, or the time
and place of such suborning need not be agreed upon in
the minds of the conspirators, in order to constitute the
crime of conspiracy to suborn perjury in proceedings for
the purchase of public land. U. S. vs. Railey, 173 Fed-
eral, 159; Richards vs. U. S., 175 Federal, 911; U. S. vs.
Kane, 23 Federal, 748; U. S. vs. Milner, 36 Federal, 89Q.
In United States vs. Keitel, 211 U. S., 370, the Supreme
Court held that a charge of conspiracy to defraud the
United States can be predicated on acts made criminal af-
ter the enactment of the statute. This case was reversed,
on some other minor points, United States vs. Keitel, 157
Federal, 396. In United States vs. Biggs, 211 U. S., which
was a writ of error by the United States from the sustain-
ing of a demurrer to an indictment brought for a con-
spiracy to defraud the United States of public lands, re-
ported in United States vs. Biggs, 157 Federal, 264, the
Supreme Court affirmed the decision of the lower Court,
and held that an indictment for conspiracy to defraud the
United States by improperly obtaining title to public
lands, will not lie under 5440, where the only acts charged
were permissible under the land laws. In other words,
the acts charged in the indictment appeared to be lawful
under the laws relating to such lands. United States vs.
Briton, 108 U. S., 192; Mackin vs. U. S., 117 U. S., 348; U.
S. vs. Hess, 124 U. S,, 483 ; in re Gov, 312 Federal, 794 ; 127
U. S., 731; U. S. vs. Perrin, 131 U. S., 55; U. S. vs. Barber,
140 U. S., 177 ; Pettibone vs. U. S., 148 U. S., 197 ; ex parte
Lennon, 150 IT. S., 393; Dill vs. U. S., 152 U. S., 539; Ban-
non vs. U. S., 156 U. S., 464; Stokes vs. U. S., 157 U. S.,
187; France vs. U. S., 164 U. S., 696. In the case of Craw-
ford vs. U. S., 212 U. S., page 183, the Supreme Court sus-

AcxAinst Operations of Government. 37:!

tained the sufficiency of the indictment, but reversed the
case on other points. The prosecution grew out of a con-
spiracy between the defendant and a Government official.
by which the Government would be defrauded by means
of a contract between the Postal Device and Lock Com-
pany, a corporation, and the Post-office Department of
the United States, by which the company was to furnish
certain satchels to the Department for the use of the let-
ter carriers in the free delivery system of the United
States. U. S. vs. Bridgeman, 140 Federal, 577; U. S. vs.
Marx, 122 Federal, 964; U. S. vs. McKinley, 126 Federal,
242; U. S. vs. Wilson, 60 Federal, 890; U. S. vs. Debs, 63
Federal, 436; Huntington vs. U. S., 175 Federal, 950.

§ 184a. Illustrative Cases Continued. — Scheme to se-
cure reduced postage rate for newspapers may be subject
of but when it is alleged that the rate sought to be pro-
cured is no less than a regular rate then authorized for
second class matter, no offense is charged. U. S. vs. At-
lanta Journal Co. 185 Federal, 656, affirmed in same case,
210 Federal, 275. A conspiracy to transport explosives
in violation of Section 232, interstate shipment of ex-
plosives, is a violation of this section. Ryan vs. U. S., 216
Federal, 13.

A conspiracy to secure for a postmaster a larger salary
by purchasing at his office large quantities of postage
stamps for use outside of territory served by such office
was not a conspiracy to defraud the United States, since
as the statute makes the postmaster's salary dependent
on the gross receipts, without excluding receipts from
such sales, the postmaster was legally entitled to the
salary which it was the object of the alleged conspiracy to
secure, and a conspiracy to obtain by improper methods
what one is legally entitled to is not punishable as a con-
spiracy to defraud. U. S. vs. Foster, 211 Federal, 206.

Woman who is victim in white slave violation may also
be conspirator under this section. U. S. vs. Holte, 236 U.
S., 140. Agreement to defraud Government through pur-
chases for the commissary department. U. S. vs. Burke,
218 Federal, 83. Conspiracy to defraud the United States
by collusive bids for coal, Houston vs. U. S., 217 Federal,

374 Federal Criminal Law Procedure.

852. A conspiracy to defraud of customs dues. U. S. vs.
Sherlin, 212 Federal, 343. Conspiracy to liberate pris-
oner, ex parte Lyman, 202 Federal, 303. See also IT. S., vs.
Munday, 186 Federal, 375. Lipman vs. U. S., 219 Fed-
eral, 882. Conspiracy to conceal property from bank-
ruptcy trustee, Radin vs. U. S., 189 Federal, 568.

§ 185. Bribery of United States Officer.— Section 5451
of the old statutes is re-enacted into Section 39 of the
new Code in the following words:

"Whoever shall promise, offer, or give, or cause or procure to be
promised, offered, or given, any money or other thing of value, or
shall make or tender any contract, undertaking, obligation, gratuity,
or security for the payment of money, or for the delivery or con-
veyance of anything of value, to any officer of the United States, or
to any person acting for or on behalf of the United States in any
official function, under or by authority of any department or office
of the Government thereof, or to any officer or person acting for or
on behalf of either House of Congress, or of any Committee of either
House, or both Houses thereof, with intent to influence his decision
or action on any question, matter, cause, or proceeding which may
at any time be pending, or which may by law be brought before him
in his official capacity, or in his place of trust or profit, or with intent
to influence him to commit, or aid in committing, or to collude in, or
allow, any fraud, or make opportunity for the commission of any
fraud, on the United States, or to induce him to do or omit to do
any act in violation of his lawful duty, shall be fined not more than
three times the amount of money or value of the thing so offered,
promised, given, made, or tendered, or caused or procured to be so offer-
ed, promised, given, made, or tendered, and imprisoned not more than
three years,"

One must be a Federal official or some other person per-
forming an official function, and he must be offered some
gratuity or thing of value to assist in the defrauding of
the United States in some manner, or to fail to perform
his lawful duty, before he can be guilty of the crime al-
leged in the foregoing section. For instance, in the case
of the United States vs. Gibson, 47 Federal, 833, the Court
quashed an indictment under this section, which set out in
substance that the defendant had offered a bribe to an in-
ternal revenue officer to set fire to a distillery within the
limits of a State. He very properly held that this was
the offering of a bribe to perform an act which was not in

Against Operations of Government. 375

any sense within the official function of the revenue offi-
cer, and, therefore, not an offense under the section. The
crime of arson, of course, unless committed upon some
Government reservation, is not cognizable in the United
States Courts, and is not a United States offense. So,
also, in the case of United States vs. Boyer, it was deter-
mined that an Inspector of the Agriculture Department of
the United States, charged with the enforcement of un-
constitutional regulations, and offered a bribe not to per-
form such regulations, the offering of such a bribe was not
an offense under 5451, for the reason that the Inspector, in
the failure to perform an unconstitutional duty, would
not in any sense, defraud the United States, nor fail to
perform an act which it was his lawful duty to perform.
In United States vs. Kessel, 62 Federal, 57, and United
States vs. Van Leuven, 62 Federal, 62, District Judge
Shiras, in passing upon old Section 5501, determined that
a member of a Board of Examining Surgeons is a person
acting in behalf of the United States in an official capaci-
ty, and, therefore, subject to an indictment for receiving
a bribe. The same reasoning adopted by the judge in
those two cases will apply to offenses under Section 5451.

The case of United States vs. Ingham, 97 Federal, 935,
was a prosecution based upon an attempt to bribe a Se-
cret Service operative employed by the Secretary of the
Treasury; and in passing directly upon the question as
to whether or not such operative was an officer of the
United States within the necessary meaning of 5451, the
Court held that he was not such an officer, but that the
prosecution would lie under the phrase in the statute,
"official function," and held that official function, as
spoken of in the statute is not necessarily a function be-
longing to an office held by a person acting on behalf of
the United States. It may also be a function belonging
to an office held by his superior which function has been
committed to the subordinate, whether he be also an of-
ficer or a mere employee for the purpose of executing the
function.

In the case of United States vs. Green, 136 Federal,
618, the doctrine was announced that the giving of a

376 Federal, Criminal Law Procedure.

check as a bribe will not necessarily be an offense under
the statute, unless there be sufficient allegations in the
indictment to show that the check was good, and that
the bank upon which it was drawn was a going concern,
and that the same would be honored, and other allega-
tions to show that as a matter of fact the check was valu-
able. A bank check not thus defined in the bill of in-
dictment is not an obligation for the payment of money,
within the legal meaning of such term, as used in the
section, and the tendering by a person of his personal
check, drawn on a bank, and payable to an officer of the
United States to such officer, with intent thereby to affect
his official action, does not constitute the crime of bribery,
since the check made and delivered for such illegal pur-
pose is void and not within any of the classes of instru-
ments enumerated in the statute. In the case of Vernon
vs. U. S., 146 Federal, 121, the Circuit Court of Appeals
for the Eighth Circuit sets out a count of an indictment
under this section. That was a prosecution for an alleg-
ed attempt to bribe an agent of the Treasury Department,
charged with the location of public buildings. The evi-
dence, however, was held to be insufficient by the Court
of Appeals.

The Supreme Court, in the case of Palliser vs. United
States 136 U. S., 268; 34 Law Ed., 514, held that a letter
written and sent from New York to a postmaster in Con-
necticut, asking him to put postage stamps on circulars
and send them out at the rate of fifty to one hundred
daily, and promising him that if he would do so, the writ-
er of the letter would remit to him the price of stamps,
was a tender of a contract for the payment of money
to induce him to sell postage stamps for credi+ in viola-
tion of his lawful duty, and contrary to Section 5451:
and such an offer for an unlawful sale of postage stamps
on credit is not the less within the statute because the
postmaster's commission on the sale would be no greater
than upon a lawful sale for cash.

§ 185a. Officer. — An immigrant inspector is an officer
within the meaning of Section 39. Becharias vs. U. S.,
208 Federal, 143.

Against Operations of Government. 377

Sec. 185 b. Bribery etc., Continued.

A porter of a railway train while under government
control is not and "officer", Kricliman vs. U. S., 41 Sup.
Ct. Rep. 514, reversing U. S. vs. Kricliman in 256 F. 974,

§ 186. Unlawfully Taking or Using Papers Relating
to Claims.— Section 40 reads as follows:

"Sec. 40. Whoever shall take and carry away, without authority
from the United States, from the place where it has been filed, lodged,
or deposited or where it may for the time being actually be kept by au-
thority of the United States, any certificate, affidavit written statement
of facts, power of attorney, receipt, voucher, assignment, or other docu-
ment, record, file, or paper, prepared, fitted, or intended to be used or
presented in order to procure the payment of money from or by the
United States, or any officer or agent thereof, or the allowance or
payment of the whole or any part of any claim, account, or demand
against the United States, whether the same has or has not already
been so used or presented, and whether such claim, account, or de-
mand, or any part thereof, has or has not already been allowed or
paid; or whoever shall present, use, or attempt to use, any such docu-
ment, record, file, or paper so taken and carried away, in order to
procure the payment of any money from or by the United States, or
any officer or agent thereof, or the allowance or payment of the
whole or any part of any claim, account, or demand against the
United States, shall be fined not more than five thousand dollars, or
imprisoned not more than ten years, or both."

§ 187. Persons Interested Not to Act as Agents of the
Government. — Section 1783 of the old statutes becomes
Section 41 of the new Code in the following words:

"Sec. 41. No officer or agent of any corporation, joint stock com-
pany, or association, and no member or agent of any firm, or person
directly or indirectly interested in the pecuniary profits or contracts
of such corporation, joint stock company, association, or firm, shall
be employed or shall act as an officer or agent of the United States
for the transaction of business with such corporation, joint stock
company, association, or firm. Whoever shall violate the provision
of this section shall be fined not more than two thousand dollars
and imprisoned not more than two years."

Old Section 1783 applied only to officers of "banking
or other commercial" corporations, but in the new statute
these words have been omitted, so that the section, as
it now stands is applicable to the officers of any corpora-
tion. It has likewise been made more comprehensive,

378 Federal Criminal Law Procedure.

in that it now covers officers and agents of any " joint
stock company or association."

§ 188. Enticing Desertions from the Military or Naval
Service. — Section 42 of the new Code re-enacts the sub-
stantial provisions of Sections 1553 and 5455 of the old
Code in the following words:

"Sec. 42. Whoever shall entice or procure, or attempt or endeavor
to entice or procure, any soldier in the military service, or any sea-
man or other person in the naval service of the United States, or
who has been recruited for such service, to desert therefrom, or
shall aid any such soldier, seaman, or other person in deserting or
in attempting to desert from such service; or whoever shall harbor,
conceal, protect, or assist any such soldier, seaman, or other person
who may have deserted from such service, knowing him to have
deserted therefrom, or shall refuse to give up and deliver such sol-
dier, seaman, or other person on the demand of any officer authorized
to receive him, shall be imprisoned not more than tliree years and
fined not more than two thousand dollars."

The only substantial addition is the word "seaman,"
which the old statutes did not include. In the case of
Kurtz vs. Moffitt, 115 U. S., 487, the Supreme Court held
that a deserter from the United States army could not be
arrested by a police officer or private citizen without war-
rant or authority from the United States.

Sec. 188 a. Enticing Desertions Continued.

"Harbor" means some physicial act, Firpo vs. U. S.,
261 F. 850.

§ 189. Enticing Away Workman. — Section 43 of the
new Code re-enacts the provisions of Sections 1668 of
the old statutes, adding thereto the word "artificer"
instead of the word "armorer," and is in the following
words:

"Sec. 43. Whoever shall procure or entice any artificer or work-
man retained or employed in any arsenal or armory, to depart from
the same during the continuance of his engagement, or to avoid or
break his contract with the United States; or whoever, after due
notice of the engagement of such workman or artificer, during the
continuance of such engagement, shall retain, hire, or in anywise
employ, harbor, or conceal such artificer or workman, shall t»e fined
not more than fifty dollars, or imprisoned not more than three
months, or both."

Against Operations of Government. 379

§ 190. Injuries to Fortifications, Harbor Defenses,
Etc.— Section 44 of the new Code re-enacts the meat of the
Act of July 7, 1898; Second Supplement, 885, and sim-
plifies the original Act by omitting the words "wantonly
or maliciously" before "trespass," since authorities are
a unit that the word "wilful" will include any wanton
or malicious act, and is in the following words:

"Sec. 44. Whoever shall wilfully trespass upon, injure, or destroy
any of the works or property or material of any submarine mine or
torpedo, or fortification or harbor-defense system owned or con-
structed or in process of construction by the United States, or shall
wilfully interfere with the operation or use of any such submarine
mine, tropedo, fortification, or harbor-defense system, shall be fined
not more than five thousand dollars, or imprisoned not more than
five years, or both."

Sec. 190 a. Injuries to Fortifications, etc.,
Section 44 has been greatly enlarged upon by the Acts
of May 22, 1917, and of March 4, 1917. See page 1683,
1918 Complied Statutes, Sec. 10208, the punishment con-
tinues the same but the protection extends to all for-
tifications and harbors and defenses, including the canal
zone, and of any submarine mine or torpedo or harbor-
defense system as well as any order or regulation of the
President governing persons or vessels within the limits
of defensive sea areas.

§ 191. Unlawfully Entering Upon Military Reserva-
tion, Fort, Etc. — Section 45 of the new Code is an en-
tirely new Act, and is in the following words:

"Sec. 45. Whoever shall go upon any military reservation, -army
post, fort, or arsenal, for any purpose prohibited by law or military
regulation made in pursuance of law, or whoever shall re-enter or be
found within any such reservation, post, fort, or arsenal, after having
been removed therefrom or ordered not to re-enter by any officer or
person in command or charge thereof, shall be fined not more than
five hundred dollars, or imprisoned not more than six months, or

both."

§ 192. Robbery or Larceny of Personal Property of
the United States.— Old Section 5456 is re-enacted into
new Section 46, in the following words:

380 Federal Criminal Law Procedure,

"Sec. 46. Whoever shall rob another of any kind or description
of personal property belonging to the United States, or shall felon-
iously take and carry away the same, shall be fined not more than
five thousand dollars, or imprisoned not more than ten years, or
both."

In the case of Jolly vs. United States, 170 Federal, 402;
42 Law Ed., 185, the Supreme Court held that there are
two distinct offenses mentioned in the statute: one is
the offense of robbery, and the other is the crime of
feloniously taking and carrying away any kind or dis-
cription of personal property belonging to the United
States. This is a distinct and separate offense from that
of robbery. "If the statute required the taking to be
forcible in all cases, the language providing against the
felonious taking and carrying away of the personal prop-
erty of the United States would be surplusage, the forci-
ble taking being already implied and included in the
use of the word 'rob'; but in addition to robbery, the
offense of feloniously (not forcibly) taking the personal
property of the United States, is created."

Postage stamps which have not been issued or sold,
and are in the possession of the Government, are per-
sonal property belonging to the United States within
the meaning of this section, which makes it a crime to
feloniously take and carry away such property.

Under authority of United States vs. Jones, 69 Federal,
973, a count under this statute may be joined with a
count under another statute for a separate offense, when
the offense is the same transaction. In that case, Judge
Hawley held that it was immaterial that one might be
classed as larceny and the other as embezzlement, or
that the punishment was different. That case also gives
a form of indictment.

§ 193. Embezzling, Stealing, Etc., Public Property. —
New Section 47 re-enacts a part of the Act of March 3,
1875; First Supplement, page 88, in the following words:

"Sec. 47. Whoever shall embezzle, steal, or purloin any money,
property, record, voucher, or valuable thing whatever, of the moneys,
goods, chatties, records, or property of the United States, shall be
fined not more than five thousand dollars, or imprisoned not more
than five years, or both."

Against Operations of Government. 381

In drafting indictments for the various offenses creat-
ed by this section, to wit, the offenses of embezzlement,
larceny, and purloining, it is believed that it will be
necessary to set out the elements of these particular of-
fenses as understood in the Common Law, for the reason
that the statute itself does not specify just what acts
shall constitute the offense therein denominated. The
cases of Moore vs. United States, 160 U. S., 268; 40 Law
Ed., 422, and Faust vs. United States, 163 U. S., 452; 41
Law Ed., page 224, will be instructive in determining the
principles that must be adhered to in setting out offenses
under this statute. For the crime of embezzlement, of
course, the indictment must allege that the sum alleged
to have been embezzled came into the possession of the
defendant in the capacity in which he was an employee
of the United States; that is, as assistant, clerk, or em-
ployee in whatever department of the Government he
served. Want of consent of the postmaster to embezzle-
ment of money-order funds by his assistant is not nec-
essary to make the latter liable for the crime, under the
authority of Faust vs. United States, cited supra.

It was held in Dimmick vs. United States, 135 Federal,
257, that an indictment which charged the defendant
with stealing money "belonging to" the United States
sufficiently averred the ownership of the property stolen.

Of course, it is necessary to allege specific intent before
the offenses here denominated shall be properly plead.
As was well said in United States vs. De Groat, 30 Fed-
eral, 764, the Federal Criminal Jurisprudence is entire-
ly destitute of any substratum of a Common Law of
crimes and misdemeanors upon which to draw for sup-
plying elements of the offense, and the Courts look only
at the statute, using the Common Law, if necessary, to
furnish a definition of the terms used, but never any in-
gredient of the offense. That case will be recalled as an
indictment for having stolen papers which were public
records, but the facts showed that they were stolen from
a barn where they were stored, under the belief that they
were old papers, and without knowledge of the fact that

382 Federal Criminal Law Procedure.

they were public records, and the Court ordered a verdict
of not guilty.

Sec. 193 a. Embezzling, Stealing, etc., Public Proper-
ty, Continued.

Section 47 of the Code is in addition to Sec. 36 which
we have just discovered was inoperative Edwards vs.
U. S., 266 F. 848.

The indictment must charge that the property was
United States property and it is insufficient to say that it
was requisitioned, Thompson vs. U. S., 256 F. 616.

Under this section the court has held that a prosecu-
tion may be had for theft of an interstate shipment when
the railroads were in the hands of the government, Kam-
beitz vs. U. S., 262 F. 378.

For illustrative cases see Schell vs. U. S., 261 F. 593;
Clark vs. U. S., 268 F. 329, this last case is for theft of a
mail carrier's check.

§ 194. Receivers, Etc., of Stolen Public Property. —
Section 48 of the new Code enacts the substantial fea-
tures of the Act of March 3, 1875; First Supplement, 88,
and is in the following words:

"Sec. 48. Whoever shall receive, conceal, or aid in concealing or
shall have or retain in his possession with intent to convert to his
own use or gain, any money, property, record, voucher, or valuable
thing whatever, of the moneys, goods, chattels, records, or property
of the United States, which has theretofore been embezzled, stolen
or purloined by any other person, knowing the same to have been so
embezzled, stolen, or purloined, shall be fined not more than five thous-
and dollars, or imprisoned not more than five years, or both; and
such person may be tried either before or after the conviction of the
principal offender."

This statute leaves out that provision of the old statute
which made the judgment of conviction of the principal
conclusive evidence in the prosecution against such re-
ceiver. That provision was declared to be unconstitu-
tional by the Supreme Court in the case of Kirby vs.
United States, 174 U. S., 47; Book 43 Law Ed., page 890.
In that case, the Supreme Court held that the provision
that the judgment of conviction against the principal
felons shall be evidence in the prosecution against the
receiver of the property of the United States alleged to

Against Operations of Government. 383

have been embezzled, stolen, or purloined, is in violation
of the clause of the United States Constitution that in
criminal prosecutions the accused shall be confronted
with the witnesses against him.

Allegations of Ownership.— Under the authority of the
Kirby case, cited above, it is sufficient if an indictment
for receiving stolen property of the United States alleges
its ownership when it was feloniously received by the
accused, by alleging that the property was that of the
United States when stolen, and was stolen two days
previously to its being received by the defendant, and
that he received it knowing that it had been stolen. It
was further held in that case that the indictment need
not state from whom the accused received it or need not
state that the name of such person is unknown to the
grand jurors.

An indictment under this section would be entirely in-
sufficient that did not allege knowledge on the part of the
receiver, and the words "unlawfully, knowingly, and wil-
fully" should be used.

§ 195. Timber Depredations on Public Lands.— The
Act of August 4, 1892, 27 Statutes at Large, 348, Second
Supplement, 65, extended the Act of June 3, 1878, 20
Statute at Large, 90, First Supplement, 168, to include
all the public land States, and these Acts are substan-
tially re-enacted into new Section 49, in the following
words:

"Sec. 49. Whoever shall cut, or cause or procure to be cut, or shall
wantonly destroy, or cause to be wantonly destroyed, any timber
growing on the public lands of the United States; or whoever shall
remove, or cause to be removed, any timber from said public lands,
with intent to export or to dispose of the same; or whoever, being
the owner, master, or consignee of any vessel, or the owner, director,
or agent of any railroad, shall knowingly transport any timber so
cut or removed from said lands, or lumber manufactured therefrom,
shall be fined not more than one thousand dollars, or imprisoned not
more than one year, or both. Nothing in this section shall prevent
any miner or agriculturalist from clearing his land in the ordinary
working of his mining claim, or in the preparation of his farm for
tillage, or from taking the timber necessary to support his improve-
ments, or the taking of timber for the use of the United States. And
nothing in this section shall interfere with or take away any right

384 Federal Criminal Law Procedure.

or privilege under any existing law of the United States to cut or
remove timber from any public lands."

Some of the cases decided by the Courts under some of
the timber statutes of the old Code will be of assistance in
determining some of the elements of this new section.
For instance, in United States vs. Stores, 14 Federal, 824,
it was determined that the term "timber," as used in Sec-
tion 2461 of the Revised Statutes, applies not alone to
large trees fit for house or ship-building, but includes
trees of any size, of a character or sort that may be used
in any kind of manufacture, or the construction of any
article; and it was also there determined that the using
of trees for fire-wood or burning into charcoal was no
justification for the cutting.

In United States vs. Garretson, 42 Federal, 22, the Dis-
trict Judge held, on demurrer, that the general public
domain is open to private entry, and lands cannot be said
to be reserved for such entry. The lands reserved are
thus severed from the mass of public lands, and appro-
priated for Government purposes.

In a prosecution under Old Section 5388, as amended
by the Act of June 4, 1888, which forbade the cutting or
wanton destruction of timber upon military or Indian
Reservation, the Court, in the case of the United States
vs. Konkapot, 43 Federal, 64, held that that statute did
not apply to one who removed and used for building
purposes timber which had been cut on an Indian Re-
servation by another person without his aid or encourage-
ment. Of course, the present section not only covers the
cutting aand causing or procuring to be cut, or wanton
destruction, but also removal of any timber from such
public lands.

Intent. — Prosecutions under this section should include
the allegation of knowledge and wilfulness, and a depre-
dation by mistake, it is thought, would not be an offense;
that is, for one who got upon the public domain thinking
that he was upon his own property. When, however, he
has knowledge that it is Government lands, on the au-
thority of Taylor vs. United States, 113 Federal, which
was an opinion by the Circuit Court of Appeals for the

Against Operations of Government. 385

Eighth Circuit, he would not be protected by a general
custom in that particular locality, which was known to
the General Land Office, of entering on land and cutting
the timber therefrom before the patent was obtained: nor
would the defendant be protected for unlawfully cutting
timber on public land by the fact that he acted in ac-
cordance with a general custom, nor by the fact that
prior to the time he unlawfully cut timber he endeavored
to ascertain whether the land was surveved, and had also
notified a Special Agent of the Government that he was
cutting the timber, and was not warned off for three
weeks. None of these facts, says the Court, in that case,
are evidence of an honest intent. It was also determined
in that case that an occupant of a mineral claim, who
has applied for a patent before the purchase price is
paid, and before he receives a certificate, has no right
to cut the timber on such claim with the intent to export
or remove the same, and a license from him to so cut the
timber gives no protection to the licensee as against the
Government.

Indictment. — In Morgan vs. United States, 148 Fed-
eral, 189, the Circuit Court of Appeals for the Eighth Cir-
cuit, held that in a prosecution for cutting timber from
the public domain, the defendant was not prejudiced by
the fact that the indictment charged that he cut the tim-
ber with intent unlawfully to export and with intent to
dispose of the same, and that a conviction could not be
set aside because of such duplicity, since section 1025 pro-
vided that no indictment shall be deemed insufficient or
the proceedings under it affected, by any defect in mat-
ter of form, which does not tend to prejudice the defend-
ant.

Sec. 195 a. Timber Depredations on Public Lands,
Continued.

A mistaken belief may excuse, U. S. vs. Hammond, 246
F. 40.

§ 196. Timber, Etc., Depredations on Indian and
Other Reservations. — Section 5388 of the old statutes,
and the Acts of March 3, 1875, First Supplement, 91, and

886 Federal Criminal Law Procedure.

the Fourth of June, 1888, 4 Supplement, 588, are included
in substance in new Section 50, which reads as follows:

"Sec. 50. Whoever shall unlawfully cut, or aid in unlawfully cut-
ting, or shall wantonly injure or destroy, or procure to be wantonly
injured or destroyed, any tree, growing standing, or being upon any
land of the United States which, in pursuance of law, has been re-
served or purchased by the United States for any public use, or upon
any Indian Reservation, or lands belonging to or occupied by any
tribe of Indians under the authority of the United States, shall bo
fined not more than five hundred dollars, or imprisoned not more
than one year, or both."

In the case of United States vs. Pine River Logging
and Improvement Company, 89 Federal, 907, the Circuit
Court of Appeals for the Eighth Circuit announced the
doctrine that the title to the timber growing or standing
on Indian Reservations is in the United States, and in the
absence of legislative authority, Indians have no right to
cut or dispose of it; and where an Indian made a con-
tract with a purchaser to cut and deliver to such purchas-
er a certain quantity of timber, "more or less, or about,"
to be taken from the dead timber on a reservation, which
contract to sell was permitted by an Act of Congress
empowering the President, in his discretion, to authorize
certain sales, such contract would be limited to the
amount stated, and the fact that the purchaser had paid
for a large quantity, delivered and received, in excess
of that stated in the contract, did not give him title there-
to, and it was no defense to a suit for its recovery by
the Government.

In that suit it was also determined that a Government
agent could not legalize a trespass committed by the cut-
ting of living trees in violation of the statute, by agree-
ing, after they were cut and had thus become dead tim-
ber, that they might pass under a contract, and such an
agreement would not estop the Government from re-
covering the value of such trees.

§ 197. Boxing, Etc., Timber on Public Lands for Tur-
pentine, Etc— The Act of June 4, 1906, 34 Statute at
Large, 208, is practically re-enacted into new Section 51:

Against Operations of Government. 387

"Sec. 51. Whoever shall cut, chip, chop, or box any tree upon any
lands belonging to the United States, or upon any lands covered by
or embraced in any unperfected settlement, application, filing, entry,
selection, or location, made under any law of the United States, for
the purpose of obtaining from such tree any pitch, turpentine, or other
substance, or shall knowingly encourage, cause, procure, or aid in the
cutting, chipping, chopping, or boxing of any such tree, or shall buy,
trade for, or in any manner acquire any pitch, turpentine, or other
substance, or any article or commodity made from any such pitch,
turpentine, or other substance, when he has knowledge that the same
has been so unlawfully obtained from such trees, shall be fined not
more than five hundred dollars, or imprisoned not more than one
year, or both."

This statute became necessary t// reason of the depre
dations which the Courts held were not violations of any
existing statutes. In United States vs. Garretson, 42
Federal, 22, the Court held that Section 5388 of the old
Statute, making the wanton destruction of timber on
lands reserved for public uses a crime, did not cover tur-
pentine boxing or wanton destruction of timber on lands
open for pre-emption, homestead, and cash entries. So
also, to the same effect was the case of Bryant vs. United
States, 105 U. S., 941, where the Circuit Court of Appeals
for the Fifth Circuit held that old Section 2461, which
prohibited the cutting or removing of oak trees or other
timber from the public lands of the United States, with
intent to export, dispose of, use, or employ, the trees
or timber for any purpose except for the use of the navy,
was not violated by boxing pine trees on public lands for
the purpose of the manufacture of turpentine, since the
same was not a cutting of trees within the meaning of
the statute. The present statute, however, inhibits the
cutting, chipping, chopping, or boxing for the purposes
therein denounced. An indictment, of course, should
contain the words "unlawful, wilful, and knowing.'1

§ 198. Setting Fire to Timber on Public Lands. — New
Section 52, which incorporates the salient features of the
Act of the 24th of February, 1897; Second Supplement,
562, and the Act of May 5, 1900, Second Supplement,
1163, is in the following words:

388 Federal Criminal Law Procedure.

"Sec. 52. Whoever shall wilfully set on fire, or cause to be set on
fire, any timber, underbrush, or grass upon the public domain, or
shall leave or suffer fire to burn unattended near any timber or other
inflammable material, shall be fined not more than five thousand dol-
lars, or imprisoned not more than two years, or both."

§ 199. Failing to Extinguish Fires. — Section 53 of the
new Code is made from a part of the Acts of which 52
was constructed, and reads as follows:

"Sec. 53. Whoever shall wilfully set on fire, or cause to be set on
fire, any timber, underbrush, or grass upon the public domain, or shall
leave or suffer fire to burn unattended near any timber, or other in-
flammable material, shall be fined not more than five thousand dol-
lars, or imprisoned not more than two years, or both."

The fines arising from Sections 52 and 53 are to be paid
into the Public School Fund of the county in which the
lands where the offense was committed are situated, and
this is provided by Section 54 of the new Code.

§ 200. Breaking Fence or Gate Enclosing Reserve
Lands, or Driving or Permitting Live Stock to Enter
Upon. — Section 56 of the new Code reads as follows :

"Sec. 56. Whoever shall knowingly and unlawfully break, open,
or destroy any gate, fence, hedge, or wall inclosing any lands of the
United States, which, in pursuance of any law, have been reserved or
purchased by the United States for any public use; or whoever shall
drive cattle, horses, hogs, or other live stock upon any such lands,
for the purpose of destroying the grass or trees on said lands, or
where they may destroy the said grass or trees; or whoever shall
knowingly permit his cattle, horses, hogs, or other live stock, to en-
ter through any such inclosure upon any such lands of the United
States, where such cattle, horses, hogs, or other live stock may or can
destroy the grass or trees or other property of the United States on
the said lands, shall be fined not more than five hundred dollars, or
imprisoned not more than one year, or both; Provided, That nothing
in this section shall be construed to apply to unreserved public
lands."

§ 201. Injuring or Removing Posts or Monuments.
Section 57 the new Code is as follows:

"Sec. 57. Whoever shall wilfully destroy, deface, change, or re-
move to another place any section corner, quarter-section corner, or
meander post, on any Government line of survey, or shall wilfully

Against Operations of Government. 389

cut down any witness trees or any tree blazed to mark the line of a
Government survey, or shall wilfully deface, change, or remove any
monument or bench mark of any Government, survey, shall be fined
not more than two hundred and fifty dollars, or imprisoned not more
than six months, or both."

§ 202. Interrupting Service.— Section 58 of the new
Code reads in the following words, and takes the place of
old Section 2412:

"Sec. 58. Whoever in any manner, by threats or force, shall in
terrupt, hinder, or prevent the surveying of the public lands, or of
any private land claim which has been or may be confirmed by the
United States, by the persons authorized to survey the same, in con-
formity with the instructions of the Commissioner of the General
Land Office, shall be fined not more than three thousand dollars and
imprisoned not more than three years."

§ 203. Agreement to Prevent Bids at Sale of Lands.
— Old Section 2373 becomes new Section 59, which is in
the following words:

"Sec. 59. Whoever, before or at the time of the public sale of any
of the lands of the United States, shall bargain, contract, or agree,
or attempt to bargain, contract, or agree with any other person, that
the last-named person shall not bid upon or purchase the land so
offered for sale, or any parcel thereof; or whoever by intimidation,
combination, or unfair management shall hinder or prevent, or at-
tempt to hinder or prevent, any person from bidding upon or pur
chasing any tract of land so offered for sale, shall be fined not more
than one thousand dollars, or imprisoned not more than two years,
or both."

§ 204. Injuries to United States Telegraph, Etc.,
Lines. — The Act of the twenty-third of June, 1874, 18
Statute at Large, 250, First Supplement, 46, did not in-
clude telephone and cable lines and systems, but Section
60 of the new Code, in the following words, does:

"Sec. 60. Whoever shall wilfully or maliciously injure or destroy
any of the works, property, or material of any telegraph, telephone,
or cable line, or system, operated or controlled by the United States,
whether constructed, or in process of construction, or shall wilfully
or maliciously interfere in any way with the working or use of any
such line, or system, or shall wilfully or maliciously obstruct, hinder,
or delay the transmission of an communication over any such line.

390 Federal Criminal Law Procedure.

or system, shall be fined not more than one thousand dollars, or im-
prisoned not more than three years, or both."

§ 205. Counterfeiting Weather Forecasts. — All of the
salient features of the Act of August 8, 1894, 28 Statute at
Large, 274; Second Supplement, 233; the Act of March
2, 1895, 28 Statute at Large, 737; Second Supplement,
406; and the Act of April 25, 1896, 29 Statute at Large,
108, Second Supplement, 459, are re-enacted in the new
Section 61, which reads as follows:

"Sec. 61. Whoever shall knowingly issue or publish any counter-
feit weather forecast or warning of weather conditions falsely re-
presenting such forecast or warning to have been issued or published
by the Weather Bureau, United States Signal Service, or other branch
of the Government service, shall be fined not more than five hundred
dollars, or imprisoned not more than ninety days, or both."

§ 206. Interfering with Employees of Bureau of Ani-
mal Industry.— The Act of March 3, 1905, 33 Statute at
Large, 1265, is re-enacted, with few unimportant changes,
in Section 62 in the following words:

"Sec. 62. Whoever shall forcibly assault, resist, oppose, prevent,
impede, or interfere with any officer or employee of the Bureau of
Animal Industry of the Department of Agriculture in the execution
of his duties, or on account of the execution of his duties, shall be
fined not more than one thousand dollars, or imprisoned not more
than one year, or both; and whoever shall use any deadly or dan-
gerous weapon in resisting any officer or employee of the Bureau of
Animal Industry of the Department of Agriculture in the execution
of his duties, with intent to commit a bodily injury upon him or to
deter or prevent him from discharging his duties or on account of the
performance of his duties, shall be fined not more than one thousand
dollars, or imprisoned not more than five years, or both."

§ 207. Forgery of Certificate of Entry.— Section 63
of the new Code re-enacts the substantial provisions of
old Section 5417, in the following words:

"Sec. 63. Whoever shall forge, counterfeit, or falsely alter any
certificate of entry made or required to be made in pursuance of law
by any officer of the customs, or shall use any such forged, counter-
feited, or falsely altered certificate, knowing the same to be forged,
counterfeited, or falsely altered, shall be fined not more than ten
thousand dollars and imprisoned not more than three years."

Against Operations of Government. 39J

§ 208. Concealment or Destruction of Invoices, Etc.
—Old Section 5443 is re-enacted into Section 64 in the
following words:

"Sec. 64. Whoever shall wilfully conceal or destroy any invoice,
book, or paper, relating to any merchandise liable to duty, which has
been or may be imported into the United States from any foreign
port or country, after an inspection thereof has been demanded by
the collector of any collection district, or shall at any time conceal
or destroy any such invoice, book, or paper for the purpose of sup-
pressing any evidence of fraud therein contained, shall be fined not
more than five thousand dollars, or imprisoned not more than two
years, or both."

§ 209. Resisting Revenue Officers; Rescuing or De-
stroying Seized Property, Etc.— The provisions of old
Section 5447 become in substance Section 65 of the new
Code, in the following words:

"Sec. 65. Whoever shall forcibly assault, resist, oppose, prevent,
impede, or interfere with any officer of the customs or of the internal
revenue, or his deputy, or any person assisting him in the execution
of his duties, or any person authorized to make searches and seizures,
in the execution of his duty, or shall rescue, attempt to rescue, or
cause to be rescued, any property which has been seized by any person
so authorized; or whoever before, at, or after such seizure, in order to
prevent the seizure or securing of any goods, wares, or merchandise
by any person so authorized, shall stave, break, throw overboard,
destroy, or remove the same, shall be fined not more than two thous-
and dollars, or imprisoned not more than one year, or both; and who-
ever shall use any deadly or dangerous weapon in resisting any per-
son authorized to make searches or seizures, in the execution of his
duty, with intent to commit a bodily injury upon him, or to deter or
prevent him from discharging his duty, shall be imprisoned not more
than ten years."

Sec. 209 a. Resisting Officer, etc., Continued.

The indictment must show the legality of the act that
the officer was attempting to do otherwise is defective, U.
S. vs. Hallowell, 271 F. 795.

§ 210. Falsely Assuming to be Revenue Officer.-
There is little difference between Section 5448 of the old
Statutes and new Section 66, which is as follows:

"Sec. 66. Whoever shall falsely represent himself to be a revenue
officer, and, in such assumed character, demand or receive any

392 Federal Criminal Law Procedure.

money or other article of value from any person for any duty or tax
due to the United States, or for any violation or pretended violation
of any revenue law of the United States, shall be fined not more than
five hundred dollars and imprisoned not more than two years."

This statute is in addition to Section 32 of the new
Code, which has been heretofore noticed, and which was
old Section 5448. Section 32 makes it an offense for any
person to pretend to be any United States officer, while
Section 66 makes it an offense to assume to be a revenue
officer, when in such assumed character a demand is
made for, or any money or other article of value is re-
ceived from any person for any duty or tax due the Unit-
ed States, or for any violation or pretended violation of
any of the revenue laws of the United States. In other
words, a bare assumption or pretention that one is a
United States revenue officer, without demanding or re-
ceiving any money or article of value, as set out in the
statute, would not be an offense under this section, nor
would it be an offense under Section 32.

Indictment. — An indictment should charge the unlaw-
ful, felonious, and false representation of the defendant
to be a revenue officer of the United States, and that in
such assumed character he did demand and receive cer-
tain money or valuable thing, as the case may be, as a
duty or tax, or in settlement of some violation or pre-
tended violation of the Government revenue laws.

In United States vs. Browne, 119 Federal, 482, District
Judge Thomas held good, on demurrer, an indictment
which jointly indicted two defendants under old Section
5448, the first count of which charged that the defendants
unlawfully and feloniously falsely represented themselves
to be revenue officers of the United States, and in such
assumed character did demand and receive certain money,
to wit, two hundred dollars, of and from one A. Isaacs,
for a pretended violation by the said Isaacs of a revenue
law of the United States; that is to say, of Section 8 of
an Act of Congress concerning internal revenue taxation,
approved June 13, 1898, as amended in the respect of
knowingly and wilfully buying washed revenue stamps,
etc. The second count was like the first, except that it

Against Opeeations of Government. 393

charged that the defendants had in possession washed
and restored revenue stamps, knowingly, and without
lawful excuse. The third count charged that the defend-
ants, with intent to defraud one Isaacs, unlawfully and
feloniously, did falsely assume and pretend to be officers
and employees acting under the authority of the United
States, to wit, revenue officers and employees, and in
such pretended character did fraudulently demand and
obtain from him, the said Isaacs, a sum of money, to wit,
two hundred dollars. This third count, it will be noticed,
is laid under what is now new Section 32. The defend-
ants' counsel contended that the averments of the indict-
ment were not sufficiently defined, particularly as to the
designation of the sort of revenue officer meant. The
Court held that the words of the indictment were tech-
nically sufficient to charge an offense under the statute

The case of the United States vs. Farnham, 127 Fed-
eral, 478, was discussed in considering Section 32 supra,
but it is not out of place to cite it here again to support
the theory that there must not be a remoteness between
the pretended character, and the demand or receipt of
the money or thing of value. In the Farnham case, the
defendant pretended to be a secret-service operative,
wearing a badge, etc. Ten months afterwards he re-
turned to the same hotel, representing himself to be a
traveling salesman, and secured the cashing of a worth-
less check. At the time of the cashing of the worthless
check, he did not make any further representation of his
Government employment, and the Court held that the
facts were insufficient to sustain a conviction for pretend-
ing to be an employee of the United States, and as such
knowingly and feloniously obtaining from another a sum
of money, etc.

§ 211. Offering Presents to Revenue Officers. — Sec-
tion 67 of the new Code, which re-enacts the substantial
provisions of old Statute 5452, is as follows:

"Sec. 67. Whoever, being engaged in the importation into the
United States of any goods, wares, or merchandise, or being interested
as principal, clerk, or agent in the entry of any goods, wares, or
merchandise, shall at any time make, or offer to make, to any officer

394 Federal Criminal Law Procedure.

of the revenue, any gratuity or present of money or other thing of
value, shall be fined not more than five thousand dollars, or im-
prisoned not more than two years, or both."

The offense herein denounced is a species of bribery,
and without the using the ugly word " bribery, '; is for
the purpose of covering such gratuities and gifts as
might otherwise be received by the public official, even
thought such official would not think of accepting a bribe.
The statute is limited in that it only applies to such gra-
tuities or presents as are made by importers to any officer
in the Federal revenue service. Smuggling of merchan-
dise from foreign countries into the United States would
doubtless be facilitated to a more or less extent by gifts
or gratuities from such smugglers to revenue inspectors
and officers. The purpose, therefore, of the statute, seems
to be to prevent such friendships between importers and
revenue officials as would facilitate importations of goods
into this country without the payment of legal duties.

§ 212. Admitting Merchandise to Entry for Less
Than Legal Duty. — Old Section 5444 becomes new Sec-
tion 68, which reads as follows:

"Sec. 68. Whoever, being an officer of the revenue, shall, by any
means whatever, knowingly admit or aid in admitting to entry, any
goods, wares, or merchandise, upon payment of less than the amount
of duty legally due thereon, shall be removed from office and fined
not more than five thousand dollars, or imprisoned not more than
two years, or both."

District Judge Chatfield, in the case of United States
vs. Mescall, 164 Federal, 584, which was an indictment
under old Section 5444, held that that section did not
refer merely to the act of filing at the customs-house the
document known as an entry, but comprises the transac-
tion of entering the goods into the body of the commerce
of the country; that is, the whole process of passing the
goods from the customs-house, which cannot be deemed
completed until liquidation has been had. He further
held that the words in the statute, "aid in the illegal ad-
mission of imports," includes aid given both before and
after the fact, and where a custom officer aids one who

Against Operations of Government. 395

had made wrongful entry, by concealing the falsity of
the entry, or by supporting it by false official returns, he
is within the prohibition of the section.

Indictment.— In the above case, the Court held thai an
indictment which charged that certain goods had been
imported into the United States, and entered by the im-
porter with the collector of the port under an entry num-
ber, that such goods were subject to a specific duty, and
that the defendant, who was an officer of the customs
service, as a part of his official duties, was to weigh the
goods included in this particular importation, and to
return to the collector a true statement of the result of
that weighing from which statement the amount of duty
to be collected was to be liquidated and paid, and that
in fact the defendant returned a false statement of weight,
upon which false weight duty was paid, (the amount of
this payment being too little, in proportion to the amount
by which the false weight was less than the actual
weight), and that the defendant, by so doing, unlawfully
admitted, or aided in admitting, to entry, goods specified
upon payment of less than the amount of duty legally
due thereon, was not subject to demurrer for failing to
describe an offense under this statute. See also United
States vs. Browne, 126 Federal, 766, and United States
vs. Legg, 105 Federal, 933. See United States vs. Mescall,
by the same judge, for other points, 164 Federal, 587.

§ 213. Securing Entry of Merchandise by False Sam-
ples, Etc. — Section 69 in the new Code is the same as
Section 5445 of the old Statutes, and is as follows:

"Sec. 69. Whoever, by any means whatever, shall knowingly effect,
or aid in effecting, any entry of goods, wares, or merchandise, at less
than the true weight or measure thereof, or upon a false classification
thereof as to quality or value, or by the payment of less than the
amount of duty legally due thereon, shall be fined not more than five
thousand dollars, or imprisoned not more than two years, or both."

The allegations and proof under this section should
show knowledge on the part of the defendant of the im-
proper weight or measure or classification of the goods

396 Federal Criminal Law Procedure.

or articles imported; and while in United States vs. Ros-
enthal, 126 Federal, 766, District Judge Thomas held that
an indictment under 5445 which charged that the defend-
ant, on a day named, "with intent .... that the United
States should be wrongfully deprived of a portion of the
lawful duties due" on certain imported goods which
were specifically dutiable according to weight, effected
an entry thereof at less than their true weight, and by
payment of less than their legal duty, sufficiently charged
that the entry was knowingly effected; yet, it is believed
that the correct practice is to use the word knowingly in
the indictment when the statute makes knowledge a con-
stituent of the offense.

With the above qualification, the indictment as epito-
mized by Judge Thomas in that case, may be relied upon
as good under this statute, such epitome comprehending
that the defendants, on the day named, and with intent
to defraud the United States of duty on goods specifi-
cally dutiable according to weight, effected an entry there-
of, which was an entry for warehousing the goods, and
by payment of less than the legal duty. They effected
said entry, (1) by making it in accordance with false
statements as to weight in the invoice, which invoice had
by their direction been made, consulated, and forwarded
by their agent in Japan; (2) by corruptly procuring said
invoice to be wrongfully approved, passed, and reported,
by Browne, the examiner, to the collector. In other words,
the offense described in the statute is knowingly effecting
an entry of goods, (a) at less than their true weight or
measure; (b) upon a false classification; or (c) by pay-
ment of less than legal duty.

§ 214. False Certification by Consular Officers.— Old
Statute 5442 has been changed by the omission of the
words " commercial agent or vice-commercial agent,"
substituting therefor, "or other person employed in the
Consular Service of the United States," in new Section
70, which is in the following words:

"Sec. 70. Whoever, being a consul, or vice-consul, or other person
employed in the consular service of the United States, shall know-
ingly certify falsely to any invoice, or other paper, to which his

Against Operations of Government. 397

certificate is by law authorized or required, shall be fined not more
than ten thousand dollars and imprisoned not more than three years. "

This is the only difference between the new and the old
law.

Query. — An United States Consul or other person in
the Consular Service who committed the offense denounc-
ed by the statute while he was in some foreign country
would be beyond the jurisdiction of the Federal Govern-
ment, because of venue. The incorporation of the word
"knowingly" in the section also requires it in the proof
and indictment.

§ 215. Taking Seized Property from Custody of Reve-
nue Officer. — There is practically no difference between
the wording of old Section 5446 and new Section 71,
which reads as follows:

"Sec. 71. Whoever shall dispossess or rescue, or attempt to dis-
dispossess or rescue, any property taken or detained by any officer
or other person under the authority of any revenue law of the
United States, or shall aid or assist therein, shall be fined not more
than three hundred dollars and imprisoned not more than one year."

While this statute does not contain the word "know-
ingly," there is no doubt but that an indictment should
allege that the person charged knew that the property
rescued or taken from the revenue officer was in fact in
possession of such officer as a revenue officer of the Unit-
ed States.

§ 216. Forging, Etc., Certificate of Citizenship. — The
Act of June 29, 1906, 34 Statute at Large, 602, known as
the Naturalization Law, contained at Section 16 a pro-
vision for the prosecution of falsely making, forging,
etc., certificates, when such certificate was for the use of
the person so falsely making or for the use of someone
else. In other words, to constitute an offense under the
statute, the certificate must have been so falsely made,
etc., to be used, and such allegation is necessary in the
bill, and must be made in the proof. The section, as it
passes into the new Code, becomes Section 74, which
reads as follows:

398 Federal Criminal Law Procedure.

"Sec. 74. Whoever shall falsely make, forge, or counterfeit, or
cause or procure to be falsely made, forged, or counterfeited, or shall
knowingly aid or assist in falsely making, forging, or counterfeiting
any certificate of citizenship, with intent to use the same, or with
the intent that the same may be used by some other person, shall be
fined not more than ten thousand dollars, or imprisoned not more
than ten years, or both."

Sec. 216 a. Cancellation of Illegally Secured Certifi-
cate of Citizenship.

The United States may bring a suit to cancel an il-
legally secured certificate of citizenship, Grahl vs. U. S.,
261 F. 487.

§ 217. Engraving, Etc., Plate for Printing or Photo-
graphing, Concealing, or Bringing Into the United States,
Etc., Certificate of Citizenship. — From the same law, and
being Section 17 thereof, comes Section 75 of the new
Code, which reads as follows:

"Sec. 75. Whoever shall engrave, or cause or procure to be en-
graved, or assist in engraving, any plate in the likeness of any plate
designed for the printing of a certificate of citizenship; or whoever
shall sell any such plate, or shall bring into the United States from
any foreign place any such plate, except under the direction of the
Secretary of Commerce and Labor, or other proper officer; or who-
ever shall have in his control, custody, or possession any metallic
plate engraved after the similitude of any plate from which any such
certificate has been printed, with intent to use or to suffer such plate
to be used in forging or counterfeiting any such certificate or any
part thereof; or whoever shall print, photograph, or in any manner
cause to be printed, photograph, made, or executed, any print or
impression in the likeness of any such certificate, or any part there-
of; or whoever shall sell any such certificate, or shall bring the same
into the United States from any foreign place, except by direction
of some proper officer of the United States; or whoever shall have
in his possession a distinctive paper which has been adopted by the
proper officer of the United States for the printing of such certificate,
with intent unlawfully to use the same, shall be fined not more than
ten thousand dollars, or imprisoned not more than ten years, or
both."

§ 218. False Personation, Etc., In Procuring Natu-
ralization.— Section 5424 of the old statutes was construed
in the cases of United States vs. York, 131 Federal, 323,
and United States vs. Raisch, 144 Federal, 486, by reason
of its peculiar wording, as follows:

Against Operations of Government. 399

"It will be observed that after the word 'or' and before the words
'who tries,' etc., are omitted the words 'every person,' with which
the section opens. The same omission occurs in the third auxiliary
clause of the section; hence 'who,' as so used, and whenever used
in the section, refers to the initial 'every person.' But such words
'every person' are modified by the words 'applying to be admitted
a citizen, or appearing as a witness for any such person'; hence, as
the section literally reads, a person uttering a certificate can only
be punished in case he was a 'person applying to be admitted a
citizen, or appearing as a witness for any such person'." United
States vs. York, 131 Fed., 327.

To the same effect is United States vs. Raisch, by Judge
De Haven, who limits the application of the old section to
the person applying to be admitted a citizen, or appear-
ing as a witness for any such person. To meet such
construction, and to remedy what was evidently a mis-
take, we have Section 76 of the new Code, in the follow-
ing words:

"Sec. 76. Whoever, when applying to be admitted a citizen, or
when appearing as a witness for any such person, shall knowingly
personate any person other than himself, or shall falsely appear in
the name of a deceased person, or in an assumed or fictitious name:
or whoever shall falsely make forge, or counterfeit any oath, notice,
affidavit, certificate, record, signature, or other instrument, paper, or
proceeding required or authorized by any law relating to or providing
for the naturalization of aliens; or whoever shall utter, sell, dispose of,
or shall use as true or genuine, for any unlawful purpose, any false,
forged, antedated, or counterfeit oath, notice, certificate, order, record,
signature, instrument, paper, or proceeding above specified; or who-
ever shall sell or dispose of to any person other th*n the person for
whom it was originally issued any certificate of citizenship, or certifi-
cate showing any person to be admitted a citizen, shall be fined not
more than one thousand dollars, or imprisoned not more than five
years, or both.''

This section clearly applies generally to every person,
whether he be applying to be admitted a citizen, or
whether he be appearing as a witness for any such per-
son. The use of the word "whoever" before each of the
clauses in the section which denounce various phases of
the offense, meet clearly the limitations found in the old
statute, and render the new section general in its appli-
cation.

400 Federal Criminal Law Procedure.

§ 219. Using False Certificate of Citizenship, or De-
nying- Citizenship, Etc. — Section 5425 of the old statute
was enlarged by the Act of June 29, 1906, 34 Statute at
Large, 602, which now passes into the new Code as Sec-
tion 77, in the following words:

"Sec. 77. Whoever shall use or attempt to use, or shall aid, assist,
or participate in the use of any certificate of citizenship, knowing
the same to be forged, counterfeit, or antedated, or knowing the same
to have been procured by fraud or otherwise unlawfully obtained:
or whoever, without lawful excuse, shall knowingly possess any false,
forged, antedated, or counterfeit certificate of citizenship purporting to
have been issued under any law of the United States relating to natur-
alization, knowing such certificate to be false, forged, antedated, or coun-
terfeit, with the intent unlawfully to use the same; or whoever shall
obtain, accept, or receive any certificate of citizenship, knowing the
same to have been procured by fraud or by the use or means of any
false name or statement given or made with the intent to procure, or
to aid in procuring, the issuance of such certificate, or knowing the
same to have been fraudulently altered or antedated; or whoever,
without lawful excuse, shall have in his possession any blank certifi-
cate of citizenship provided by the Bureau of Immigration and
Naturalization with the intent unlawfully to use the same; or who-
ever, after having been admitted to be a citizen, shall, on oath or by
affidavit, knowingly, deny that he has been so admitted, with the
intent to evade or avoid any duty or liability imposed or required by
law, shall be fined not more than one thousand dollars, or imprisoned
not more than five years, or both."

The rule announced in United States vs. Melfi, 118 Fed-
eral, 902, which was a prosecution for conspiracy to
commit an offense against the United States by causing a
violation of Section 5425, is applicable to the drafting
of indictments under the new section, and it will, there-
fore, be observed that one of the essential ingredients
of the offense is that the person who should obtain, ac-
cept, or receive a certificate of citizenship, who should do
so with knowledge on his part that it had been procured
by means of false statements made with intent to pro-
cure or aid in procuring the issue of such certificate.

Bunning throughout these naturalization laws, is the
use of the word "knowingly," and the pleader must not
assume that such word was used by Congress uninten-
tionally. It is absolutely necessary to show knowledge,
both in allegation and in proof.

Against Operations op Government. 401

Sec. 219 a. Using False Certificates of Citizenship
Continued.

Sec. 79 of the Code denounces a false representation
as to being a United States citizen; also see Christopoulo
vs. U. S., 230 F. 789.

§ 220. Using False Certificate, Etc., as Evidence of
Right to Vote.— Section 78. of the new Code displaces old
Section 5426, and is in the following words:

"Sec. 7S. Whoever shall in any manner use, for the purpose of
registering as a voter, or as evidence of a right to vote, or otherwise
unlawfully, any order, certificate of citizenship, or certificate, judg-
ment, or exemplification, showing any person to be admitted to be a
citizen, whether heretofore or hereafter issued or made, knowing
that such order, certificate, judgment, or exemplification has been un-
lawfully issued or made; or whoever shall unlawfully use, or at-
tempt to use, any such order or certificate, issued to or in the name
of any other person, or in a fictitious name, or the name of a de-
ceased person, shall be fined not more than one thousand dollars, or
imprisoned not more than five years, or both."

Bearing in mind the observation that has been so often
repeated as to the use of the word "knowledge" or
"knowingly" in these naturalization statutes, it is well
to call attention to the case of United States vs. Lehman,
39 Federal, 768, where Judge Thayer held that an indict-
ment for a violation of such statute, which describes the
fraud without describing the facts constituting the fraud,
is bad, though the allegation be made that such acts are
unknown to the grand jury. In the matter of Coleman,
15 Blatchf., 406, it was held that knowledge that the cer-
tificate was unlawfully issued or made was necessary to
constitute an offense under the section. There can be no
conviction when it appears that the defendant complied
fully with all the conditions imposed on him as prereq-
uisite to his admission and that the unlawfulness, if
any, was in the want of form in the record of the Court.
So, in United States vs. Burley, 14 Blatchf., U. S., 91,
where the defendant was indicted under this section and
the proof showed that the defendant had registered as a
voter upon the protection of the certificate, which certifi-
cate, had been issued when the applicant was not in Court,
and without any oath taken by him, the certificate being

402 Federal Criminal Law Procedure.

regular upon its face, the mere fact that the defendant
knew that the certificate had been issued without his
presence in Court, and without any oath being taken by
him, was not sufficient to warrant a conviction.

§ 221. Falsely Claiming Citizenship. — Section 5428 of
the old statutes, becomes Section 79 of the new Code in
the following words:

"Sec. 79. Whoever shall knowingly use any certificate of naturaliza-
tion heretofore or which hereafter may be granted by any court,
which has been or may be procured through fraud or by false evi-
dence, or which has been or may hereafter be issued by the clerk or
any other officer of the court without any appearance and hearing of
the applicant in court and without lawful authority; or whoever, for
any fraudulent purpose whatever, shall falsely represent himself to
be a citizen of the United States without having been duly admitted
to citizenship, shall be fined not more than one thousand dollars, or
imprisoned not more than two years, or both."

The word "duly" in the section on the authority of
Judge Chatfield in United States vs. Hamilton, 157 Fed-
eral, 569, applies to a regular compliance with require-
ments, rather than to the truth of the facts involved in
the admission, and where the person charged was granted
a certificate of citizenship by an order of Court, both of
which are regular in form, and have not been vacated,
it is impossible to charge unlawful use, based solely upon
a further allegation of knowledge that the certificate had
not been duly made.

In Green vs. United States, 150 Federal, 560, the Cir-
cuit Court of Appeals for the Ninth Circuit held that an
alien who knowingly makes a false affidavit that he has
been duly naturalized as a citizen of the United States,
before a Registration Officer for the purpose of procuring
himself to be registered as a voter at an approaching
election in a State, commits an offense under this section.
That Court also held that it is not necessary that the
false certificate be actually used for an unlawful purpose
to constitute the offense denounced by the statute.

Sec. 221 a. Falsely Claiming Citizenship Continued.

See Christopoulo vs. U. S., 230 F. 789.

Against Operations of Government. 403

§ 222. Taking False Oath in Naturalization.— Section
80 of the new Code re-enacts old Section 5395 in the fol-
lowing words :

"Sec. 80. Whoever, in any proceeding under or by virtue of any
law relating to the naturalization of aliens, shall knowingly swear
falsely in any case where an oath is made or affidavit taken, shall be
fined not more than one thousand dollars and imprisoned not more
than five years."

In United States vs. Moore, 144 Federal, 962, the Cir-
cuit Court of Appeals passes upon a form of an indict-
ment under this section, and says that in prosecutions for
perjury and in prosecutions akin thereto, it is a funda-
mental rule that an indictment must show that the tri-
bunal before which the offense is alleged to have occurred
had jurisdiction over the issue to which it related. It
is also a fundamental rule that it is not sufficient to allege
in general terms that the tribunal named had jurisdiction
over the issue alleged to have been involved, because
such an allegation includes matters of law, as well as
fact; while it is the duty and right of the court before
which an indictment is pending to be so far advised of
the facts that it can determine for itself whether the issue
was of such a character as to give the tribunal named
jurisdiction thereof, and such as to render the alleged
offense material thereto.

In the case of Schmidt vs. United States, 133 Federal,
257, the Circuit Court of Appeals for the Ninth Circuit
held that on the trial of a defendant for perjury commit-
ted in a naturalization though such affidavits, when sign-
ed, were in blank. So, too, in that case the Court held
that a defective final order was admissible as evidence
of the facts therein stated. The Supreme Court, in Hol-
gren vs. United States, October Term, 1909, affirms same
case, 156 Federal, 439, the principal question being whe-
ther, under this section, a conviction can be had in a
Federal Court for a false oath thereunder in a State
Court. Held, that it could.

§ 222a. Oath Must be Material. — No prosecution for
false swearing under Section 80 can be successfully main-

404 Federal Criminal Law Procedure.

tained unless the oath was a material oath. U. S. vs.
Bressi, 208 Federal, 369.

§ 223. Provisions Applicable to All Courts of Nat-
uralization.— Section 5429 of the old statutes is re-en-
acted into Section 81 of the new Code, and some new
words are added for the purpose of showing that the pen-
al provisions above treated are applicable to proceedings
had or taken in any Court, and reads as follows:

"Sec. 81. The provisions of the five sections last preceding shall
apply to all proceedings had or taken, or attempted to be had or taken,
before any court in which any proceedings for naturalization may be
commenced or attempted to be commenced, and whether such court
was vested by law with jurisdiction in naturalization proceedings or
not."

See Holgren vs. United States, 156 Federal, 439, af-
firmed by Supreme Court, October Term, 1909.

§ 223a. To Cancel Certificate. — A suit to cancel cer-
tificate of naturalization must show either fraud or that
the evidence before the Court which granted the certifi-
cate was insufficient to warrant the finding of residence.
U. S. vs. Eoekteschell, 208 Federal, 530. The word " re-
side" as used in the naturalization suit is capable of dif-
ferent meanings. Generally however, it signifies nothing
more nor less than domicile. U. S. vs. Eoekteschell, 208
Federal, 530.

Sec. 223 b. A Certificate May be Cancelled.

For acts subsequent to the issuance, U. S. vs. Kramer,
262 F. 395.

§ 224. Corporations, Etc., Not to Constribute Money
for Political Elections, Etc. — The Act of January 26,
1907, 34 Statute at Large, becomes Section 83 of the new
Code, in the following words:

"Sec. 83. It shall be unlawful for any national bank, or any cor-
poration organized by authority of any law of Congress, to make a
money contribution in connection with any election to any political
office. It shall also be unlawful for any corporation whatever to make
a money contribution in connection with any election at which Presi-
dential and Vice-Presidential electors or a Representative in Congress_
is to be voted for, or any election by any state legislature of a
United States Senator. Every corporation which shall make any
contribution in violation of the foregoing provisions shall be fined

Against Operations of Government. 405

not more than five thousand dollars; and every officer or director of
any corporation who shall consent to any contribution by the cor-
poration in violation of the foregoing provisions shall be fined not
more than one thousand dollars, or imprisoned not more than one
year, or both."

CHAPTER IX.

OFFENSES AGAINST THE EXISTENCE OF THE GOVERNMENT.

§ 225. Treason, Generally.

226. The Statute: 5331—1.

227. Punishment: 5332—2.

228. Misprision of Treason: 5333 — 3.

229. Inciting or Engaging in Rebellion or Insurrection: 5334 — 4.

230. Criminal Correspondence with Foreign Governments: 5335 — 5.

231. Seditious Conspiracy: 5336 — 6.

232. Recruiting Soldiers or Sailors to Serve Against the United

States. 5337—7.

233. Enlistment to Serve Against the United States: 5338 — 8.
233a. Ordinance — Purchase, sale or Disposal of.

§ 225. Treason. — At the time of the formation of this
Republic, treasons were numerous in England. They
were divided into high and petit. By the old Common
Law, there were several forms of petit treason, which
later, by English statute, were reduced to three. These
were: the killing by a servant of his master; the killing
of a husband by the wife; and the killing of a prelate by
an ecclesiastic owing him obedience. All these petit trea-
sons were abolished, however, in 1828, and there remains
now but one sort, and that is high treason. So, when the
word "treason" is used, it means high treason. Under
the United States laws, there are no Common Law crimes,
and treason, as defined in the Constitution of the United
States, consists only in levying war against them, or in
adhering to their enemies, giving them aid and comfort.
The meaning of the words "levying war," and the other
words, "adhering to their enemies, giving them aid and
comfort," is to be found in the Common Law doctrine of
and aider at the fact, as applicable to the levying of war
in treason. The meaning of war, as defined by Bishop,
is an attempt, by force, either to subjugate or to over-
throw the Government against which it is levied. Ordi-
narily, where the overthrow is not contemplated, a treaty
acknowledging rights previously denied is expected. Tf
a body of men, mistakenly deeming a particular statute
to violate fundamental or constitutional right, combine

(406)

Offenses Against Existence of Government. 4n,

to oppose by force its execution, and commit therein an
overt act, they are undoubtedly guilty of treason, pro-
vided, it is their determination also to resist by violence
every attempt to bring them to justice and to continue
this course until the Government is compelled to yield to
them. Bishop's New Criminal Law, Second Volume, page
703. The same writer, in answering the question, What
is levying war? says that in legal reason a levying of
war consists of two elements, neither of which can be dis-
pensed with: the one is the intent existing as of fact in
the mind of the accused person, either to overthrow the
Government, or to compel it, through fear, to yield some-
thing to which it would not voluntarily assent; the other
is some overt act in the nature of war or preparation
therefor, or threatening it, as an array of persons as-
sembled for war, or some war-like violence, or some other
step menacing war. Yet, we must admit that it is legally
possible for one man alone to levy war upon his Govern-
ment, and be guilty of treason. Second Bishop's Criminal
Law, 704.

§ 226. The Statute. — In line with the Constitutional
definition of treason was old Statute 5331, which is re-en-
acted into Section 1 of the New Code, which reads as
follows:

"Sec. 1. Whoever, owing allegiance to the United States levies war
against them or adheres to their enemies, giving them aid and com-
fort within the United States or elsewhere, is guilty of treason."

In 1 Story, U. S., 614, 30 Federal Case, 18275, the follow-
ing charge was given to a grand jury:

"It is not every act of treason by levying war that is treason against
the United States. It may be, and often is, aimed altogether against
the sovereignty of a particular state. Thus, for example, if the ob-
ject of an assembly of persons met with force is to overthrow the
Government or Constitution of a State, or to prevent the due exer-
cises of its sovereign powers, or to resist the exercises of any one or
more of its general laws, but without any intention whatsoever to
intermeddle with the relations of that State with the national Govern-
ment, or to displace the national laws or sovereignty therein:— every
overt act done with force toward the execution of such a treason-
able purpose is treason against the State, and against the State only.
But treason may be begun against a State and may be mixed up or

408 Federal Criminal Law Procedure.

merged in treason against the United States. Thus, if the treason-
able purpose be to overthrow the Government of the State and forcibly
to withdraw it from the Union, and thereby to prevent the exercise
of the national sovereignty within the limits of the State, that
would be treason against the United States."

In United States vs. Wiltberger, 5 Wheat., U. S., 76,
treason was denned as a breach of allegiance, and can be
committed by him only who owes allegiance, either per-
petual or temporary. In the case of United States vs.
Greiner, 26 Federal Case No. 15262, it was held that every
step taken by anyone of an armed body of men mustered
into military array for a treasonable purpose, by march-
ing or otherwise, in part execution of that purpose, is an
overt act of treason in levying war. See also U. S. vs.
Vilato, 2 Dall., 370; the Insurgents, 2 Dall., 385; ex parte
Bohnan et al, 4 Cranch, 75; U. S. vs. Burr, 4 Cranch, 469;
Carlyle vs. U. S., 16 Wallace, 147; U. S. vs. Burr, 1 Burr's
Trial, 14, 16; Second Burr's Trial, 402, page 25, Federal
Case, 2, 52, 55, and 210; U. S. vs. Cathcart, 1 Bond, 556;
25 Federal Case, 344; U. S. vs. Greathouse, 26 Federal
Case, 818; U. S. vs. Hodges, 26 Federal Cases, 332; U. S.
vs. Hoxie, 26 Federal Case, 397; U. S. vs. Mitchell, 2 Dall.,
26, Federal Case, 1277; U. S. vs. Vigol, 28 Federal Case,
376; U. S. vs. Pry or, 27 Federal Case, 628; Charges to
Grand Jury, 2 Curt., 630, 30 Federal Case, 1024, 4 Blatchf.,
518; 30 Federal Case, 1032; 5 Blatchf., 549; 30 Federal
Case, 1034; 1 Bond, 609, 30 Federal Case, 1036; 30 Federal
Case, 1039; 30 Federal Case, 1042; 30 Federal Case, 1046;
30 Federal Case, 1047; 30 Federal Case, 1049. One of the
most interesting cases, in its treatment of the evidence
necessary to establish the offense, will be found in United
States vs. Burr, 25 Federal Case, No. 14693.

Sec. 226 a. Treason Continued.

The harboring or concealing of a spy of the govern-
ment against which the United States were at war is
treason, U. S. vs. Fricke, 259 F. 673.

Treason embraces the existence both of a state of mind
and of an overt act, U. S. vs. Werner, 247 F. 709.

§ 227. Punishment. — The punishment for treason is
the same under Section 2 of the new Code as it was under
the old Statute 5332, the new section reading as follows:

Offenses Against Existence of Government. 409

"Sec. 2. Whoever is convicted of treason shall suffer death; or,
at discretion of the court, shall be imprisoned not less than five years
and fined not less than ten thousand dollars, to be levied on and
collected out of any or all of his property, real or personal, of which
he was the owner at the time of committing such treason, any sale
or conveyance to the contrary notwithstanding; and every person
so convicted of treason shall, moreover, be incapable of holding any
office under the United States."

In Davis case, Chase, U. S., page 1, 7 Federal Case No.
3621a, it was held that treason under this section in bail-
able.

It was held in Wallace vs. Van Riswick, 92 U. S., 202, 23
Law Ed., 473, that after an adjudicated forfeiture and
sale of an enemy's land, under the Confiscation Act of
Congress of July 7, 1862, and the general resolution of
even date therewith, that there was not left in him any in-
terest which he could convey by deed.

In Windsor vs. McVeigh, 93 U. S., 274, 23 Law Ed.,
page 914, the Supreme Court held that the jurisdiction ac-
quired by the seizure of the property in a proceeding in
rem for its condemnation, is not to pass upon the question
of forfeiture absolutely, but to pass upon that question
after opportunity has been offered 'to its owner and parties
interested to appear and be heard upon the charges for
which the forfeiture is claimed. To that end, some noti-
fication of the proceedings, beyond that arising from the
seizure prescribing the time within which the appearance
must be made, is essential.

§ 228. Misprision of Treason. — Section 3 of the new
Code, which takes the place of the old Statute 5333, is in
the following words:

"Sec. 3. Whoever, owing allegiance to the United States and having
knowledge of the commission of any treason against them, conceals,
and does not, as soon as may be, disclose and make 'known the same
to the President or to some judge of the United States, or to the
govenor or to some judge or justice of a particular State, is guilty
of misprision of treason and shall be imprisoned not more than
seven years and fined not more than one thousand dollars."

Cases of more or less interest, bearing upon the statute,
are United States vs. Wiltberger, 5 Wheat,, 97; Confisca-
tion cases, 1 Woods, 221, 6 Federal Case, 270; U. S. vs.
Tract of Land, 1 Woods, 475; 28 Federal Case, 203.

410 Federal Criminal Law Procedure.

Misprision, whether of felony or of treason, is defined
by the text-book writers as criminal negligence either to
prevent it from being committed, or to bring to justice
the offender after its commission. The statute under
consideration seems to be limited by its terms, not to a
prevention of the offense of treason, but to the disclosure
of the knowledge of the commission as soon as may be.

Sec. 228a. Misprision of Treason — Continued.

The mere expression of an opinion is not a violation of
this statute. Sandberg vs. U. S., 257 F. 643.

§ 229. Inciting or Engaging in Rebellion or Insurrec-
tion.— Section 5334 of the old Statutes becomes Section

4 of the new Code, in the following words:

"Sec. 4. Whoever incites, sets on foot, assists, or engages in any
rebellion or insurrection against the authority of the United States
or the laws thereof, or gives aid or comfort thereto, shall be imprison-
ed not more than ten years, or fined not more than ten thousand
dollars, or both; and shall, moreover, be incapable of holding any
office under the United States."

§ 230. Criminal Correspondence with Foreign Govern-
ments.— Section 5335 of the old statutes becomes section

5 of the new Code, which reads as follows:

"Sec. 5. Every citizen of the United States, whether actually resi-
dent or abiding within the same, or in any place subject to the juris-
diction thereof, or in any foreign country, without the permission
or authority of the Government, directly or indirectly, commences
or carries on any verbal or written correspondence or intercourse
with any foreign government or any officer or agent thereof, with an
intent to influence the measures or conduct of any foreign government
or of any officer or agent thereof, in relation to any disputes or con-
troversies with the United States, or to defeat the measures of the
Government of the United States; and every person, being a citizen
of or resident within the United States or in any place subject to the
jurisdiction thereof, and not duly authorized, counsels, advises, or
assists in any such correspondence with such intent, shall be fined
not more than five thousand dollars, and imprisoned not more than
three years; but nothing in this section shall be construed to abridge
the right of a citizen to apply himself or his agent, to any foreign
government or the agents thereof for redress, of any injury which he
may have sustained from such government or any of its agents or
subjects."

Offenses Against Existence of Government. 411

§ 231. Seditious Conspiracy.— Section 5336 of the old
statutes becomes Section 6 of the new Code, and is as fol-
lows:

"Sec. 6. If two or more persons in any State or Territory or in any
place subject to the jurisdiction of the United States, conspire to
overthrow, put down, or to destroy by force the Government of the
United States, or to levy war against them, or to oppose by force
the authority thereof, or by force to prevent, hinder, or delay the exe-
cution of any law of the United States, or by force to seize, take, or
possess any property of the United States contrary to the authority
thereof, they shall each be fined not more than five thousand dollars,
or imprisoned not more than six years, or both."

Sec. 231 a. Seditious Conspiracy Continued.

It is a violation to conspire against the neutrality of
the government, Act of May 7, 1917, Criminal Code, Sec.
10, as against enlisting for foreign service.

For conspiracy against the Espionage Act and to vio-
late the draft and against our declarations of war see:
Masses vs. Patten, 244 P. 535; U. S. vs. Casey, 247 P. 362;
Orear vs. U. S., 261 F. 259; Wells vs. U. S., 257 F. 605;
Reeder vs. U. S., 262 F. 36.

§ 232. Recruiting Soldiers or Sailors to Serve Against
the United States.— Section 5337 of the 1878 statutes be-
comes Section 7 of the new Code, and is as follows:

"Sec. 7. Whoever recruits soldiers or sailors within the United
States, or in any place subject to the jurisdiction thereof, to engage
in armed hostility against the same, or opens within the United
States, or in any place subject to the jurisdiction thereof, a recruiting
station for the enlistment of such soldiers or sailors to serve in any
manner in armed hostility against the United States, shall be fined not
more than one thousand dollars and imprisoned not more than five
years."

§ 233. Enlistment to Serve Against the United States.

— Section 8 of the new Code displaces Section 5338 of the
old statutes, and is as follows:

"Sec. 8. Every person enlisted or engaged within the United States
or in any place subject to the jurisdiction thereof, with intent to
serve in armed hostility against the United States, shall be fined
one hundred dollars and imprisoned not more than three years."

412 Federal Criminal Law Procedure.

§ 233a. Ordinance, Purchase, Sale, or Disposal of. —
Sections 1242 and 3748 of the Revised Statutes prohibit
the purchase, sale, pledge, loan or gift by a soldier of
any of his clothing, arms, military outfit and accouter-
ments, and the Government, in supplying the soldier or
recruit with equipments suitable and necessary for the
discharge of his military duties, retains title to the same.
It is regarded as public property, whether remaining in
a public depot or in the possession of the individual
soldier. Lobosco vs. U. S., 183 Federal, 742. Section
5438 of the Revised Statutes makes it an offense for any
person to knowingly purchase or receive in pledge from
a soldier or sailor any arms, equipment, ammunition,
clothing, stores, or any other public property, and it is
not material that the clothing purchased by accused from
certain marines was not a part of their equipment, but
was furnished to them under their clothing allowance.
Lobosco vs. U. S., 183 Federal, 742. Since the Govern-
ment is required to prove guilty knowledge under this
section, evidence of the commission of other similar of-
fenses by accused than those charged in the indictment
is admissible. Lobosco vs. U. S., 183 Federal, 742. See
also Carter vs. McClaughry, 183 U. S., 365. It is not es-
sential that the voucher or other thing should in itself
contain false matter, but whether the claim is honest or
fraudulent is to be determined from all the facts. Dim-
mick vs. U. S., 116 Federal, 825.

CHAPTER X.

OFFENSES AGAINST NEUTRALITY.

§ 234. Neutrality Generally.
234a. President's Power to Enforce Neutrality.
234b. Belligerent has no Right to Bring Prize into U. S. Port.

235. Accepting Foreign Commission.

236. Enlisting in Foreign Service.

237. Arming Vessels Against People at Peace With the United States.

238. Forfeiture Without Conviction.

239. Augmenting Force of Foreign Vessel of War.

240. Military Expeditions Against People at Peace With the United

States.

241. Enforcement of Foregoing Provisions.

241a. The President's Authority Under This Section.

242. Compelling Foreign Vessels to Depart.

243. Armed Vessels to Give Bond on Clearance.

244. Detention by Collector of Customs.

245. Construction of This Chapter.

§ 234. The word "neutrality," as used with reference
to governments and international law, has no different
meaning than that given to it in the ordinary course of
affairs. The Century Dictionary defines it as "the state
of being neutral, or of being unengaged in a dispute or
contest between others; the taking of no part on either
side; in international law, the attitude and condition of a
nation or state, which does not take part, directly or indi-
rectly, in a war between other states, but maintains rela-
tions of amity with all the contending parties." The 29
Volume of the "Cyc," at page 675, citing the Three
Friends, 166 U. S., page 1, 41 Law Ed., page 897, deduces
that neutrality, strictly speaking, consists in abstinence
from any participation in a public, private, or civil war,
and impartiality of conduct toward both parties. That
authority, continuing, says:

"The nation which, while preserving its natural liberty and its
independence, remains at peace while other nations are at war, and
which continues to maintain with the two belligerent nations the
friendly relations of commerce, or only of sociality, or of humanity, ex-
isting before the out-break of hostilities, may call itself neutral. This
quality imposes upon it the obligations which may be summed up

(413)

414 Federal Criminal Law Procedltre.

in two principles, and which embraces all the others: abstaining
from all acts of hostility, direct or indirect: and perfect impartiality
between the two nations at war, respecting all matters affecting the
war."

From these definitions, one readily discovers that neu-
trality, in a measure, interferes with the liberty and inde-
pendence of the nation preserving that status.

The United States was one of the earliest countries to
preserve by law its neutrality with reference to conflicts
between other governments and nationalities. While
there are international punishments for a failure to ob-
serve the full measure of neutrality, the most effective
preventive is the penal Code, which creates offenses under
this head, and affixes punishments therefor; and in con-
struing .such statutes, the same rules are to be applied
and observed as govern the construction of other penal
statutes.

§ 234a. President's Power to Enforce Neutrality .-
District Judge Maxey in ex parte Orozco, 201 Federal,
106, questioned the power of the President to use the
military power of the United States to arrest and im-
prison for neutrality violations and held that the fifth
amendment to the Federal constitution guaranteeing im-
munity against being deprived of liberty without due
process of law, and the fourth amendment declaring that
warrants shall not be issued except on probable cause sup-
ported by oath or affirmation and the sixth amendment
guaranteeing to the accused a speedy and public trial by
a jury in the district where the crime was committed,
were applicable to aliens sojourning in the United States,
as well as to citizens, and in time of peace the President
has no right to use the military force for arrest.

The relator, who was a Mexican citizen, was discharged
from the custody of the military authorities upon habeas
corpus.

The same district judge, in the case of United States vs.
Chavez, held that the word export, which was used in the
joint congressional resolution of March 14, 1912, which
authorized the president to make proclamation against
the exporting of arms or munitions of war under certain

Offenses Against Neutrality. 415

conditions, was limited to a transportation of arms or
munitions of war from any place in the United States to
"such country," that is, such foreign country; and hence
a charge that accused with intent to export munitions of
war from the city of El Paso to a place in Mexico in vio-
lation of the Presidential proclamation, did make a ship-
ment of cartridges, etc., by transporting them on his per-
son from one point in the city of El Paso to another point
therein, did not charge a violation of the resolution, and
sustained a demurrer to the indictment.

Sec. 234 b. Belligerent has no Right to Bring Prize
into U. S. Port.

A belligerent has no right to bring prizes into a United
States port for an indefinite stay, Berg vs. Bas Company
& Harrison, U. S. Supreme Ct. Oct. term, 1916, Mar. 6,
1917.

§ 235. Accepting Foreign Commission. — Section 9 of
the new Code re-enacts old Section 5281, and is in the
following language:

"Sec. 9. Every citizen of the United States who, within the terri-
tory or jurisdiction thereof, accepts and exercises a commission to
serve a foreign prince, state, colony, district, or people, in war, by
land or by sea, against any prince, state, colony, district, or people
with whom the United States are at peace, shall be fined not more
than two thousand dollars and imprisoned not more than three years."

The wording of the statute bears the construction that
the mere acceptance of a commission of the sort therein
described would not create the offense. It is necessary
that some overt act be committed under the commission,
such as raising men for the enterprise, collecting provis-
ions, munitions of war, or any other act which shows an
exercise of the authority which the commission is sup-
posed to confer. 29 Cyc, 678; in re Charge to Grand
Jury, 30 Federal Case No. 18265, 2 McLean, 1.

§ 236. Enlisting in Foreign Service. — Old Section
5282 becomes Section 10 of the new Code, in the following-
words:

"Whoever, within the territory or jurisdiction of the United States,
enlists, or enters himself, or hires or retains another person to en-
list or enter himself, or to go beyond the limits or jurisdiction of the

416 Federal Criminal Law Procedure.

United States with intent to be enlisted or entered in the service
of any foreign prince, state, colony, district, or people, as a soldier,
or as a marine or seaman, on board of any vessel of war, letter of
marque, or privateer, shall be fined not more than one thousand
dollars, and imprisoned not more than three years."

The Courts have held, in construing this section, Unit-
ed States vs. Obrien et al, 75 Federal, 900, that persons
are not only prohibited from enlisting in this country as
a soldier of any foreign power, but they are also pro-
hibited from hiring or retaining any other person to en-
list or to go abroad for the purpose of enlisting. The
Court also observes in that case, which seems to have
been followed, that the statute does not prohibit persons
within our jurisdiction, whether citizens or not, going as
individuals to foreign states, and there enlisting in their
armies, and that individuals may go abroad to enlist in
any number and in any way they see fit; by regular line
of steamers, by chartering a vessel, or in any other man-
ner, either separately, or associated, provided always,
that they do not go as a military expedition, or set on foot
or begin within our jurisdiction a military expedition or
enterprise, to be carried on for this country, or provide
or prepare the means therefor.

If, however, a military expedition or enterprise has in
fact been prepared in this country, and carried by sea to
a foreign shore, then all persons who planned for it, or
prepared for it here, or knowingly took part in the trans-
portation of it, are guilty under the statute. TJ. S. vs.
Obrien, 75 Federal, page 900.

Sec. 236 a. Enlisting in Foreign Service, Continued.

Sec. 10, quoted above is given a proviso in the Act of
May 7, 1917, to the effect that a nation which is at war
with a nation with which the United States is at war is
excepted.

§ 237. Arming Vessels Against People at Peace with
the United States.— Old Section 5238 becomes new Sec-
tion 11, and is as follows:

"Sec. 11. Whoever, within the territory or jurisdiction of the United
States, fits out and arms, or attempts to fit out and arm, or procures

Offenses Against Neutrality. 417

to be fitted out and armed, or knowingly is concerned in the fur-
nishing, fitting out, or arming of any vessel, with intent that such
vessel shall be employed in the service of any foreign prince or state,
or of any colony, district, or people, to cruise or commit hostilities
against the subjects, citizens, or property of any foreign prince or
state, or of any colony, district, or people, with whom the United States
are at peace, or whoever issues or delivers a commission within the
territory or jurisdiction of the United States for any vessel, to the
intent that she may be so employed, shall be fined not more than ten
thousand dollars, and imprisoned not more than three years. And
every such vessel, her tackle, apparel, and furniture, together with all
materials, arms, ammunition, and stores which may have been pro-
cured for the building and equipment thereof, shall be forfeited;
one-half to the use of the informer and the other half to the use of
the United States."

The statute contains two methods of punishment, it
will be noticed: one against the person, and one against
the property; that is, the imprisonment of the offender
and the forfeiture of his vessel. The Supreme Court of
the United States in Wiborg et al. vs. United States, 163
U. S., page 632, 41 Law Ed., page 289, in passing upon a
case that originated in Pennsylvania, under Section 5286,
hereinafter noted, the facts of which showed in substance,
that the "Horsa," a Danish steamer engaged in the fruit
business at Philadelphia, cleared from Philadelphia for
Jamaica, having only a small cargo; that thereafter, near
Barnegat, off the Jersey coast, she was loaded with a
cargo of men and rifles, swords, machettes, cartridges,
and other munitions of war, which cargo was subsequent-
ly delivered to Cuba, where there was an insurrection of
the Cubans against the Spaniards, said in substance, a
military expedition or enterprise is entered upon when
men with knowledge of the enterprise combine and or-
ganize in this country, and are carried with arms and
ammunition under their control, by a tug, thirty or forty
miles out to sea, to a steamer, on which they embark and
drill, and by which they are taken to Cuba, where they
disembark to effect an armed landing on the coast, with
intent to make war against a government with which the
United States is at peace; and in determining whether
the combination was lawful or not, the declarations of
those engaged in it, explanatory of acts done in further-

418 Federal Criminal Law Procedure.

ance of its object, are competent evidence after the com-
bination has been proved.

Another interesting authority under this section, as
well as other sections under this chapter, is the Lauradra,
85 Federal, 760, which was a case that originated upon
a similar state of facts to the Wiborg case, and was the
loading of a fruit vessel off the American coast, near
Barnegat, with men and munitions, for engagement in
the Cuban revolution. In that case, the Court observed
that while it was not the purpose of our neutrality laws
in any manner to check or interfere with the commercial
activity of citizens of the United States, or of others re-
siding therein, and interested in commercial transactions,
nor to render unlawful mere commercial ventures in con-
traband of war, they were designed to prohibit acts and
preparations on the soil or waters of the United States
not originating with a due regard for commercial
interest, but of a nature distinctly hostile in a material
sense to a friendly power engaged in hostilities, and cal-
culated or tending to involve this country in war, whether
an incidental or direct commercial profit does or does not
result therefrom.

District Judge Bradford, in considering the above-men-
tioned case, held that it was necessary, for the forfeiture
of the vessel under 5283, that the furnishing, fitting out,
or arming of her for the prohibited should be completed
within the limits of the United States. It was also de-
termined that it was sufficient, if by pre-arrangement
within the limits of the United States, the vessel having
been procured there, the furnishing, fitting out, or arming
was to be effected or completed after she had gone beyond
the limits of the United States; and further, that the
intent that a vessel furnished, fitted out, or armed to
cruise or commit hostilities against the subjects or prop-
erty of a foreign prince with whom the United States is at
peace, shall be formed within the limits of the United
States, and shall be of a fixed and unconditional nature.
If such intent originates on the high seas, beyond the
limits of the United States, though on an American vessel,

Offenses Against Neutrality. 419

which then, for the first time, is intended to commit such
hostilities, no forfeiture accrues under the section.

Sec. 237 a. Arming Vessels Against People at Peace
with the United States Continued.

See the Act of June 15, 1917.

§ 238. Forfeiture Without Conviction. — On the au-
thority of the United States against the Three Friends,
166 U. S., page 1, Lawyers' Edition, Book 41, page 915, it
may be stated as the law that a civil suit in rem for the
condemnation of the vessel is not a criminal prosecution,
and the success of such suit does not depend upon the
conviction of a person or persons doing the acts de-
nounced in the statute. The two proceedings are wholly
independent, and pursued in different courts. Indeed,
forfeiture might be decreed, if the proof showed the pro-
hibited acts were committed, though lacking as to the
identity of the person by whom they were committed. In
deciding the Three Friends case, and giving expression
to the opinion as above quoted in substance, the Supreme
Court cited the "Palmyra," 25 U. S., 12 Wheat., 1; 6
Law Ed., 531; "Ambrose Light," 25 Federal, 408; the
"Meteor," 17 Federal Cases, 178. The Supreme Court
also held in the Three Friends case, cited supra, that the
release on bond of a vessel charged with liability to for-
feiture under this section, before answer or hearing, and
against the objection of the United States, when such
release might result in a hostile expedition against a
friendly power, should not be allowed ; and if such an or-
der of release is improvidently made, the vessel should be
recalled.

§ 239. Augumenting Force of Foreign Vessel of War.
— Revised Statutes 5285 becomes Section 12 of the new
Code, in the following words:

"Sec. 12. Whoever, within the territory or jurisdiction of the
United States, increases or augments, or procures to be increased or
augmented, or knowingly is concerned in increasing or augmenting,
the force of any ship of war, cruiser, or other armed vessel which,
at the time of her arrival within the United States, was a ship of
war, or cruiser, or armed vessel, in the service of any foreign

420 Federal Criminal Law Procedure.

prince or state, or of any colony, district, or people, or belonging
to the subjects or citizens of any such prince or state, colony, district,
or people, the same being at war with any foreign prince or state, or
of any colony, district, or people with whom the United States are at
peace, by adding to the number of the guns of such vessel, or by
changing those on board of her for guns of a larger caliber, or by
adding thereto any equipment solely applicable to war, shall be fined
not more than one thousand dollars and imprisoned not more than one
year."

This statute, in substance, makes it an offense lor any
person to increase or augment, within the territory of the
United States, any war vessel belonging to a foreign pow-
er. Such equipment, within the meaning of the statute,
must be intended solely for the purpose of war. See Aler-
ta vs. Moran, 9 Cranch, 359; U. S. vs. Grassin, 3 Wash-
ington, 65; 26 Federal Cases, 10.

§ 240. Military Expeditions Against People at Peace
with the United States. — Old Section 5286 becomes Sec-
tion 13, as follows:

"Sec. 13. Whoever, within the territory or jurisdiction of the
United States, begins, or sets on foot, or provides or prepares the
means for, any military expedition or enterprise, to be carried on
from thence against the territory or dominions of any fore'gn prince
or state, or of any colony, district, or people, with whom the United
States are at peace, shall be fined not more than three thousand dol-
lars and imprisoned not more than three years."

In the language of Judge Bradford, as cited in United
States vs. Murphy, 84 Federal, 609, the broad purpose of
Section 5286 of the United States Revised Statutes is to
prevent complications between this Government and for-
eign powers. It is not the intent of that section in any
manner to check or interfere with the commercial activi-
ties of citizens of the United States, or of others residing
within the United States and interested in commercial
transactions; but to prevent the use of the soil or waters
of the United States as a base from which military expe-
ditions or military enterprises shall be carried on against
foreign powers with which the United States is at peace.
And under the authority of that case, the providing of the
means of transportation of a military enterprise to be
carried on from the United States against the Spanish

Offenses Against Neutrality. 421

rule in Cuba, was, within the meaning of that section, a
preparing of the means for such military enterprise, to be
so earned on; and if done with knowledge on the part
of the person so providing the means of transportation,
of the character and purpose of such enterprise, the same
is denounced by the statute.

In Wiborg vs. United States, 163 U. S., 632, the Su-
preme Court held that a hostile expedition dispatched
from the ports of the United States, is within the words
" earned on from thence."

Under the authority of Hart vs. United States, 84 Fed-
eral, 799, the' question as to whether the men and muni-
tions of war, for which the accused furnished transporta-
tion, constituted a "military expedition" in the meaning
of the statute, or the men were traveling as individuals,
without organization or concert of action, and the arms
and munitions were carried as articles of legitimate com-
merce, and whether the accused had guilty knowledge of
the facts constituting the military expedition (if it were
such), are all questions for the jury, under proper in-
structions.

The words in the statute, "begins, or sets on foot," are
construed to mean, in charge to grand jury, 1838 Second
McLain, U. S., 1;. 30 Federal Case No. 18265, the making
of preparations which showed an intent to set such an ex-
pedition on foot; as, for instance, the contribution of
money, clothing for troops, provisions, arms, or any
other contribution which shall tend to forward the expe-
dition or to add to the comfort or maintenance of those
who are engaged in it.

District Judge Brown, in United States vs. Nunez et al,
82 Federal, 599, uses the following language:

"What constitutes a military expedition? What are some of the
features that mark a military enterprise or expedition as different
from a peaceable transportation of passengers, arms, ammunition,
or goods. The essential features of military operations are evident
enough. They are concert of action, unity of action by a body or-
ganized and acting together, acting by means of weapons of some kind,
acting under command, leadership: these are the three most essential
elements of military action."

422 Federal Criminal Law Procedure.

The Court held in United States vs. 0 'Sullivan, 27 Fed-
eral Cases No. 15975, that it is not essential to the case that
the expedition should start, much less that it should have
been accomplished. To "begin" is not to finish; to "set
on foot" is not to accomplish; to provide a powder, is not
to put to it the match or the percussion. It is not neces-
sary that the vessel should actually sail, nor is it neces-
sary that war should exist between the nation on which
the descent is to be made with another nation.

District Judge Brawley, in United States vs. Hughes,
70 Federal, 972, held upon preliminary examination that
testimony which showed that the steamship of which the
defendant was captain, after leaving the port of New
York, and passing outside of Sandy Hook, stopped two
or three miles from shore; that two tugs approached and
put on board thirty-five men with several boxes and three
boats; that the boxes were opened and guns and arms
were taken out; that during the voyage the men so taken
on board were constantly drilled; that the men spoke
Spanish, and some of them said they were going to Cuba
to fight; that when the steamer approached the coast of
Cuba at night, the lights were extinguished and that the
men disembarked there, taking their arms with them,
using their own three boats and one lent by the steamer,
was sufficient to raise probable cause to believe that the
captain had violated the statute.

The necessary ingredients of the offense denounced by
this statute are plainly set out in charges to the grand
jury, 5 McLean, 306, 30 Federal Case, 18267.

Other cases bearing upon different phases, and illus-
trating the construction of the statute with reference to
such phases by the Court, are the following: U. S. vs.
Pirates, 5 Wheat., 184; U. S. vs. Hallock, 154 U. S., 537;
Duval 1 vs. U. S., 154 U. S., 548; the "Chapman," 4 Saw.,
501; the "Carondelet," 37 Federal, 799; City of Mexico,
32 Federal, 105; U. S. vs. the "Resolute,"' 40 Federal,
543; U. S. vs. the "Robert" and "Minnie," 47 Federal,
84; U. S. vs. Trumbull, 48 Federal, 99; the "Itata," 46
Federal, 646; U. S. vs. Ybanez, 53 Federal, 536; Hen-
dricks vs. Gonzales, 67 Federal, 351; U. S. vs. Pena, 69
Federal, 983; U. S. vs. O'Brien, 75 Federal, 900. The

Offenses Against Neutrality. 423

Supreme Court, in United States vs. Quincey, 6 Peters,
445, gives the substance of the form of an indictment.
This was a case for the fitting out of a foreign vessel in
an American port.

Sec. 240 a. Military Expeditions With People at
Peace With the United States, Continued.

See Act of June 15, 1917.

To send a spy is a violation of the foregoing section, U.
S. vs. Sander, 241 F. 417.

The Wellard Canal ease is, U. S. vs. Tauscher, 233 F.
597.

Expeditions against Great Britian, U. S. vs. Chakraber-
ty, 244 F. 287.

A single individual may violate this section, U. S. vs.
Ram, 254 F. 635.

For other phases of the statute, including the suffi-
ciency of the indictment, acts and evidence see Jacobsen
vs. U. S., 272 F. 399; Orozco vs. U. S., 237 F. 1008;
U. S. vs. Bopp, 230 F. 723.

§ 241. Enforcement of Foregoing Provisions. — Sec-
tion 5287 of the 1878 Statutes becomes Section 14 of the
new Code, in the following words:

"Sec. 14. The district courts shall take cognizance of all complaints,
by whomsoever instituted, in cases of capture made within the waters
of the United States, or within a marine league of the coasts or shores
thereof. In every case in which a vessel is fitted out and armed, or
attempted to be fitted out and armed, or in which the force of any
vessel of war, cruiser, or other armed vessel is increased or augment-
ed, or in which any military expedition or enterprise is begun or set
on foot, contrary to the provisions and prohibitions of this chapter;
and in every case of the capture of a vessel within the jurisdiction
or protection of the United States as before defined; and in every
case in which any process issuing out of any court of the United
States is disobeyed or resisted by any person having the custody of
any vessel of war, cruiser, or other armed vessel of any foreign prince
or state, or of any colony, district, or people, or of any subjects or
citizens of any foreign prince or state, or of any colony, district, or
people, it shall be lawful for the President, or such other person as
he shall have empowered for that purpose, to employ such part of the
land or naval forces of the United States, or of the militia thereof,
for the purpose of taking possession of and detaining any such vessel,
with her prizes, if any, in order to enforce the execution of the pro-
hibitions and penalties of this chapter, and the restoring of such

424 Federal Criminal Law Procedure.

prizes in the cases in which restoration shall be adjudged; and also
for the purpose of preventing the carrying on of any such expedition
or enterprise from the territory or jurisdiction of the United States
against the territory or dominion of any foreign prince or state, or
of any colony, district, or people with whom the United States are
at peace."

In Gelston vs. Hoyt, 3 Wheat., 246, the Supreme Court,
delivering its opinion through Mr. Justice Storey, held
that a plea, to justify a seizure and detention under this
statute as it was originally, which is the soul of the
present statute, must aver that the naval or military force
of the United States was employed for that purpose, and
that the seizor belonged to the force so employed. The
Court also held that the Act was not to be resorted to,
except in cases where a seizure or detention could not be
enforced by the ordinary civil power. See also Stoughton
vs. Dimick, 3 Blatchf., 356. The Attorney General, in 17
Opinions of Attorneys General', 242, held that the au-
thority given by this section may be exercised when there
is an organized armed body of men who intend to invade
the territory of a people with whom the United States
are at peace, when the object of such invasion is plunder.

§ 241a. The President's Authority Under This Sec-
tion.— Ex parte Orozco, 201 Federal, 107.

§ 242. Compelling Foreign Vessels to Depart. — Old
Section 5288 becomes new Section 15, which is as follows:

"Sec. 15. It shall be lawful for the President, or such person as
he shall empower for that purpose, to employ such part of the land or
naval forces of the United States, or of the militia thereof, as shall
be necessary to compel any foreign vessel to depart the United States
in all cases in which, by the laws of nations or the treaties of the
United States, she ought not to remain within the United States."

§ 243. Armed Vessels to Give Bond on Clearance. —

Section 5289 of the old statutes is re-enacted into Section
16 of the new Code, as follows:

"Sec. 16. The owners or consignees of every armed vessel sailing
out of the ports of, or under the jurisdiction of, the United States,
belonging wholly or in part to citizens thereof, shall, before clearing
out the same, given bond to the United States, with sufficient sureties,
in double the amount of the value of the vessel and cargo on board,

Offenses Against Neutrality. 425

including her armament, conditioned that the vessel shall not be em-
ployed by such owners to cruise or commit hostilities against the
subjects, citizens, or property of any foreign prince or state, or of
any colony, district, or people with whom the United States are at
peace."

The Supreme Court, in United States vs. Quincey, 6
Peters, 445, 8 Law Ed., 458, held that the statute did not
prohibit armed vessels belonging to citizens of the United
States from sailing out of our ports. It only requires
the owners to give security that such vessels shall not
be employed by them to commit hostilities against for-
eign powers at peace with the United States.

§ 244. Detention by Collector of Customs. — Section
5290 of the old statutes becomes Section 17 of the new
Code, and is as follows:

"Sec. 17. The several collectors of the customs shall detain any
vessel manifestly built for warlike purposes, and about to depart the
United States, or any place subject to the jurisdiction thereof, the
cargo of which principally consists of arms and munitions of war,
when the number of men shipped on board, or other circumstances,
render it probable that such vessel is intended to be employed by the
owners to cruise or commit hostilities upon the subjects, citizens,
or property of any foreign prince or state, or of any colony, district,
or people with whom the United States are at peace, until the decision
of the President is had thereon, or until the owner gives such bond
and security as is required of the owners of armed vessels by the
preceding section."

In United States vs. Quincey, 6 Peters, 445, Law Ed., 8,
458, the Supreme Court held that Collectors are not au-
thorized to detain vessels, although manifestly built for
warlike purposes, and about to depart from the United
States, unless circumstances shall render it probable that
such vessels are intended to be employed by the owners
to commit hostilities against some foreign power at peace
with the United States. All the latitude, therefore, nec-
essary for commercial purposes, is given to our citizens
and they are restrained onlv from such acts as are cal-
culated to involve the country in war.

In Hendricks vs. Gonzales, 67 Federal, 351, the Circuit
Court of Appeals for the Second Circuit used this lan-
guage :

426 Federal Criminal Law Procedure.

"It is not an infraction of the international obligation, to permit
an armed vessel to sail, or munitions of war to be sent, from a neutral
country to a belligernt port for sale as articles of commerce; and
neutrals may lawfully sell at home to a belligerent purchaser, or carry
themselves to the belligerents, articles which are contraband of war.
It is the right of the other belligerent power to seize and capture
such property in transit; but the right of the neutral state to sell
and transport, and of the hostile power to seize, are conflicting rights,
and neither can impute misconduct to the other. The penalty which
affects contraband merchandise is not extended to the vessel which
carries it, unless ship and cargo belong to the same owner, or the
owner of the ship is privy to the contraband carriage; and ordina-
rily the punishment of the ship is satisfied by visiting upon her the
loss of time and freight and expenses which she incurs in consequence
of her complicity. On the other hand, it is the duty of every Govern-
ment to prevent the fitting out, arming, or equipping of vessels which
it has reasonable ground to believe are intended to engage in naval
warfare with a power with which it is at peace."

§ 245. Construction of this Chapter. — Section 5291 of
the old Revised Statutes becomes Section 18 of the new
Code, in the following words:

"Sec. 18. The provisions of this chapter shall not be construed to
extend to any subject or citizen of any foreign prince, state, colony,
district, or people who is transiently within the United States and
enlists or enters himself on board of any vessel of war, letter of mar-
que, or privateer, which at the time of its arrival within the United
States was fitted and equipped as such, or hires or retains another
subject or citizen of the same foreign prince, state, colony, district,
or people who is transiently within the United States to enlist or
enter himself to serve such foreign prince, state, colony, district, or
people on board such vessel of war, letter of marque, or privateer,
if the United States shall then be at peace with such foreign prince,
state, colony, district, or people. Nor shall they be construed to pre-
vent the prosecution or punishment of treason, or any piracy defined
by the laws of the United States."

CHAPTER XI.

OFFENSES AGAINST ELECTIVE FRANCHISE AND CIVIL RIGHTS

OF CITIZENS.

§ 246. System of Government, Etc., Generally.

247. Conspiracy to Injure, Etc., Citizens in the Exercise of Civil

Rights.
247a. Indiana Election Case, and Right to Vote, Etc.
247b. Illustrative Cases.

248. Right to Labor.

249. Other Illustrations.

250. Other Crimes Committed While Violating the Preceding Sec-

tion.

251. Depriving Persons of Civil Rights Under Color of State Law.

252. Conspiracy to Prevent Persons From Holding Office, or Officer

From Performing His Duty Under United States, Etc.

253. Unlawful Presence of Troops at Election.

254. Intimidation of Voters by Officers, Etc., of Army and Navy.

255. Officers of Army or Navy Prescribing Qualifications of Voters.

256. Officers, Etc., of Army or Navy Interfering with Officers of

Election, Etc.

257. Persons Disqualified From Holding Office; When Soldiers,

Etc., May Vote.
257a. Primary Elections.

§ 246. Our system of government, being dual in its
nature, brings to the native or naturalized individual who
maintains his citizenship in this country, two protections,
each of which is, however, distinct from the other, and
jealous of its particular territory and jurisdiction. The
State has certain duties which it must fulfill toward its
citizens, to the complete and satisfactory meeting of
which the Federal Government stands as sponsor and
guarantor. On the other hand, the Federal Government
must exercise its superior power with extreme care, lest
it encroach upon the rights and sovereignties of the re-
spective States. There are also some Federal citizenship
rights, but they are few in comparison to State citizen-
ship rights. While the Federal Government has author-
ity, under the Federal Constitution, and particularly un-
der Amendments Six, Thirteen, and Fourteen to that in-
strument, to enforce certain private rights for the in-
dividual at the hands of the State, the vast majoritv of

(427)

428 Federal Criminal Law Procedure.

individual rights are to be enforced by the State Govern-
ments.

Among the rights and privileges which have been recog-
nized by the Courts as being secured to the citizens of the
United States by the Constitution, are the right to peti-
tion Congress for a redress of grievances; the right to vote
for Presidential Electors or Members of Congress; and
the right of every judicial and executive officer, or every
person engaged in the service or kept in the custody of
the United States in the course of the administration of
justice, to be protected from lawless violence. There is a
peace of the United States. These Federal rights have
been announced by the Supreme Court in their order as
above stated, in the following cases: United States vs.
Cruikshank, 92 IT. S., 542, 23 Law Ed., 588; ex parte
Yarbrough, 110 U. S., 651, 28 Law Ed., 274; in re Neagle,
135 U. S., 1, 34 Law Ed., 55; U. S. vs. Logan, 12 Supreme
Court, 617, 36 Law Ed., 429.

These Supreme Court discovered rights have been
somewhat added to by later cases, that will be noticed in
the discussion under old Section 5508, which becomes
new Section 19.

Difficult, indeed, it is to invariably trace the line be-
tween the authorities and limitations of the two sover-
eignties; and this difficulty is somewhat increased by the
desire to see that a wronged individual secures his rights,
regardless of setting precedent or the overriding of limi-
tations that must, for the perpetuity of our republic, be
observed.

§ 247. Conspiracy to Injure, Etc., Citizens in the Ex-
ercise of Civil Rights.— Section 5508 of the 1878 Revised
Statutes becomes Section 19 of the new Code, in the fol-
lowing words:

"Sec. 19. If two or more persons conspire to injure, oppress, threat-
en, or intimidate any citizen in the free exercise or enjoyment of
any right or privilege secured to him by the Constitution or laws
of the United States, or because of his having so exercised the same,
or if two or more persons go in disguise on the highway, or on
the premises of another, with intent to prevent or hinder his free
exercise or enjoyment of any right or privilege so secured, they
shall be fined not more than five thousand dollars and imprisoned
not more than ten years, and shall, moreover, be thereafter ineligible

Offenses Against Franchise, etc. 429

to any office, or place of honor, profit, or trust created by the Con-
stitution or laws of the United States."

Bearing in mind the two sorts of rights that each in-
dividual citizen in this country is supposed to enjoy,
namely, those original rights which he has as a citizen of
the United States and those which he has as a citizen of
the State in which he resides, it will be at once under-
stood that the foregoing section can only relate to and
protect such rights as are guaranteed to the citizen of
the United States; that is, to the rights pertaining to
citizens as citizens of the United States. The easiest way
for us to find the line as blazed by the Courts, is to review
some of the decisions.

In United States vs. Eberhart, 127 Federal, 254, Dis-
trict Judge Newman held that an indictment which
charged the defendants with conspiring, etc., to intimi-
date B, a citizen of the United States, in the free exercise
of his privilege to contract and being contracted with,
his right of personal security and personal liberty, and
the overt act charged was the seizing of B, the placing
of hand cuffs on him and compelling him, by force and
against his will, to enter into a pretended contract to
work for a long period of time, stated no Federal offense,
because the citizens right to personal liberty and security
was within the primary jurisdiction of the State.

In McKenna vs. United States, 127 Federal, page 88,
the Circuit Court of Appeals for the Sixth Circuit held
that an indictment under this section, which charged that
the defendants conspired to injure, etc., certain male
citizens of Kentucky in the free exercise and enjoyment
of a right and privilege secured to them, was bad, as
indefinite, in that it failed to state what particular right
and privilege it meant. The opinion, in discussing the
demurrer, leaves us under the impression that the prose-
cution would have sustained, (it being for a conspiracy
to prevent certain persons from voting), had the indict-
ment been sufficient.

The Circuit Court of Appeals for the Eighth Circuit, in
Haynes vs. United States, 101 Federal, page 819, held in
substance, that an indictment against certain persons for

430 Federal Criminal Law Procedure.

conspiring to prevent a citizen of the United States from
the free exercise and enjoyment of a certain right and
privilege secured to him by the laws of the United States,
(that is to say, the right to then and there peaceably
enter upon, prospect for minerals, initiate, locate, estab-
lish, and perfect a mining claim upon the public lands
of the United States under the public land of the United
States, etc.), was good, and that a prosecution therefor
could be sustained under this section.

In Davis vs. United States, 107 Federal, 753, the Circuit
Court of Appeals for the Sixth Circuit affirmed a convic-
tion had upon an indictment charging a conspiracy under
this section to prevent the arrest of certain parties who
were sought by the United States Deputy Marshals for
alleged violations of the Federal Revenue Laws, the overt
act charged therein being the murder of one of the Fed-
eral officials.

In Karem vs. United States, 121 Federal, 250, the Cir-
cuit Court of Appeals for the Fifth Circuit, in a prosecu-
tion under this section, held that the power of Congress,
to legislate on the subject of voting at purely State elec-
tions, is entirely dependent upon the Fifteenth Constitu-
tional Amendment, and is limited by such amendment to
the enactment of appropriate legislation to prevent the
right of a citizen of the United States to vote, from being-
denied or abridged by a State, on account of race, color,
or condition; and since the amendment is in terms ad-
dressed to action by the United States or a State, ap-
propriate legislation for its enforcement must also be
addressed to State action, and not to the action of in-
dividuals. In that case, the Court held, in substance, that
a penal act of Congress cannot be sustained, as an exer-
cise of the power given by a Constitutional provision, to
enact appropriate legislation for its enforcement, where
the Act is broader in its terms than the Constitutional
provision, and the language used covers wrongful acts
without as well as within, the same. In that particular
case, the defendant had been convicted under an indict-
ment framed under this section, which charged in sub-
stance that he and others had conspired, etc., to intimidate
certain persons of color, who were citizens of the United

Offenses Against Franchise, etc. 431

States and of the State of Kentucky, qualified voters, etc.,
from exercising a right and privilege secured by them by
the Constitution and laws of the United States, to wit,
the right and privilege to vote at the election ( setting
out the election, etc.) such election being for State and
municipal officers of Kentucky only. The defendants
were convicted. The contention of the Government be-
fore the Circuit Court of Appeals was, that Sections 2004
and 5508 of the old Statutes, guaranteed the individual
the right to vote at a State election, and that the Federal
Government protected him in his right, even against the
acts of individuals. The Fifteenth Amendment to the
Constitution reads as follows:

"Sec. 1. The right of citizens of the United States to vote shall
not be denied or abridged by the United States, or by any State, on
account of race, color, or previous condition of servitude.

"Section 2. The Congress shall have the power to enforce this
Article by appropriate legislation."

The Courts had already decided that this Constitution-
al Amendment did not confer the right of suffrage upon
anyone, United States vs. Reeves, 92 U. S., 214, 23 Law
Ed., 563; United States vs. Cruikshank, 92 U. S., 542;
23 Law Ed., 588. The right to vote is conferred by the
State laws. The Amendment, therefore, merely guaran-
teed that no State should interfere with the right to vote,
by legislation based upon a distinction as to race, color,
or previous condition of servitude. "State action, there-
fore, and not individual action," said the Court, "is the
subject of this Article. The right to vote in purely State
elections being, as we have seen, a right granted by, and
dependent upon, the law of the State, is, therefore, a right
which can only be denied or abridged by the State. The
Amendment is, therefore, in terms addressed to State
action .... With the exception of the first clause of the
first section of the Fourteenth Amendment, that section
is, like the Fifteenth Amendment, addressed broadly to
the State. The other clauses of that Section, reading as
follows:

"No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall

432 Federal Criminal Law Procedure.

any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person, within its jurisdiction,
the equal protection of thhe laws,"

have been authoritatively construed as addressed to State
action in some form, and not to mere individual conduct.
The Slaughter house case, 10 Wallace, 36, 21 Law Ed., 394;
ex parte Virginia, 100 U. S., 339, 25 Law Ed., 676, the
Cruikshank case, cited supra; United States vs. Harris,
106 U. S., 629, 27 Law Ed., 290; Virginia vs. Eives, 100
U. S., 313, 25 Law Ed., 667; Civil Rights case, 109 U. S.,
3, 37 Law Ed., 835; Chicago, etc. Railroad vs. Chicago,
166 U. S., 226, 41 Law Ed., 979." Of course, if the in-
dividual acts as an instrument or agency of the State,
and presumes to act by the authority of the State, then
this section would be operative. Same authorities. And
the Court reversed the conviction, and sustained the
demurrer.

§ 247a. Indiana Election Case. — U. S. vs. Aczel et al.
219 Federal, 917. Right to vote for United States rep-
resentatives, Felix vs. U. S., 186 Federal, 685, which also
gives form of indictment. U. S. vs. Stone, 197 Federal,
483. A ballot difficult to understand and purposely made
so in Congressional elections is a violation of this statute.
U. S. vs. Stone, 188 Federal, 836.

Sec. 247 b. Illustrative Cases Under Foregoing Sec-
tion.

Sec. 19, quoted above, does not prohibit kidnapping;
and does not punish for deporting from a state, U. S. vs.
Wheeler, 254 F. 611.

Nor does it apply for bribery of voters, U. S. vs. Bath-
gart, U. S. Sup. Ct. Mar. 1918; also U. S. vs. Gradwell,
U. S. Sup. Ct. Apr. 1917.

The intent is most material under this section, Buch-
anan vs. U. S., 233 F. 257.

The section cannot be violated by "ordering" etc., U.
S. vs. Wilcox, 243 F. 993 and U. S. vs. Welch, 243 F. 996.

For form of indictment see Montova vs. U. S., 262 F.
759.

It is a violation to prevent colored persons from voting,
Guinn vs. U. S., 228 F. 104.

Offenses Against Franchise, etc. 433

One has the right to vote for members of congress, etc.,
Aczel vs. U. S., 232 F. 652.

Personal rights and not general rights are safeguarded
and an indictment which does not recognize this distinc-
tion is invalid, Chavez vs. U. S., 261 F. 174.

The protection of this amendment does not extend to
primaries, U. S. vs. 0 'Toole, 236 F. 993.

§ 248. Right to Labor. — District Judge Trieber, in
United States vs. Morris, 125 Federal, 322, in overruling
a demurrer to an indictment, found under this section,
which charged a conspiracy, etc., to prevent negro citi-
zens from exercising the right to lease and cultivate land,
because they were negroes, etc., held that Congress has
the power, under the Thirteenth Constitutional Amend-
ment, to protect citizens of the United States in the en-
joyment of those rights which are fundamental and belong
to every citizen, if the depredation of those rights is
solely because of race or color. In his opinion, Judge
Trieber follows the distinction made by Justice Bradley
in the Civil Eights Cases, 109 U. S., 3, 27 Law Ed., 835,
in considering the Thirteenth, Fourteenth and Fifteenth
Amendments to the Constitution. By the wording of the
Fourteenth and Fifteenth Amendments, encroachments
by State authority alone are mentioned; but the Thir-
teenth Amendment includes everybody within the juris-
diction of the national Government. That Amendment
provides that neither slavery nor involuntary servitude,
except as a punishment for crime whereof the party shall
have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction. The
abolition of slavery, said Mr. Justice Field in the Slaugh-
ter-house case, and involuntary servitude, was intended
to make everyone born in this country a free man ; and
as such, to give him the right to pursue the ordinary
avocations of life, without other restraint than such as
affects all others, and to enjoy equally with them the
fruits of his labor. The right to lease land, said Judge
Trieber, and to accept employment as a laborer for hire,
are fundamental rights, inherent in every free citizen,
and a conspiracy to prevent the negro from exercising
these rights, because he is a negro, is a conspiracy to

434 Federal Criminal Law Procedure.

deprive him of the privilege secured by the Constitution
and laws of the United States, within the meaning of the
Section 5508.

The Circuit Court of Appeals for the Eighth Circuit, iu
Smith vs. United States, 157 Federal, 721, affirmed a judg-
ment of conviction had upon an indictment found under
the section now being considered, for conspiring, etc., to
effect by arresting, imprisoning, guarding, and compelling
by threats and intimidation, a certain negro to work
against his will. This prosecution was also predicated
upon the Thirteenth Constitutional Amendment. The
evidence in this case showed that one of the defendants
went to Memphis, Tennessee, and there hired fifteen or
more negroes to go with him to his place in Missouri, to
work in a mill, promising liberal wages. On their arrival
in the night, they were met at the station by another of
the defendants with hacks and taken to a farm twelve
miles distant, where they were searched for weapons, and
then placed in a cabin under the guard of others armed
with repeating rifles and revolvers. They were kept un-
der such guards night and day, and worked on the farm
in clearing and ditching, few, if any, receiving the prom-
ised wage. All of the defendants were convicted.

§ 249. Other Illustrations. — In United States vs.
Davis, 103 Federal, 458, Judge Hammond overruled a mo-
tion for new trial, and assessed the full penalty of the
statute against a defendant who was indicted for violat-
ing this section, the specific conspiracy being to injure
and intimidate, etc., a United States Marshal and his
posse, and to deprive them of their Constitutional right
to arrest him on legal process; as a result of which con-
spiracy the Deputy Marshal was killed.

The Supreme Court of the United States, in United
States vs. Mason, 213 U. S., page 115, passed technically
upon a similar prosecution against certain parties who
conspired to intimidate, and finally killed, an agent of
the Department of Justice of the United States; upon the
trial of whom the defense was raised that they had been
acquitted in the State Court for murdering the identical
person; and the Supreme Court of the United States, in

Offenses Against Franchise, etc. 435

that case, says that inasmuch as the State Court had
acquitted for murder of the identical person alleged as
the overt act for the Federal crime, there could be no
Federal offense. In other words, "the language of Sec-
tion 5509 is entirely satisfied, and the ends of justice met,
if the statute is construed as not embracing, nor intended
to embrace, any felony or misdemeanor against the State,
of which, prior to the trial in the Federal Court of the
Federal offense charged, the defendants had been law-
fully acquitted of the alleged State offense, by a State
Court having full jurisdiction in the premises. This in-
terpretation recognizes the power of the State, by its own
tribunals, to try offenses against its laws, and to acquit
or punish the alleged offender, as the facts may justify.
This construction," continued that Court, "will not pre-
vent the trial of the defendants upon the charge of con-
spiracy, and their punishment, if guilty, according to
5508; namely, by a fine of not exceeding five thousand
dollars and imprisonment not more than ten years. The
only result of the views we have expressed is that in the
trial of this case in the Federal Court, 5509 cannot be ap-
plied, because it has been judicially ascertained and de-
termined by a tribunal of competent jurisdiction — the
only one that could finally determine the question — that
the defendants did not murder Walker. The Federal
Court may, therefore, proceed as indicated in 5508, with-
out reference to 5509."

Morris Case, Hodges Case, Riggins Case, and Powell
Case. — We have discussed above Judge Trieber's opinion
in 125 Federal, 322. The Supreme Court of the United
States, in Hodges vs. United States, 27 Supreme Court, 6;
51 Law Ed., page 65; 203 II. S., page 1, which was a case
from the Eastern District of Arkansas, where the defend-
ants were convicted under this section for conspiring,
etc., to compel negro citizens, by force and intimidation,
to desist from performing their contracts of employment,
reversed and dismissed the prosecution; the reasoning of
the Court being in direct conflict with the reasoning of
Judge Trieber in the Morris case, cited supra. The opin-
ion of the Court, by Judge Brewer suggests that prior to

436 Federal Criminal Law Procedure.

the post-bellum Amendments to the Constitution, the na-
tional Government had no jurisdiction over a wrong like
that charged in this indictment. The Fourteenth and Fif-
teenth Amendments do not justify the legislation, (that
is, Section 5508), for they, as have been repeatedly held,
are restrictions upon State action. Unless, therefore,
said the Court, the Thirteenth Amendment vests in the
nation the jurisdiction claimed, the remedy must be
sought through State action, and in State tribunals, sub-
ject to the supervision of this Court, by writ of error, in
proper cases. The things denounced by the Thirteenth
Amendment are slavery and involuntary servitude, and
Congress is given power to enforce that denunciation.
While the inciting cause of the Amendment was the
emancipation of the colored race, yet it is not an attempt
to commit that race to the care of the nation. It is the
denunciation of the condition, and not a declaration of
favor of a particular people. It reaches every race and
every individual; and if in any respect it commits one
race to the nation, it commits every race and every in-
dividual thereof. Slavery or involuntary servitude of
the Chinese, of the Italian, of the Anglo Saxon, are as
much within its compass as slavery or involuntary servi-
tude of the African. It is no answer to say that one of
the indicia of the existence of slavery is the existence of
the disability to make or perform contracts. The Court
continues:

"At the close of the Civil War, when the problem of the eman-
cipated slaves was before the nation, it might have left them in
a condition of aliens; or established them as wards of the Govern-
ment, like the Indian tribes, and thus retained jurisdiction for the
nation over them; or it might, as it did, give them citizenship. It
chose the latter. By the Fourteenth Amendment, it made citizens
of all born within the limits of the United States, and subject to its
jurisdiction. By the Fifteenth, it prohibited any State from denying
the right of suffrage, on account of color, race, or previous condition
of servitude; and by the Thirteenth, it forbade slavery or involun-
tary servitude anywhere within the limits of the land .... Congress
gave them citizenship, doubtless believing that thereby, in the long-
run, their best interests would be subserved, they taking their chances
with other citizens in the States where they should make their homes.
For these reasons, we think that the United States Court had no
jurisdiction of the wrong charged in the indictment."

Offenses Against Franchise, etc. 437

District Judge Jones, in United States vs. Powell, 151
Federal, 648, follows the Hodges case, and sustained a de-
murrer to an indictment which charged the defendant,
with one Riggins, ex parte Riggins, 134 Federal, 404;
Riggins vs. United States, 199 U. S., 546, 50 Law Ed.,
303, with conspiring to injure, etc., a negro citizen in the
enjoyment of certain rights, to wit, by depriving him
of the right of trial, etc., by taking him from the sheriff,
who had him in custody, and mobbing him. Judge Jones,
in the Riggins case, 134 Federal, 404, decided the ques-
tion on demurrer differently from the way he decided in
the Powell case; but between the time of the rendition
of the Riggins opinion and the rendition of the Powell
opinion, the Supreme Court had spoken in the Hodges
case, cited supra.

Voting. — In United States vs. Lackey, District Judge
Evans overruled demurrers to an indictment which was
brought under this section for conspiring to intimidate
and prevent negro citizens from exercising the right to
vote; and he j)laced his decision upon the guarantee of
the Fifteenth Amendment.

The right to vote for a United States representative is
secured by the United States constitution and is within
the statute under discussion. Felix vs. U. S., 186 Federal,
685. A conspiracy to deprive colored voters of their right
to vote for a member of Congress. U. S. vs. Stone, 197
Federal, 483. A conspiracy to deprive one of his right to
vote at a Congressional election is "injuring" him within
the meaning of the statute. U. S. vs. Stone, 188 Federal,
836, which is the same case as 197 Federal cited above
except that in the 188th report the Court is overruling
the demurrer to the indictment and in the 197th the
Court is imposing the punishment.

In the Indiana case, United States vs. Aczel et al., 219
Federal, 917, the Court held on demurrer that under sec-
tion 2 of Article 1 of the Constitution providing that the
House of Representatives shall be composed of members
chosen by the people of the several states and the electors
in each state shall have the qualifications of the electors
of the most numerous branch of the State Legislature,

438 . Federal Criminal Law Procedure.

and Constitutional Amendment 17 making similar pro-
visions for United States senators, and the Act of June 4,
1914, 38 Stats. 384, providing for the election of United
States senators by direct vote of the people, the election
to be conducted as near as may be in accordance with
the laws of the state regulating the nomination and elec-
tion of representatives, the right to vote for representa-
tives in Congress and United States senators, and to
serve as members of the election boards where such rep-
resentatives or senator is to be elected, are rights secured
by the Constitution and laws of the United States within
the provision of Section 19 of the Criminal Code.

Right to Inform of Violations of the Law. — It is the
right and privilege of one, in return for the protection
enjoyed under the Constitution and laws of the United
States, to aid in the execution of the laws, by giving
information to the proper authorities of violations of
those laws. Conspiracy to injure one who had given in-
formation about violations of the Revenue Laws, is an
offense under this Section. 1 Federal Stat., 803; Motes
vs. United States, 178 U. S., 458; in re Quarrels, 158 U.
S., 532. A conspiracy to intimidate a citizen of African
descent in the exercise of his right to vote for a Member
of Congress and in the execution of that conspiracy, beat-
ing and maltreating him, is an offense under Section
5520. First Federal Statutes Annotated, 803; ex parte
Yarbrough, 110 U. S., 651; U. S. vs. Butler, 1 Hughes, 457.

Right of One in Custody to Protection. — The leading
case upon this question is the case of Logan vs. United
States, 144 U. S., 263, where it was decided that a person
in the custody of a United States Marshal, has the right
to be protected against unlawful interference; and the
conspiracy to deprive him of such right is an offense
under this section.

Other Cases. — Cases not cited in the above discussion,
but which bear upon various phases of the statute under
consideration are the following: Strauder vs. West Vir-
ginia, 100 U. S., 303; ex parte Virginia, 100 U. S., 339;
ex parte Siebold, 100 U. S., 371; ex parte Clark, 100 U.
S., 399; Neal vs. Delaware, 103 U. S., 370; United States
vs. Harris, 106 U. S., 629; Civil Rights cases, 109 U. S.,

Offenses Against Franchise, etc. 439

17; Baldwin vs. Frank, 120 U. S., 678; in re Coy, 127
U. S., 731; in re Neagel, 135 U. S., 1; in re Lancaster, 137
U. S., 393; Brown vs. United States, 150 U. S., 93; in re
Quarrels, 158 U. S., 532; Rakes vs. U. S., 212 U. S., 55;
Le Grand vs. U. S., 12 Federal, 577; in re Baldwin, 27
Federal, 187; U. S., vs. Lancaster, 44 Federal, 885; U.
S. vs. Sanges, 48 Federal, 78; U. S. vs. Patrick, 53 Fed-
eral, 356; also 54 Federal, 338.

It may, therefore, be stated with comparative satisfac-
tion and confidence in the ability to demonstrate its
correctness from the above decisions, that the Federal
Government has no jurisdiction to prosecute under these
statutes for offenses which interfere with the privileges
and immunities of citizens of the several States. The
difficulty seems to be to determine just what are such
privileges and immunities. "They are," in the language
of Mr. Justice Washington, which is approved in the
Slaughter-house Cases, cited supra, "such privileges and
immunities as are fundamental; which belong of right
to the citizens of all free Governments, and which have,
at all times, been enjoyed by citizens of the several States
which compose this Union, from the time of their be-
coming free, independent, and sovereign. What these
fundamental principles are, it would be more tedious than
difficult to enumerate. They may all, however, be com-
prehended under the following general heads: protection
by the Government, with the right to acquire and possess
property of every kind, and to pursue and obtain
happiness and safety, subject, nevertheless, to such re-
straints as the Government may prescribe for the general
good of the whole." On the other hand, the Federal
Government, under the above statutes, will protect the
person in the right to vote for any Federal official; will
protect a person in his right to give information of the
violation of Federal laws; will protect the Federal Gov-
ernment, and all of its agencies, persons, and entire of-
ficialdom; will protect the person of any prisoner that
may be in the hands of its officers; and will protect its
officers in the execution of any and all of their functions ;
and will, in the enforcement of the Thirteenth Amend-
ment, punish all sorts of peonage and enforced labor.

44U Federal Criminal Law Procedure.

Any mob, however, or aggregation of private individ-
uals that act independently of a State or Government
that attacks the negro race or other races, commit no
Federaly offense. Such offenders are to be punished by
the laws of the State.

§ 250. Other Crimes Committed While Violating the
Preceding Section. — Section 5509 of the old 1878 Statutes
reads as follows:

"Sec. 5509. If in the act of violating any provision in either of
the two preceding sections any other felony or misdemeanor be com-
mitted, the offender shall be punished for the same with such punish-
ment as is attached to such felony or misdemeanor by the laws of

the State in which the offense is committed."

The section does not embrace any felony or misde-
meanor against a State, of which, prior to the trial in the
Federal Court of the Federal offense, the defendants had
been lawfully acquitted by a State Court having full
jurisdictoin. As the Federal Court accepted the judgment
of a State Court, construing the meaning and scope of
the State enactment whether civil or criminal, it should
also accept the judgment of a State Court based on a
verdict of acquittal of a crime against the State. United
States vs. Mason, 213 U. S., 115.

§ 251. Depriving Persons of Civil Rights Under Color
of State Law. — Section 5510 of the old statutes becomes
Section 20 of the new Code, which is in the following
words:

"Sec. 20. Whoever, under color of any law, statute, ordinance,
regulation, or custom, wilfully subjects, or causes to be subjected, any
inhabitant of any State, Territory, or District to the deprivation of
any rights, privileges, or immunities secured or protected by the
Constitution and laws of the United States, or to different punish-
ments, pains, or penalties, on account of such inhabitant being an
alien, or by reason of his color, or race, than are prescribed for the
punishment of citizens, shall be fined not more than one thousand
dollars, or imprisoned not more than one year, or both."

The Court, in charging the jury in United States vs.
Buntin, 10 Federal, 730, which was a prosecution under
this section, said, "He, the child, must have been ex-
cluded under some color of law, statute, ordinance, reg-

Offenses Against Franchise, etc. 441

ulation, or custom of the State, and on account of his
color." See also Civil Rights Cases, 109 U. S., 16.

§ 252. Conspiracy to Prevent Person from Holding
Office or Officer from Performing His Duty Under United
States, Etc. — Section 5518 of the old Statutes becomes
Section 21 of the new Code, as follows:

"Sec. 21. If two or more persons in any State, Territory, or Dis-
trict conspire to prevent, by force, intimidation, or threat, any person
from accepting or holding any office, trust, or place of confidence un-
der the United States, or from discharging any duties thereof; or
to induce by like means any officer of the United States to leave any
State, Territory, District, or place, where his duties as an officer
are required to be performed, or to injure him in his person or prop-
erty on account of his lawful discharge of the duties of his office,
or while engaged in the lawful discharge thereof, or to injure his
property so as to molest, interrupt, hinder, or impede him in the
discharge of his official duties, each of such persons shall be fined
not more than five thousand dollars, or imprisoned not more than
six years, or both."

§ 253. Unlawful Presence of Troops at Elections.-

Section 22 of the new Code takes the place of old Section
5528, and is in the following words:

"Sec. 22. Every officer of the Army or Navy, or other person in
the civil, military, or naval service of the United States, who orders,
brings, keeps, or has under his authority or control any troops or
armed men at any place where a general or special election is held
in any State, unless such force be necessary to repel armed enemies
of the United States, shall be fined not more than five thousand dollars
and imprisoned not more than five years."

§ 254. Intimidation of Voters by Officers, Etc., of
Army and Navy. — Section 23 of the new Code displaces
old Section 5529, and is in the following words:

"Sec. 23. Every officer or other person in the military or naval
service of the United States who, by force, threat, intimidation, order,
advice, or otherwise, prevents, or attempts to prevent, any qualified
voter of any State from freely exercising the right of suffrage at any
general or special election in such State shall be fined not more than
five thousand dollars and imprisoned not more than five years."

§ 255. Officers of Army or Navy Prescribing Quali-
fications of Voters. — Section 24 of the new Code takes the
place of old Statute 5530, and is as follows:

"Sec. 24. Every officer of the Army or Navy who prescribes or fixes,
or attempts to prescribe or fix, whether by proclamation, order, or

442 Federal Criminal Law Procedure.

otherwise, the qualifications of voters at any election in any State
shall be punished as provided in the preceding section."

§ 256. Officers, Etc., of Army or Navy Interfering
with Officers of Election, Etc. — Section 25 of the new
Code takes the place of Section 5531, and is as follows:

"Sec. 25. Every officer or other person in the military or naval
service of the United States who, by force, threat, intimidation, order,
or otherwise, compels, or attempts to compel, any officer holding an
election in any State to receive a vote from a person not legally
qualified to vote, or who imposes, or attempts to impose, any regula-
tions for conducting any general or special election in a State different
from those prescribed by law, or who interferes in any manner with
any officer of an election in the discharge of his duty, shall be punish-
ed as provided in section twenty-three."

§ 257. Persons Disqualified from Holding Office;
When Soldiers, Etc., May Vote.— Old Section 5532 be-
comes Section 26 of the new Code, as follows:

"Sec. 26. Every person convicted of any offense defined in the
four preceding sections shall, in addition to the punishment therein
prescribed, be disqualified from holding any office of honor, profit, or
trust under the United States; but nothing therein shall be construed
to prevent any officer, soldier, sailor, or marine from exercising the
right of suffrage in any election district to which he may belong, if
otherwise qualified according to the laws of the State in which he of-
fers to vote."

Sec. 257 a. Primary Elections.

Primary elections are not within the protection of the
federal statute as framed at the time of this writing, U.
S. vs. 0 'Toole, 236 F. 993.

Primary elections are not under the provisions of the
corrupt practice act, of June 25, 1910, as amended August
19, 1911, see Gradwell vs. U. S., 243 U. S., 476, which also
gives form of indictment.

In the case of Newberry vs. U. S., 41 Sup. Ct. Rep. 469,
it was held that the corrupt practice act, as applied to
party primaries, was not within the power conferred on
congress by the constitution in Art. 1, Sec. 4, to regulate
the manner of holding elections, or within the power
conferred by Art. 1, Sec. 8, to make all laws necessary
and proper for carrying into effect the powers granted
by the constitution.

CHAPTER XII.

OFFENSES AGAINST FOREIGN AND INTERSTATE COMMERCE

§ 258. Dynamite, Etc.. not to be Carried on Vessels or Vehicles Carry-
ing Passengers for Hire.
258a. Explosives.

259. Interstate Commerce Commission to Make Regulations for

Transportation of Explosives.

260. Liquid Nitro-Glycerine, etc., Not to be Carried on Certain

Vessels or Vehicles.

261. Marking of Packages of Explosives — Deceptive Marking.

262. Death or Bodily Injury Caused by Such Transportation.

263. Importation and Transportation of Lottery Tickets, Etc.

264. Interstate Shipment of Intoxicating Liquors, Delivery to be

Made Only to Bona Fide Consignee.

265. Common Carrier, Etc., not to Collect Purchase Price of Inter-

state Shipment of Intoxicating Liquors.
265a. Decision Under Last Statute.

266. Packages Containing Intoxicating Liquors Shipped in Interstate

Commerce to be Marked as Such.

267. Importation of Certain Wild Animals, Birds, and Reptiles For-

bidden.
267a. Migratory Game — Birds.

268. Transportation of Prohibited Animals.
268a. Constitutionality of Statute.

269. Marking of Packages.

270. Penalty for Violation of Preceding Sections.

271. Depositing Obscene Books, Etc., with Common Carrier.
271a. The Statute is Constitutional.

271b. Anti-Pass Law.

271c. Theft of Goods in Interstate Commerce.

271c.cc. Theft and Inter-State Transportation of Automobile.
271d. Cotton Future Contracts.

271e. Opium or Coco Leaves, Their Salts, Derivatives or Prepara-
tions.
271f. Interstate Commerce — Regulation Thereof.

In Chapter IX. of the 1910 Code, there are fourteen sec-
tions which are created offenses by reason of the power
of the general Government to supervise interstate and
international commerce.

§ 258. Dynamite, Etc., Not to be Carried on Vessels
or Vehicles Carrying Passengers for Hire. — Sections 4278
and 5353 of the old Statutes are shorn of their cumber-

(443)

444 Federal Criminal Law Procedure.

someness and broadened by new Section 232, in the fol-
lowing words:

"Sec. 232. It shall be unlawful to transport, carry, or convey, any
dynamite, gunpowder, or other explosive, between a place in a foreign
country and a place within or subject to the jurisdiction of the United
States, or between a place in any State, Territory, or District of the
United States, or place noncontiguous to but subject to the juris-
diction thereof, and a place in any other State, Territory, or District
of the United States, or place noncontiguous to but subject to the
jurisdiction thereof, on any vessel or vehicle of any description operat-
ed by a common carrier, which vessel or vehicle is carrying passengers
for hire: Provided, That it shall be lawful to transport on any such
vessel or vehicle small arms ammunition in any quantity, and such
fuses, torpedoes, rockets, or other signal devices, as may be essential
to promote safety in operation, and properly packed and marked
samples of explosives for laboratory examination, not exceeding a net
weight of one-half pound each, and not exceeding twenty samples at
one time in a single vessel or vehicle; but such samples shall not be
carried in any part of a vessel or vehicle which is intended for the
transportation of passengers for hire: Provided further, That nothing
in this section shall be construed to prevent the transportation of
military or naval forces with their accompanying munitions of war on
passenger equipment vessels or vehicles."

The punishment for the violation of this section is de-
termined in Section 235, wherein Congress provides, that,
"Whoever shall knowingly violate or cause to be violated

any provision of this section .... shall be fined not

more than two thousand dollars, or imprisoned not more
than eighteen months, or both."

§ 258a. Explosives. — Labor leaders who conspired to
transport explosives in violation of the above section
were convicted and their sentences affirmed in Ryan vs.
U. S., 216 Federal, 213.

Sec. 258 b. Explosives Continued.

Since the ground of the offense of the foregoing statute
for the transportation of the enumerated explosives on
vessels or vehicles operated by a common carrier, and
carrying passengers have held, it is no excuse that a man
so carrying an explosive was an officer of some foreign
country, Horn vs. Mitchell, 232 F. 819.

By amendment of Mar. 4, 1921, many explosives are
added to those mentioned in the original sections and

Offenses Against Foeeign & Interstate Commerce. 445

also adds the authority for regulation by the interstate
commerce commission.

§ 259. Interstate Commerce Commission to Make
Regulations for Transportation of Explosives. — Old Sec-
tions 4279 and 5355 are amplified and added to, and be-
come Section 233 in the New Code, authorizing the Inter-
state Commerce Commission to formulate regulations, in
the following words:

"Sec. 233. The Interstate Commerce Commission shall formulate
regulations for the safe transportation of explosives, which shall be
binding upon all common carriers engaged in interstate or foreign
commerce which transport explosives by land. Said commission, of
its own motion, or upon application made by any interested party, may
make changes or modifications in such regulations, made desirable by
new information or altered conditions. Such regulations shall be in
accord with the best known practicable means for securing safety in
transit, covering the packing, marking, loading, handling while in
transit, and the precautions necessary to determine whether the ma-
terial when offered is in proper condition to transport. Such regula-
tions, as well as all changes or modifications thereof, shall take ef-
fect ninety days after their formulation and publication by said com-
mission and shall be in effect until reversed, set aside, or modified."

§ 260. Liquid Nitroglycerine, Etc., Not to be Carried
on Certain Vessels and Vehicles. — The Act of May 30,
1908, 35 Statute at Large, 555, becomes Section 234 of the
new Code, as follows:

"Sec. 234. It shall be unlawful to transport, carry, or convey, liquid
nitroglycerine, fulminate in bulk or in dry condition, or other like
explosives, between a place in a foreign country and a place within
or subject to the jurisdiction of the United States, or between a place in
one State, Territory, or District of the United States, or place non-
contiguous to but subject to the jurisdiction thereof, and a place in
any other State, Territory, or District of the United States, or place
non-contiguous to but subject to the jurisdiction thereof, on any vessel
or vehicle of any description operated by a common carrier in the
transportation of passengers or articles of commerce by land or water."

This section seems to prohibit the transportation by
any method, by any common carrier that carries pas-
sengers or articles of commerce. It will be noted, how-
ever, that this section (234) and Section 233, above quot-
ed, and Section 235, hereinaftr set out, seem to have

446 Federal Criminal, Law Procedure.

been repealed by the schedule in Section 341; and these
three sections do not seem to have been in the bill, as
reported to Congress by the Committtee on Revision, but
because of uncertainty, they are quoted.

§ 261. Marking of Packages of Explosives; Deceptive
Marking. — Section 235 of the new Code reads as follows:

"Sec. 235. Every package containing explosives or other dangerous
articles when presented to a common carrier for shipment shall have
plainly marked on the outside thereof the contents thereof; and it
shall be unlawful for any person to deliver, or cause to be delivered to
any common carrier engaged in interstate or foreign commerce by
land or water, for interstate or foreign transportation, or to carry
upon any vessel or vehicle engaged in interstate or foreign transporta-
tion, any explosive, or other dangerous article, under any false or de-
ceptive marking, description, invoice, shipping order, or other de-
claration, or without informing the agent of such carrier of the true
character thereof, at or before the time such delivery or carriage is
made. Whoever shall knowingly violate, or cause to be violated, any
provision of this section, or of the three sections last preceding,
or any regulation made by the Interstate Commerce Commission in
pursuance thereof, shall be fined not more than two thousand dollars,
or imprisoned not more than eighteen months, or both."

It will be borne in mind that this section, as well as 234
and 233, are probably repealed by Section 341 of the new
Code as presented by the Committee on Revision.

§ 262. Death or Bodily Injury Caused by Such Trans-
portation.— Section 5354 of the old statutes becomes, with
some changes, Section 236 of the new Code, as follows:

'Sec. 236. When the death or bodily injury of any person is caused
by the explosion of any article named in the four sections last pre-
ceding, while the same is being placed upon any vessel or vehicle to
ue transported in violation thereof, or while the same is being so
iransported, or while the same is being removed from such vessel or
vehicle, the person knowingly placing, or aiding or permitting the
placing, of such articles upon any such vessel or vehicle, to be so
transported, shall be imprisoned not more than ten years."

The imprisonment in the old statute was for any period
not less than two years.

§ 263. Importation and Transportation of Lottery
Tickets, Etc. — The defects and limitations in the Act of
March 2, 1895, 28 Statute at Large, 963, Second Supple-

Offenses Against Foreign & Interstate Commerce. 447

inent, 435, are remedied by Section 237 of the new Code,
which is as follows:

"Sec. 237. Whoever shall bring or cause to be brought into the
United States or any place subject to the jurisdiction thereof, from any
foreign country, for the purpose of disposing of the same, any paper,
certificate, or instrument purporting to be or to represent a ticket,
chance, share, or interest in or dependent upon the event of a lottery,
gift enterprise, or similar scheme, offering prizes dependent in whole
or in part upon lot or chance, or any advertisement of, or list of the
prizes drawn or awarded by means of, any such lottery, gift enterprise,
or similar scheme; or shall therein knowingly deposit or cause to be
deposited with any express company or other common carrier for car-
riage, or shall carry, from one State, Territory, or District of the
United States, or place non-contiguous to but subject to the jurisdiction
thereof, to any other State, Territory, or District of the United States,
or place non-contiguous to but subject to the jurisdiction thereof, or
from any place in or subject to the jurisdiction of the United States
through a foreign country to any place in or subject to the jurisdiction
thereof, or from any place in or subject to the jurisdiction of the
United States to a foreign country, any paper, certificate, or instru-
ment purporting to be or to represent a ticket, chance, share, or in-
terest in or dependent upon, the event of any such lottery, gift en-
terprise, or similar scheme, or any advertisement of, or list of the
prizes drawn or awarded by means of, any such lottery, gift enterprise,
or similar scheme, or shall knowingly take or receive, or cause to be
taken or received, any such paper, certificate, instrument, advertise-
ment, or list so brought, deposited, or transported, shall, for the first
offense, be fined not more than one thousand dollars, or imprisoned not
more than two years, or both; and for any subsequent offense shall
be imprisoned not more than two years."

This statute meets the criticisms leveled at the former
statute by Circuit Judge Jenkins, in the 95 Federal, 453,
Champion vs. Ames, and by Judge McDowell, in 125 Fed-
eral, 616, United States vs. Whelpley, wherein each held
that the old statute did not prevent or punish the sending
of lottery tickets from a State to a Territory, etc., or
from a Territory to a State; the language being "from
one State to another. " This new statute covers the entire
ground, and protects Territories*, Provisional Govern-
ments, foreign countries, States, and non-contiguous ter-
ritory subject to the jurisdiction of the United States. This
limitation has been held to be Constitutional, in France
vs. United States, 164 U. S., 676; Champion vs. Ames,

448 Federal Criminal Law Procedure.

188 U. 8., 321; and Francis vs. United States, 188 U. S.,
375.

In France vs. United States, 164 U. S., 676, 41 Law Ed.,
595, the Supreme Court held that a paper that contains
nothing but figures which relate to a drawing already
completed, is not a paper certificate or instrument pur-
porting to be, or representing, a ticket, chance, share, or
interest, in a lottery, which the Act of Congress of 1895,
Chapter 191, makes it unlawful to bring into the United
States, or deposit in the mails, or carry from one State to
another. Such statute refers only to a paper, which de-
pends upon a lottery, the drawing of which has not yet
taken place.

In Champion vs. Ames, 188 U. S., 321, 47 Law Ed., 496,
the Supreme Court held that the carriage of lottery tick-
ets from one State to another, by an express company,
engaged in carrying freight and packages from State to
State, is interstate commerce, which Congress, under its
power to regulate, may prohibit by making it an offense
against the United States to cause such tickets to be so
carried.

In Francis vs. United States, 188 U. S., 375, 47 Law
Ed., 510, the Supreme Court held that policy slips, writ-
ten by a customer to indicate his choice of numbers, and
delivered by him to an agent of the policy game, to be
forwarded by him to headquarters in another State, are
not within this Act. Gathering the facts from the opin-
ion, they show, in substance, that the policy game, the
lottery in question, had its headquarters in Ohio, and
agencies in different States. A person wishing to take a
chance went to one of these agencies (in this case, in Ken-
tucky), selected three or more numbers, wrote them on a
slip, and handed the slip to the agent (in this case, to
the defendant HofT) paying the price of the chance at
the same time, and keeping a duplicate, which was the
purchaser's voucher for his selection. The slip was then
taken by the defendant Edgar, to be carried to the prin-
cipal office, which was, it will be remembered, in Ohio;
where afterwards, in the regular course, there was a
drawing by the defendant Francis. Thus, the carriage

Offenses Against Foreign & Interstate Commerce. 449

from Kentucky to Ohio, or from one State to another,
relied upon as the object of the conspiracy, and as the
overt act in pursuance of the conspiracy, was the carriage
by Edgar of slips delivered to Hoff by the person wishing
to take a chance, as above described. It will thus be
noticed that the slips were at home, as between the pur-
chaser and the lottery, when put into Hoff's hands in
Kentucky. They had reached their final destination in
point of law, and their later movements were internal
circulation within the sphere of the lottery company's
possession; and the Supreme Court said:

"Therefore, the question is suggested whether the carriage of a
paper of any sort by its owner, or the owner's servant, properly so-
called, with no view of a later change of possession, can be commerce,
even when the carriage is in the aid of some business or traffic. The
case is different from one where, the carriage being done by an in-
dependent carrier, it is commerce merely by reason of the business of
carriage."

This question, however, the Supreme Court did not see
fit to answer, for the case went off upon another ground,
to wit, upon the ground that the papers did not represent
a ticket or interest in a lottery

"We assume, for purposes of decision, that the papers kept by the
purchasers were tickets, or did represent an interest in a lottery; but
these papers did not leave Kentucky."

§ 264. Interstate Shipment of Intoxicating Liquors;
Delivery to be Made Only to Bona Fide Consignee.-
Brand new legislation is Section 238 of the new Code,
which reads as follows:

"Sec. 238. Any officer, agent, or employee of any railroad com-
pany, express company, or other common carrier, who shall knowingly
deliver or cause to be delivered to any person other than the person
to whom it has been consigned, unless upon the written order in each
instance of the bona fide consignee, or to any fictitious person, or to
any person under a fictitious name, any spirituous, vinous, malted, fer-
mented, or other intoxicating liquor of any kind which has been
shipped from one State, Territory, or District of the United States, or
place noncontiguous to but subject to the jurisdiction thereof, into any
other State, Territory, or District of the United States, or place non-con-
tiguous to but subject to the jurisdiction thereof, or from any foreign
29

450 Federal Criminal Law Procedure.

country into any State, Territory, or District of the United States, or
place non-contiguous to but subject to the jurisdiction thereof, shall
be fined not more than five thousand dollars, or imprisoned not more
than two years, or both."

This section, it will be noticed, contains three divisions:
first, the liquor must be delivered to the one to whom con-
signed; second, the liquor must not be delivered to any
fictitious person; third, the liquor must not be delivered
to any person under a fictitious name. Of course, if the
liquor be consigned to a bona fide consignee, such con-
signee may give a written order to another person to re-
ceive the liquor.

Sec. 264 a. Interstate Shipment of Intoxicating Liq-
uor, Continued.

The Court of Appeals for the 7th circuit in Hanini vs.
Chicago Railway Co. 243 F. 143, held that the Webb-
Kenyon act of Mar. 1, 1913, which prohibits the trans-
position of intoxicating liquor from one state into an-
other, which is intended to be received, possessed, sold,
or used in violation of any law of such state, does not
simply forbid the introduction of liquor into a state for
a prohibited use, but takes the protection of interstate
commerce away from all receipt and possession of liquor
prohibited by state law.

The Reed Amendment, Mar. 3, 1917, Compiled Stat-
utes, Sec. 8739 a provides, "whoever shall order, pur-
chase, or cause intoxicating liquors to be transported in
interstate commerce, except for scientific, sacramental,
medicinal and mechanical purposes, into any state or ter-
ritory the laws of which state or territory prohibit the
manufacture or sale therein of intoxicating liquors for
beverage purposes shall be punished, as aforesaid; Pro-
vided, that nothing herein, shall authorize the shipment
of liquor into any state contrary to the laws of such
state."

The punishment for the violation of the section is a
fine of not more than a thousand dollars or imprisonment
not more than six months or both; and for any subse-
quent offense shall be imprisoned not more than one year,
Sec, 9915, 1919, Barnes Code,

Offenses Against Foreign & Interstate Commerce. 451

An act was passed August 1890, providing thai intoxi-
cating liquors transported into a state shall be subject
to the state laws; by Act of Mar. 1, 1913, congress de-
clared a prohibition, without penalty, to the shipment of
intoxicating liquor into a state in violation of its law;
and on October 3, 1917, the transportaton of distilled
spirits, with certain exceptions, was forbidden. These
acts are shown at Sec. 8350, 8351 and 8353 of Barnes 1919
Fed. Code.

§ 265. Common Carrier, Etc., Not to Collect Purchase
Price of Interstate Shipment of Intoxicating Liquors. —
All railroads and express companies, common carriers, or
other persons engaged in interstate commerce, cannot,
in any way, aid in the transaction of the so-called C. 0. D.
liquor business, since the passage of Section 239 of the
new Code, which is new legislation, in the following
words :

"Sec. 239. Any railroad company, express company, or other com-
mon carrier, or any other person who, in connection with the trans-
portation of any spirituous, vinous, malted, fermented, or other in-
toxicating liquor of any kind, from one State, Territory, or District
of the United States, or place non-contiguous to but subject to the
jurisdiction thereof, into any other State, Territory, or District of the
United States, or place non-contiguous to but subject to the jurisdic-
tion thereof, or from any foreign country into any State, Territory, or
District of the United States, or' place non-contiguous to but subject
to the jurisdiction thereof, shall collect the purchase price or any part
thereof, before, on, or after delivery, from the consignee, or from any
other person, or shall in any manner act as the agent of the buyer or
seller of any such liquor, for the purpose of buying or selling or com-
pleting the sale thereof, saving only in the actual transportation and
delivery of the same, shall be fined not more than five thousand dol-
lars."

It will be noted that no part of the purchase price shall
be collected by the carrier from the consignee before de-
livery, at the time of delivery, or after delivery; nor can
such collection be made from any other person. It will
also be noted that the carrier cannot, in any manner, act
as the agent of the buyer or seller of any such liquor,
for the purpose of buying or selling, or completing the

452 Federal Criminal Law. Procedure.

sale. In other words, the carrier must engage only in
the transportation and delivery of the same.

§ 265a. Decisions. — This statute creates a new crime
and prescribes a punishment for an act and series of acts
that were not theretofore inhibited by any law. Com-
plaints were made that shipments of liquor would be
made from one State to another, in which the sale of
liquor was prohibited, and that the bill of lading would
be attached to a draft, and forwarded through banks for
collection, the consignee to secure the bill of lading upon
payment of the draft. The scope of the statute and the
desire to remedy the evil occasioned a diversity of opinion
among the Courts. The case of Danciger vs. Stone, de-
cided by Judge Campbell in 188 Federal, 511, held that
under the foregoing state of facts the bank situated in
the dry territory was not liable to prosecution under this
Statute, while Judge Amidon held in U. S. vs. First Na-
tional Bank of Anamoose, 190 Federal, 336, that under
a state of facts which is substantially mentioned, the
collecting bank would be liable to prosecution and would
be guilty of a violation of the statute. Judge Amidou re-
views in his opinion the anti-liquor agitation and the evil
that the law was intended to remedy. After these two
nisi prius decisions the Circuit Court of Appeals for the
Eighth Circuit, speaking through Judge Sanborn in First
National Bank of Anamoose vs. U. S., 206 Federal, 374,
in reversing Judge Amidon 's decision, held that a collec-
tion by a bank of a sight draft for the purchase price of
liquor transported in interstate commerce and the de-
livery to the consignee of a bill of lading attached to
the draft, the possession of which bill was necessary to
enable the consignee to obtain a delivery of the liquor,
does not subject the bank to find under Section 239, and
thus the old criminal doctrine that a case must be a strong
one indeed which would justify a Court in departing
from the plain meaning of words in search of an intention
which the words themselves do not suggest was again
christened.

Sec. 2.65 b. Common Carrier, etc., Not to Collect Pur-
chase Price, etc., Continued.

Offenses Against Foreign & Interstate Commerce. 453

Danciger vs. Cooley, U. S. Sup. Ct. Jan. 7, 1919; the
words "any other person" are also construed in the
above case to mean "any one."

All laws are in effect prohibiting- the introduction of
liquor into the Indian Territory, viz., the Act of 189.1,
1917 and 1918, U. S. vs. Luther/ 260 F. 579.

§ 266. Packages Containing Intoxicating Liquors
Shipped in Interstate Commerce to be Marked as Such. —
Other new legislation upon the subject of interstate car-
riage of intoxicating liquors is Section 240, which reads
as follows:

"Sec. 240. Whoever shall knowingly ship or cause to be shipped,
from one State, Territory, or District of the United States, or place
non-contiguous to but subject to the jurisdiction thereof, into any
other State, Territory, or District of the United States, or place non-
contiguous to but subject to the jurisdiction thereof, or from any
foreign country into any State, Territory, or District of the United
States, or place non-contiguous to but subject to the jurisdiction there-
of, any package of or package containing any spirituous, vinous, malted,
fermented, or other intoxicating liquor of any kind, unless such
package be so labeled on the outside cover as to plainly show the name
of the consignee, the nature of its contents, and the quantity contained
therein, shall be fined not more than five thousand dollars; and such
liquor shall be forfeited to the United States, and may be seized and
condemned by like proceedings as those provided by law for the
seizure and forfeiture of property imported into the United States
contrary to law."

While Sections 238 and 239 fix penalties for certain
transgressions by the carrier, Section 240 creates a new
offense for the shipper and does not relate, in any sense,
to the carrier. Under other internal revenue decisions,
the marking and branding of this Section will be con-
strued to mean upon the outside of the package, so as to
be plainly seen at all times. Such mark or label must
show the name of the consignee, the nature of the con-
tents of the package, and the quantity of the contents.

Sec. 266 a. Packages Continued — Intoxicating Liq-
uors Shipped in Interstate Commerce, How Marked;
Continued.

The foregoing statute does not apply to the carriage
by automobile, One vs. U. S., 274 F. 99/

454 Federal Criminal Law Procedure.

Section 240 does not give the state the right to provide
such labelling, Chicago vs. Giles, 235 F. 804.

A shipment of a car load of liquor which is made up
of a great number of individual orders would have to
be broken up and delivered up to each consignee, Great
Northern vs. Rainier, 255 F. 762.

The venue for prosecutions under this act is held where
originated or where destined, U. S. vs. Freeman, U. S.
Sup. Ct. Oct. 1915.

The marks must not be covered with advertisements,
etc., U. S. vs. Company, 242 F. 536.

§ 267. Importation of Certain Wild Animals, Birds,
and Reptiles Forbidden.— The Act of May 25, 1900, 31
Statute at Large, 188, Second Supplement, 1174, becomes
Section 241 of the new Code, as follows:

"Sec. 241. The importation into the United States, or any Territory,
or District thereof, of the mongoose, the so-called "flying foxes" or fruit
bats, the English sparrow, the starling, and such other birds and
animals, as the Secretary of Agriculture may from time to time de-
clare to be injurious to the interests of agriculture or horticulture, is
hereby prohibited; and all such birds or animals shall, upon arrival at
any port of the United States, be destroyed or returned at the expense
of the owner. No person shall import into the United States or into
any Territory or District thereof, any foreign wild animal or bird,
except under special permit from the Secretary of Agriculture: Pro-
vided, that nothing in this section shall restrict the importation of
natural history speciments for museums or scientific collections, or of
certain cage birds, such as domesticated canaries, parrots, or such
other birds as the Secretary of Agriculture may designate The Secre-
tary of the Treasury is hereby authorized to make regulations for
carrying into effect the provisions of this section."

§ 267a. Migratory Game Birds. — Deemed under pro-
tection of the United States — closed seasons, etc. — "All
wild geese, wild swans, brant, wild ducks, snipe, plover,
woodcock, rail, wild pigeons, and all other migratory
game and insectivorous birds which in their northern
and southern migrations pass through or do not remain
permanently the entire year within the borders of any
state or territory, shall hereafter be deemed to be within
the custody and protection of the Government of the
United States, and shall not be destroyed or taken con-
trary to regulations hereinafter provided therefor.

Offenses Against Foreign & Interstate Commerce. 455

"The Department of Agriculture is hereby authorized
and directed to adopt suitable regulations to give effect
to the previous paragraph by prescribing and fixing
closed seasons, having due regard to the zones of tem-
perature, breeding habits, and times and line of migra-
tory flight, thereby enabling the department to select
and designate suitable districts for different portions of
the country, and it shall be unlawful to shoot or by any
device kill or seize and capture migratory birds within
the protection of this law during said closed seasons,
and any person who shall violate any of the provisions
or regulations of this law for the protection of migratory
birds shall be guilty of a misdemeanor and shall be fined
not more than $100 or imprisoned not more than 90 days,
or both, in the discretion of the Court.

"The Department of Agriculture, after the prepara-
tion of said regulations, shall cause the same to be made
public, and shall allow a period of three months in which
said regulations may be examined and considered before
final adoption, permitting, when deemed proper, public
hearings thereon, and after final adoption shall cause
the same to be engrossed and submitted to the President
of the United States for approval; Provided, however,
That nothing herein contained shall be deemed to affect
or interfere with the local laws of the states and terri-
tories for the protection of non-migratory game or other
birds resident and breeding within their borders, nor to
prevent the States and Territories from enacting laws
and regulations to promote and render efficient the regu-
lations of the Department of Agriculture provided under
this statute." This Act was passed on March 4, 1913, 37
Stats. L., 847.

Judge Trieber in United States vs. Schauver, 214 Fed-
eral, 154, held the Act to be unconstitutional. He holds
that migratory birds are not, when on their usual mi-
gration, the property of the United States within sub-
section 2 of Section 3 of Article 4 of the Federal Constitu-
tion which empowers Congress to adopt rules respecting
the territory or other property of the United States, but
they are the property of the States in their sovereign ca-

456 Federal Criminal Law Procedure.

parity, as the representatives and for the benefit of all
their people in common, and the Act protecting these
birds cannot be sustained as an exercise by Congress of
the right to adopt regulations for its property.

Sec. 267 b. Migratory Birds Continued.

The 1916 bird treaty, etc., is constitutional, U. S. vs.
Selkirk, 258 F. 775; also see same report at page 479;
also State vs. Holland, U. S. Sup. Ct. Apr. 1920, which
case gives a remedy for a state to test the federal act.

The act of July 3, 1918, is not retroactive, U. S.. vs.
Fuld Store Co., 262 F. 836.

The treat}^ of 1916, was again held constitutional in
U. S. vs. Rockefeller, 260 F. 346.

§ 268. Transportation of Prohibited Animals. — Tak-
en from the same Act, will be found the substance of
Section 242 of the new Code, which is in the following
words :

"Sec. 242. It shall be unlawful for any person to deliver to any
common carrier for transportation, or for any common carrier to
transport from any State, Territory, or District of the United States
to any other State, Territory, or District thereof, any foreign animals
or birds, the importation of which is prohibited, or the dead bodies or
parts thereof of any wild animals or birds, where such animals or
birds have been killed or shipped in violation of the laws of the State,
Territory, or District in which the same were killed, or from which
they were shipped: Provided, That nothing herein shall prevent the
transportation of any dead birds or animals killed during the season
when the same may be lawfully captured, and the export of which is
not prohibited by law in the State, Territory, or District in which the
same are captured or killed: Provided further, That nothing herein
shall prevent the importation, transportation, or sale of birds or birds'
plumage manufactured from the feathers of barnyard fowls."

The section, as it now exists, meets the objections, and
remedies the defects, noted in United States vs. Thomp-
son, 147 Federal, 637, wherein District Judge Amidon
discovered and held that the references to Section 1 of
the original Act was a clerical error, such section having
no relation to the subject matter, because Section 3 was
manifestly intended. Forms for indictment under the
section as it now exists will be found after noticing the
criticisms of the Courts thereon, at page 637 of the 147

Offenses Against Foreign & Interstate Commerce. 451

Federal, U. S. vs. Thompson, and page 428 of the' 115
Federal, United States vs. Smith. In the last ease, the
Court held that it was essential, to constitute the offense
under the provisions of the section, that the prohibited
game should either have been shipped, or delivered to
the carrier for shipment, and an indictment which
charged the defendant with intent to ship it by interstate
commerce, or having concealed the same in unmarked
packages for the purpose of such shipment, in evasion or
violation of the Act, without alleging delivery to a car-
rier, was insufficient.

§ 268a. Constitutionality of Statute. — This statute
has been held constitutional by the Circuit Court of Ap-
peals for the Eighth Circuit in Rupert vs. U. S., 181 Fed-
eral, 88, and in the same case it was determined that an
indictment which averred that quail which were killed in
the open season and which were delivered to a carrier for
transportation from Oklahoma into another State "with
intent and for the purpose of being shipped and trans-
ported out of Oklahoma" need not allege the months
in which the quail were killed. The Congress of the
United States has the constitutional right to prevent the
shipment in interstate commerce of game when such
shipments would be in violation of the laws of the state
in which such game was killed. Rupert vs. U. S., 181
Federal, 87. Quail or game belong to the State or rather
the people collectively thereof and are subject to the
local laws as to killing, and the times therefor, and the
shipment. Geer vs. Ct., 161 U. S., 519; Lawton vs. Steele,
152 U. S., 133; Rupert vs. U. S., 181 Federal, 87; U. S.
vs. Shauver, 214 Federal, 154. Act of March 4, 1913. as
to migratory birds held unconstitutional, U. S. vs. Mc-
Cullagh, 221 Federal, 288.

§ 269. Marking of Packages. — Section 243 of the new
Code was taken from the same Act of May 25, 1900, and
is as follows:

"Sec. 243. All packages containing the dead bodies, or the plumage,
or parts thereof, of game animals, or game or other wild birds, when
shipped in interstate or foreign commerce, shall be plainly and clearly
marked, so that the name and address of the shipper, and the nature

458 Federal Criminal Law Procedure.

of the contents may be readily ascertained on an inspection of the
outside of such package."

§ 270. Penalty for Violation of Preceding Sections.-

Section 244 of the new Code reads as follows:

"Sec. 244. For each evasion or violation of any provision of the
three sections last preceding, the shipper shall be fined not more than
two hundred dollars; the consignee knowingly receiving such articles
so shipped and transported in violation of said sections shall be fined
not more than two hundred dollars; and the carrier knowingly car-
rying or transporting the same in violation of said sections shall ba
fined not more than two hundred dollars."

§ 271. Depositing Obscene Books, Etc., with Common
Carrier. — Section 245 of the new Code is in the follow-
ing words:

"Sec. 245. Whoever shall bring or cause to be brought into the
United States or any place subject to the jurisdiction thereof, from
any foreign country, or shall therein knowingly deposit or cause to be
deposited with any express company or other common carrier, for
carriage from one State, Territory, or District of the United States,
or place non-contiguous to but subject to the jurisdiction thereof, to
any other State, Territory, or District of the United States, or place
non-contiguous to but subject to the jurisdiction thereof, or' from any
place in or subject to the jurisdiction of the United States through a
foreign country to any place in or subject to the jurisdiction thereof.
or from any place in or subject to the jurisdiction of the United States
to a foreign country, any obscene, lewd, or lascivious, or any filthy book,
pamphlet, picture, paper, letter, writing, print, or other matter of in-
decent character, or any drug, medicine, article, or thing designed,
adapted, or intended for preventing conception, or producing abortion,
•or for any indecent or immoral use, or any written or printed card,
letter, circular, book, pamphlet, advertisement, or notice of how, or of
whom, or by what means, any of the hereinbefore mentioned articles,
matters, or things may be obtained or made; or whoever shall know-
ingly take or cause to be taken from such express company or othor
common carrier any matter or thing the depositing of which for car-
riage is herein made unlawful, shall be fined not more than five thous-
and dollars, or imprisoned not more than five years, or both."

This section, it will be noticed, relates not to the use of
the Post-office establishment in the transmission of things
therein denounced, but to the use of a person or common
carrier, or express company.

Offenses Against Foreign & Interstate Commerce. 459

The meat of the statute is substantially the same as
Section 211 of the new Code, which relates to obscene
matter, etc., as being non-mailable, and which is de-
nounced in Section 211 of the new Code, heretofore
treated.

§ 271a. The Statute is Constitutional. — The power of
Congress to regulate the transportation or sending of mat-
ter or things or persons from one State to another, wheth-
er by a Federal utility or otherwise, is bevond dispute.
Lottery Cases 188 U. S., 321; Hoke vs. U. S., 227 U. S.,
308; Reid vs. Colorado, 187 U. S., 137; The Daniel Ball,
10 Wall., 557; Coe vs. Errol, 116 U. S., 517.

A demurrer to an indictment under the foregoing sec-
tion challenging the constitutionality of the statute was
overruled in Clark vs. U. S., 211 Federal, 916. In the
Clark case it was also determined that when the indict-
ment did not limit the charge to particular passages or
parts of a book, the defendants were entitled to have the
whole book introduced in evidence and considered by
the jury under proper instructions from the Court.

§ 271b. Anti-Pass Law.— The Act of June 29, 1906,
contains the following provision:

"No common carrier, subject to the provisions of this Act, shall
after January 1, 1907, directly or indirectly, issue or give any inter-
state free ticket, free pass, or free transportation for passengers, ex-
cept to its employees and their families, its officers, agents, surgeons,
physicians, and attorneys-at-law; to minister of religion, traveling secre-
taries of railroad, Young Men's Christian Association, inmates of
hospitals and charitable and eleemosynary institutions, and persons
exclusively engaged in charitable and eleemosynary work; to in-
digent, destitute and homeless persons, and to such persons when trans-
ferred by charitable societies or hospitals, and the necessary agents
employed in such transfer; to inmates of the National homes or State
homes for disabled volunteer soldiers, and of soldiers and sailors
homes, including those about to enter and those returning home after
discharge, and boards of managers of such homes; to necessary care-
takers of live stock, poultry and fruit; to employees on sleeping cars,
express cars, and to linemen of telegraphic and telephone companies;
to railway mail service employees, post-office inspectors, customs in-
spectors and immigrant inspectors; to newsboys on trains, baggage
agents, witnesses attending any legal investigation in which the com-
mon carrier is interested, persons injured in wrecks, and physicians
and nurses attending such persons; Provided, that this provision shall
not be construed to prohibit the interchange of passes for the officers,

460 Federal Criminal Law Procedure.

agents and employees of common carriers and their families; nor to
prohibit any common carrier from carrying passengers free with the
object of providing relief in cases of general epidemic, pestilence or
other calamitous visitation: Provided, further, that the term employees
as used in this paragraph shall include furloughed, pensioned and su-
perannuated employees, persons who have become disabled or infirm
in the service of any such common carrier, and the remains of a per-
son killed in the employment of a carrier, and ex-employees traveling
for the purpose of entering the service of any such common carrier;
and the term families as used in this paragraph shall include the
families of those persons named in this proviso, also the families of
persons killed while in the service of any such common carrier. Any
common carrier violating this provision shall be deemed guilty of a
misdemeanor, and for such offense, on conviction, snail pay to the
United States a penalty of not less than $100 nor more than $2,000,
and any person other than the persons excepted in this provision, who
uses any such interstate free ticket, free pass, or free transportation,
shall be subject to a like penalty."

35th Statute at Large, 60 page 256, 1909, Supplement
Federal Statutes, Annotated.

Manifestly, the provision applies to only such common
carriers as are included in the said Act.

It is not thought that the Section would justify the
prosecution of one who stole tickets or passes or other
transportation from a common carrier, and used the same,
for the reason that the word Such, in the latter portion of
the Act, evidently refers to the free ticket, free pass, or
free transportation issued or given directly or indirectly
bv a common carrier.

The Act does apply to one, who, having in his posses-
sion an interstate free ticket or pass issued by a railroad
company, sells it to another, knowing that he is not the
person named therein and is not entitled to ride thereon,
with the intent that he shall use it. U. S. vs. Martin, 176
Federal, 110.

§ 271c. Theft of Goods in Interstate Commerce. — The
Act of February 13, 1913, Chapter 50, 37th Statute at
Large, 670, page 203, 1914, Federal Statutes, Annotated,
provides as follows:

"That whoever shall unlawfully break the seal of any railroad car
containing interstate or foreign shipments of freight or express, or shall
enter in such car, with intent, in either case, to commit larceny there-

Offenses Against Foreign & Interstate Commerce. 461

in; or whoever shall steal or unlawfully take, carry away or conceal,
or by fraud or deception obtain from any railroad tar, station house,
platform, depot, steam boat, vessel or wharf, with intent to convert
to his own use, any goods or chattels, moving as, or which are a
part of, or which constitute an interstate or foreign shipment
of freight or express, or shall buy or receive or have in his possession
any such goods or chattels, knowing the same to have been stolen; or
whoever shall steal or shall unlawfully take, carry away, or by fraud
or deception obtain, with intent to convert to his own use, any bag-
gage which shall have come into the possession of any common car-
rier for transportation from one State or Territory, or the District of
Columbia, to another State or Territory, or the District of Columbia, or
to a foreign country, or from a foreign country to any State or Ter-
ritory, or the District of Columbia, or shall break into, steal, take,
carry away, or conceal any of the contents of such baggage, or shall
buy, receive, or have in his possession any such baggage, or any ar-
ticle therefrom of whatsoever nature, knowing the same to have been
stolen, shall in each case be fined not more than $5,000, or imprisoned
not more than ten years, or both, and prosecutions therefor may be
instituted in any District wherein the crime shall have been com-
mitted. The carrying or transporting of any such freight, express, bag-
gage, goods or chattels from one State or Territory, or the District of
Columbia, into another State or Territory, or the District of Columbia,
knowing the same to have been stolen, shall constitute a separate or-
fense, and subject the offender to the penalties above described for
unlawful taking, and the prosecutions therefor may be instituted in
any District into which said freight, express, baggage, goods or chat-
tels shall have been removed, or into which they shall have been
brought by such offender."

The next section provides that nothing contained in
the above section shall impair the jurisdiction of the
Courts of the several States, and also provides that a
judgment of conviction or acquittal in a State Court shall
be a bar to prosecution therefor in the United States
Courts. This Statute marks an outer limit of the juris-
diction of the Federal Government over interstate com-
merce, and the Courts, in enforcing the same, should ap-
ply all of the rigid rules of strict construction that have
been formulated in criminal cases. As a matter of fact,
thefts committed from interstate shipments are, as a
rule, small offenses, which should be cognizable solely
in the State Courts. There can, however, be no question
as to the constitutionality of this section, and while it is

462 Federal Criminal Law Procedure.

a useful statute, in many ways it is also a far-reach of
the Federal Government.

Sec. 271 c. c. Theft of Goods in Inter-State Commerce
Continued.

"Station house" means a railway house and not a
transfer station house, Beckerman vs. U. S., 267 F. 185.

For forging a bill of lading see the Act of Aug. 29,
1916, Jackson vs. U. S., 266 F. 770.

Allegation of ownership immaterial, Fleck vs. U. S.,
265 F. 617.

The following are cases under the foregoing statute;
IT. S. vs. Kambertz, 236 F. 378, holding prosecution may
be had in three different manners, United States has right
as bailee, U. S. vs. U. S., 262 F. 459; receiving stolen
property, U. S. vs. Le Fanti, 255 F. 210. The allegation
of ownership may be laid in the United States, under the
railway control statute of Mar. 21, 1918, U. S. vs. Kam-
bertz, 256 F. 247. One buys at his own peril if he knows
the goods are stolen, Grandi vs. U. S., 262 F. 123.

An indictment for receiving stolen property must al-
lege the intent "to convert to one's own use or gain,"
Cohn vs. U. S., 258 F. 353.

From one point in a state to another point in the same
state is .a violation, if the goods go out of the state en-
route, U. S. vs. Maynohan, 258 F. 529.

Receiving stolen goods, U. S. vs. Sullivan, 250 F. 623.

The statute applies even to carrier's own property
when in transit, Freidman vs. U. S., 233 F. 429.

As to allegation of ownership, receiving, etc., see Kasle
vs. U. S., 233 F. 878. The legislation is constitutional,
Morris vs. U. S., 229 F. 516; Block vs. U. S., 261 F. 321;
Pounds vs. U. S., 265 F. 242.

Knowledge of theft from interstate shipment is not es-
sential in receiving prosecution, Freedman vs. U. S., 274
F. 603; the larceny must be from the places stated in
the statute, 274 F. 596.

Goods shipped between points in the same state but
passing through another state are moving in interstate

Sec. 217. c. c. c. Theft of Automobile and Inter-
commerce, U. S. vs. Yohn, 275 F. 232.

Offenses Against Fokeign & Interstate Commerce. 463

By the Act of Oct. 29, 1919, the theft and transportation
in interstate commerce of an automobile was made an
offense punishable by fine not to exceed five thousand
dollars and imprisonment not to exceed five years.

The statute reads "that whoever shall transport or
cause to be transported in interstate or foreign commerce
a motor vehicle, knowing the same to have been stolen,
shall be punished as aforesaid."

"Whoever shall receive, conceal, store, barter, sell, or
dispose of any motor vehicle, moving as, or which is
a part of, or which constitutes interstate or foreign com-
merce, knowing the same to have been stolen, shall be
punished by fine of not more than five thousand dollars
or by imprisonment of not more than five years, or both,
this violation may be punished in any district in or
through which such vehicle was transported or removed
by such offender.

Act Oct. 29, 1919; Sec. 9945 a, 1921 Supplement Barnes
Fed. Code.

§ 271d. Cotton Future Contracts. — The Act of Au-
gust 18, 1914, provides that it shall be known as the Unit-
ed States Cotton Futures Act. In the second Section there-
of it defines contract of sale and the meaning of the word
person, and in the third section thereof levies a tax of
2 cents per pound of the cotton involved in any contract
for future delivery, made at, on, or in any exchange,
board of trade, or similar institution or place of business.

Section 4 provides a form for such contracts.

Section 5 specifies contracts that are exempt from the
tax.

Section 6 gives a basis for determining cotton values,
and,

Section 7 provides that for the purposes of the Act the
only markets which shall be considered bona fide spot
markets shall be those which the Secretary of Agricul-
ture shall, from time to time, after investigation, deter-
mine and designate to be such, and of which she shall
give public notice.

Section 8 tells what markets the Secretary may con-
sider.

Section 9 establishes certain standards of cotton.

464 Federal Criminal Law Procedure.

Section 10 sets forth certain contracts that are exempt.

Section 11 fixes an excise tax of 2 cents per pound of
the cotton ordered bought or sold for future delivery.

Section 12 provides for the payment of tax by the use
of stamps.

Section 13 declares all contracts made in violation of
the Act shall be unenforceable.

Section 14 empowers the Secretary of the Treasury to
make rules and regulations to collect the taxes and carry
the Act into effect, and,

Section 15 provides as follows: "That any person
liable to the payment of any tax imposed by this Act who
fails to pay, or evades, or attempts to evade the payment
of such tax, and any person who otherwise violates any
provision of this Act, or any rule or regulation made in
pursuance hereof, shall be deemed guilty of a misdemean-
or, and upon conviction thereof shall be fined not less
than $100, nor more than $20,000, in the discretion of
the Court; and in case of natural persons, may, in addi-
tion, be punished by imprisonment for not less than 60
days nor more than 3 years, in the discretion of the
Court."

Section 16 rewards informants and makes it the duty
of District Attorneys to prosecute.

Section 17 provides for immunity.

§ 271e. Opium, or Cocoa Leaves, Their Salts, De-
rivatives or Preparations.— The production, importation,
manufacture, compounding, sale, dispensing, or giving
away of opium, or cocoa leaves, their salts, derivatives
or preparations, was regulated and prohibited in the man-
ned indicated by the following statute, which was the
Act of December 17, 1914:

"That on and after the first day of March, nineteen hundred and
fifteen, every person who produces, imports, manufactures, compounds,
deals in, dispenses, sells, distributes, or gives away opium or cocoa
leaves or any compound, manufacture, salt, derivative, or preparation
thereof, shall register with the collector of internal revenue of the
district his name or style, place of business, and place or places where
such business is to be carried on: Provided, that the office, or if none,
then the residence of any person shall be considered for the purpose
of this Act to be his place of business. At the time of such registry
and on or before the first day of July, annually thereafter, every per-

Offenses Against Foreign & Interstate Commerce. 465

son who produces, imports, manufactures, compounds, deals in, dis-
penses, sells, distributes, or gives away any of the aforesaid drugs
shall pay to the said collector a special tax at the rate of $1 per an-
num: Provided, that no employee of any person who produces, im-
ports, manufactures, compounds, deals in, dispenses, sells, distributes,
or gives away any of the aforesaid drugs, acting within the scope of
his employment, shall be required to register or to pay the special
tax provided by this section: Provided, further, that the person who
employs him shall have registered and paid the special tax as re-
quired by this section: Provided further, that officers of the United
States Government who are lawfully engaged in making purchases of
the above-named drugs for the various departments of the Army and
Navy, the Public Health Service, and for Government hospitals and
prisons, and officers of the State Government, or of any county or
municipality therein, who are lawfully engaged in making purchases
of the above-named drugs for State, county, or municipal hospitals
or prisons, and officials of any territory or insular possession of the
District of Columbia or of the United States who are lawfully engaged
in the making purchases of the above-named drugs for hospitals or
prisons therein shall not be required to register and pay the special tax
as herein required.

"It shall be unlawful for any person required to register under the
terms of this Act to produce, import, manufacture, compound, deal
in, dispense, sell, distribute, or give away any of the aforesaid drugs
without having registered and paid the special tax provided for in this
section.

"That the word 'person' as used in this Act shall be construed to
mean and include a partnership, association, company, or corporation,
as well as a natural person; and all provisions of existing law re-
lating to special taxes, so far as applicable, including the provisions
of section thirty-two hundred and forty of the Revised Statutes of
the United States are hereby extended to the special tax herein im-
posed.

That the Commissioner of Internal* Revenue, with the approval of
the Secretary of the Treasury, shall make all needful rules and regula-
tions for carrying the provisions of this Act into effect.

"Sec. 2. That it shall be unlawful for any person to sell, barter,
exchange, or give away any of the aforesaid drugs except in pursuance
of a written order of the person to whom such article is sold, bartered,
exchanged, or given, on a form to be issued in blank for that purpose
by the Commissioner of Internal Revenue. Every person who shall
accept any such order, and in pursuance thereof shall sell, barter,
exchange, or give away any of the aforesaid drugs, shall preserve such
order for a period of two years in such a way as to be readily ac-
cessible to inspection by any officer, agent, or employee of the Treasury
Department duly authorized for that purpose, and the State, Territorial,
District, municipal, and insular officials named in Section 5 of this
Act. Every person who shall give an order as herein provided to any

466 Federal Criminal Law Procedure.

other person for any of the aforesaid drugs shall, at or before the
time of giving such order, make or cause to be made a duplicate there
of on a form to be issued in blank for that purpose by the Commissioner
of Internal Revenue, and in case of the acceptance of such order,
shall preserve such duplicate for said period of two years in such a
way as to be readily accessible to inspection by the officers, agents,
employees, and officials hereinbefore mentioned. Nothing contained
in this section shall apply —

"(a) To the dispensing or distribution of any of the aforesaid drugs
to a patient by a physician, dentist, or veterinary surgeon registered
under this Act in the course of his professional practice only: . Pro-
vided, that such physician, dentist, or veterinary surgeon shall keep
a record of all such drugs dispensed or distributed, showing the
amount dispensed or distributed, the date, and the name and address
of the patient to whom such drugs are dispensed or distributed, except
such as may be dispensed or distributed to a patient upon whom such
physician, dentist or veterinary surgeon shall personally attend; and
such record shall be kept for a period of two years from the date of
dispensing or distributing such drugs, subject to inspection, as pro-
vided in this Act.

"(b) To the sale, dispensing, or distribution of any of the aforesaid
drugs by a dealer to a consumer under and in pursuance of a written
prescription issued by a physician, dentist, or veterinary surgeon reg-
istered under this Act: Provided, however, that such prescription
shall be dated as of the day on which signed and shall be signed by
the physician, dentist, or veterinary surgeon who shall have issued the
same: And provided further, that such dealer shall preserve such
prescription for a period of two years from the day on which such
prescription is filled in such a way as to be readily accessible to in-
spection by the officers, agents, employees, and officials hereinbefore
mentioned.

"(c) To the sale, exportation, shipment or delivery of any of the
aforesaid drugs by any person within the United States or any Ter-
ritory or the District of Columbia or any of the insular possessions of
the United States to any person in any foreign country, regulating
their entry in accordance with such regulations for importation thereof
into such foreign country as are prescribed by said country, such regula-
tions to be promulgated from time to time by the Secretary of State
of the United States.

"(d) To the sale, barter, exchange, or giving away of any of the
aforesaid drugs to any officer of the United States Government or of
any State, territorial, district, county, or municipal or insular gov-
ernment lawfully engaged in making purchases thereof for the various
departments of the Army and Navy, the Public Health Service, and
for Government, State, territorial district, county, or municipal or in-
sular hospitals or prisons.

. '-«

Offenses Against Foreign & Interstate Commerce. 467

The Commissioner of Internal Revenue, with the approval of the
Secretary of the Treasury, shall cause suitable forms to be prepared
for the purposes above mentioned, and shall cause the same to be
distributed to collectors of internal revenue for sale Oy them to those
persons who shall have registered and paid the special tax as required
by Section 1 of this Act in their districts, respectively; and no col-
lector shall sell any of such forms to any persons other than a person
who has registered and paid the special tax as required by Section 1
of this Act in his district. The price at which such forms shall be
sold by said collectors shall be fixed by the Commissioner of Internal
Revenue, with the approval of the Secretary of the Treasury, but shall
not exceed the sum of $1 per hundred. Every collector shall keep an
account of the number of such forms sold by him, the name of the
purchasers, and the number of such forms sold to each of such pur-
chasers. Whenever any collector shall sell any of such forms, he shall
cause the name of the purchaser thereof to be plainly written or
stamped thereon before delivering the same; and no person other than
such purchaser shall use any of said forms bearing the name of such
purchaser for the purpose of procuring any of the aforesaid drugs, or
furnish any of the forms bearing the name of such purchaser to any
person with intent thereby to procure the shipment or delivery of any
of the aforesaid drugs. It shall be unlawful for any person to obtain
by means of said order forms any of the aforesaid drugs for any pur-
pose other than the use, sale, or distribution thereof by him in the
conduct of a lawful business in said drugs or in the legitimate practice
of his profession.

"The provisions of this Act shall apply to the United States, the
District of Columbia, the Territory of Alaska, the Territory of Hawaii,
the insular possessions of the United States, and the Canal Zone. In
Porto Rico and the Philippine Islands the administration of this Act,
the collection of the said special tax, and the issuance of the order forms
specified in Section 2 shall be performed by the appropriate internal-
revenue officers of those governments, and all revenues collected here-
under in Porto Rico and the Philippine Islands shall accrue intact to
the general governments thereof, respectively. The Courts of first
instance in the Philippine Islands shall possess and exercise jurisdic-
tion in all cases arising under this Act in said islands. The President
is authorized and directed to issue such Executive orders as will car-
ry into effect in the Canal Zone the intent and purpose of this Act by
providing for the registration and the imposition of a special tax upon
all persons in the Canal Zone who produce, import, compound, deal
in, dispense, sell, distribute, or give away opium or cocoa leaves, their
salts, derivatives, or preparations.

"Sec. 3. That any person who shall be registered in any internal-
revenue district under the provisions of Section 1 of this Act shall,
whenever required so to do by the collector of the district, render to
the said collector a true and correct statement or return, verified by
affidavit, setting forth the quantity of the aforesaid drugs received by

468 Federal Criminal Law Procedure.

him in said internal-revenue district during such period immediately
preceding the demand of the collector, not exceeding three months, as
the said collector may fix and determine; the names of the persons
from whom the said drugs were received; the quantity in each in-
stance received from each of such persons, and the date when received.

"Sec. 4. That it shall be unlawful for any person who shall not
have registered and paid the special tax as required by Section 1 of
this Act to send, ship, carry, or deliver any of the aforesaid drugs
from any State or Territory or the District of Columbia, or any in-
sular possession of the United States, to any person in any other State
or Territory or the District of Columbia or any insular possession of
the United States: Provided, that nothing contained in this section
shall apply to common carriers engaged in transporting the aforesaid
drugs, or to any employee acting within the scope of his employment,
or any person who shall have registered and paid the special tax as
required by Section 1 of this Act, or to any person who shall deliver
any such drug which has been prescribed or dispensed by a physician,
dentist, or veterinarian required to register under the terms of this
Act, who has been employed to prescribe for the particular patient
receiving such drug, or to any United States, State, county, municipal,
District, Territorial, or insular officer or official acting within the scope
of his official duties.

"Sec. 5. That the duplicate-order forms and the prescriptions re-
quired to be preserved under the provisions of Section 2 of this Act,
and the statements or returns filed in the office of the collector of the
district, under the provisions of Section 3 of this Act, shall be open to
inspection by officers, agents, and employees of the Treasury Depart-
ment duly authorized for that purpose; and such officials of any State
or Territory, or of any organized municipality therein, or of the District
of Columbia, or any insular possession of the United States, as shall
be charged with the enforcement of any law or municipal ordinance
regulating the sale, prescribing, dispensing, dealing in, or distribution
of the aforesaid drugs, Each collector of internal revenue is hereby
authorized to furnish, upon written request, certified copies of any of
the said statements or returns filed in his office to any of such officials
of any State or Territory or organized municipality therein, or the
District of Columbia, or any insular possession of the United States,
as shall be entitled to inspect the said statements or returns filed in
the office of the said collector, upon the payment of a tee of $1 for each
one hundred words or fraction thereof in the copy or copies so re-
quested. Any person who shall disclose the information contained in
the said statements or returns or in the said duplicate-order forms,
except as herein expressly provided, and except for the purpose of en-
forcing the provisions of this Act, or for the purpose of enforcing any
law of any State or Territory or the District of Columbia, or any in-
sular possession of the United States, or ordinance of any organized
municipality therein, regulating the sale, prescribing, dispensing, deal-
ing in, or distribution of the aforesaid drugs, shall on conviction, be

Offenses Against Foreign & Interstate Commerce. 469

fined or imprisoned as provided by Section 9 of this Act. And col-
lectors of internal revenue are hereby authorized to furnish upon writ-
ten request, to any person, a certified copy of the names of any or all
persons who may be listed in their respective collection districts as
special-tax payers under the provisions of this Act, upon payment of
a fee of $1 for each one hundred names or fraction thereon in the copy
so requested.

"Sec. 6. That the provisions of this Act shall not be construed to
apply to the sale, distribution, giving away, dispensing, or possession
of preparations and remedies which do not contain more than two
grains of opium, or more than one-fourth of a grain of morphine, or
more than one-eighth of a grain of heroin, or more than one grain o?
codeine, or any salt or derivative of any of them in one fluid ounce,
or, if a solid or semi-solid preparation, in one avoirdupois ounce; or
to liniments, ointments, or other preparations which are prepared for
external use only; except liniments, ointments, and other preparations
which contain cocaine or any of its salts or alpha or beta eucaine or
any of their salts or any synthetic substituted for them: Provided,
that such remedies and preparations are sold, distributed, given away,
dispensed, or possessed as medicines and not for the purpose of evad-
ing the intentions and provisions of this Act. The provisions of this
Act shall not apply to decocainized cocoa leaves or preparations made
therefrom, or to other preparations of cocoa leaves which do not con-
tain cocaine.

"Sec. 7. That all laws relating to the assessment, collection, remis-
sion, and refund of internal-revenue taxes, including Section 3229 of
the Revised Statutes of the United States, so far as applicable to and
not inconsistent with the provisions of this Act, are hereby extended
and made applicable to the special taxes imposed by this Act.

"Sec. 8. That it shall be unlawful for any person not registered
under the provisions of this Act, and who has not paid the special tax
provided for by this Act, to have in his possession or under his control
any of the aforesaid drugs; and such possession or control shall be
presumptive evidence of a violation of this section, and also of a viola-
tion of the provisions of Section 1 of this Act: Provided, That this
section shall not apply to any employee of a registered person, or to
a nurse under the supervision of a physician, dentist, or veterinary
surgeon registered under this Act, having such possession or control
by virtue of his employment or occupation and not on his own account;
or to the possession of any of the aforesaid drugs which has or have
been prescribed in good faith by a physician, dentist, or veter'nary
surgeon registered under this Act; or to any United States, State,
county, municipal, District, Territorial, or insular officer or official who
has possession of any said drugs, by reason of his official duties, or to
a warehouseman holding possession for a person registered and who
has paid the taxes under this Act; or to common carriers engaged in
transporting such drugs: Provided, further, that it shall not be
necessary to negative any of the aforesaid exemptions .-n any complaint.

470 Federal Criminal Law Procedure.

information, indictment, or other writ or proceeding laid or brought
under this Act; and the burden of proof of any such exemption shall
be upon the defendant.

"Sec. 9. That any person who violates or fails to comply with any
of the requirements of this Act shall, on conviction, be fined not more
than $2,000 or be imprisoned not more than five years, or both, in the
discretion of the Court.

"Sec. 10. That the Commissioner of Internal Revenue, with the
approval of the Secretary of the Treasury, is authorized to appoint such
agents, deputy collectors, inspectors, chemists, assistant chemists,
clerks, and messengers in the field and in the Bureau of Internal
Revenue in the District of Columbia, as may be necessary to enforce
the provisions of this Act.

"Sec. 11. That the sum of $150,000, or so much thereof as may be
necessary, be, and hereby is, appropriated, out of any moneys in the
Treasury not otherwise appropriated, for the purpose of carrying into
effect the provisions of this Act.

"Sec. 12. That nothing contained in this Act shall be construed to
impair, alter, amend, or repeal any of the provisions of the Act of
Congress approved June 30, 1906, entitled 'An Act for preventing the
manufacture, sale, or transportation of adulterated or misbranded, or
poisonous, or deleterious foods, drugs, medicines, and liquors, and for
regulating traffic therein, and for other purposes;' and any amendment
thereof, or of the Act approved February 9, 1909, entitled 'An Act to
prohibit the importation and use of opium for other than medicinal
purposes,' and any amendment thereof."

The severity of the punishment for the acts that appear
to become crimes from a casual study of the above stat-
ute causes me to doubt that the congress ever intended
to punish anyone save the dealer. In other words, one
who has in his possession the prohibited sedative for his
own use manifestly ought not to become a felon, and
manifestly ought not to suffer the severe punishment
prescribed by the statute. Judge Bourguin of the Mon-
tana district, in the case of U. S. vs. Woods, 224 Fed. 278,
expresses views in line with this thought, and said, in
substance, that any person convicted of the most trivial
violation of the statute, though fined but one dollar there-
under, is made a felon and infamous, and for this mere
legal infraction, which is not in fact a true crime, a con-
sequence shockingly disproportionate to the offense fol-
lows, and such a construction of the statute is therefore
antagonistic to sound criminal economics and is abhor-
rent to justice. It is a corollary of criminal law that

Offenses Against Foreign & Interstate Commerce. 471

whenever an offense can be committed by only certain
classes of persons, the indictment must expressly allege
that the accused is of those classes, or it is fatally de-
fective in substance. U. S. vs. Woods, 224 Fed. 280.

So in the case of U. S. vs. Friedman, 224 Fed. 277,
which was a prosecution against a physician for prescrib-
ing the prohibited drugs in quantites more than was
necessary to meet the needs of a patient, and that they
were not distributed, dispensed and prescribed in good
faith as a medicine, the court sustained a demurrer on
the ground that the statute does not in fact limit the
amount of the drugs a. physician may prescribe.

In U. S. vs. Brown, 224 Fed. 135,' it was held that the
court will take judicial notice of the fact that opium is
not grown or produced in the United States. In the
same case the court held the act of December 17, 1914
providing for the registration with collectors of internal
revenue of dealers in opium, and imposing a tax on deal-
ers and making it unlawful for any person who has not
registered and paid the tax, to have in his possession any
opium or derivative thereof, and providing that such
possession shall be presumptive evidence of a violation
of the act, constitutional.

Returning again to the Act under consideration, it
seems very clear that there is nothing in the Act im-
posing the duty of registration and the payment of taxes
upon mere consumers of the drugs. They are not within
Section 1, and Section 8 does not purport to extend the
registration and taxation features of the act to them.

§ 271f. Interstate Commerce. Regulation Thereof. —
The Act of February 4, 1887, 24th Statute at Large, 379,
page 809, Third Volume Federal Statutes, Annotated,
comprises certain regulations for the common carriers of
interstate traffic.

Section 1 provides that the Act shall apply to any com-
mon carrier engaged in the transportation of passengers
or property, wholly by railroad or partly by railroad and
partly by water, and provides that all charges shall be
reasonable and just. It also defines the word Railroad.

Section 2 provides for special rates, and prohibits re-
bates in any way, directly or indirectly.

472 Federal Criminal Law Procedure.

Section 3 inhibits undue preferences, and guarantees
equal facilities to connecting" lines.

Section 4 allows certain exceptions in long and short
haul charges.

Section 5 prohibits pooling agreements.

Section 6 provides that printed schedules of rates shall
be lasted, as shall also notice of advances and reduction
be given, provides for joint rate tariffs, and punishes
failure to file schedules.

Section 7 provides combinations to prevent continuous
carriage of freight to destination.

Section 8 defines a liability to persons who are injured
by violation of the Act.

Section 9 provides that persons damaged may complain
to the commission or may personally sue.

Section 10 thereof provides as follows:

"(Punishment for violation or evasion of the Act.) That any com-
mon carrier subject to the provisions of this Act, or, whenever such
carrier is a corporation, any director, or officer thereof, or any re-
ceiver or trustee, lessee, agent or person acting for or employed by
such corporation, company, person, or party, shall wilfully do or cause
to be done, or shall willingly suffer or permit to de done, any act,
matter, or thing in this Act prohibited or declared to be unlawful, or
who shall aid or abet therein, or shall willfully omit or fail to do any
act, matter, or thing in this Act required to be done, or shall cause or
willingly suffer or permit any act, matter, or thing so directed or re-
quired by this Act to be done not to be so done, or shall aid or abet any
such omission or failure, or shall be guilty of any infraction of this
Act, or shall aid or abet therein, shall be deemed guilty of a misde-
meanor, and shall, upon conviction thereof in any District Court of the
United States within the jurisdiction of which such offense was com
mitted, be subject to a fine of not to exceed five thousand dollars for
each offense: Provided, that if the offense for which any person shall
be convicted as aforesaid shall be an unlawful discriminating in rates,
fares, or charges, for the transportation of passengers or property, such
person shall, in addition to the fine hereinbefore provided for, be liable
to imprisonment in the penitentiary for a term of not exceeding two
years, or both such fine and imprisonment, in the discretion of the
Court.

"Any common carrier subject to the provisions of this Act, or, when-
ever such common carrier is a corporation, any officer or agent thereof,
or any person acting for or employed by such corporation, who, by
means of false billing, false classification, false weighing, or false re-
port of weight, or by any other device or means, shall knowingly or

Offenses Against Foreign & Interstate Commerce. 473

willfully assist, or shall willingly suffer or permit, any person or per-
sons to obtain transportation for property at less than the regular
rates then established and in force on the line of transportation of such
common carrier, shall be deemed guilty of a misdemeanor, and shall,
upon conviction thereof in any Court of the United States of com-
petent jurisdiction within the district in which such offense was com-
mitted, be subject to a fine of not exceeding five thousand dollars, or
imprisonment in the penitentiary for a term of not exoeeding two
years, or both, in the discretion of the Court for each offense.

"Any person and any officer or agent of any corporation or company
who shall deliver property for transportation to any common carrier,
subject to tbe provisions of this Act, or for whom as consignor or
consignee any such carrier shall transport property, who shall know-
ingly and willfully, by false billing, false classification, false weighing,
false representation of the contents of the package, or false report of
weight, or by any other device or means, whether with or without the
consent or connivance of the carrier, its agent or agents, obtain trans-
portation for such property at less than the regular rates then estab-
lished and in force on the line of transportation, shall be deemed guilty
of fraud, which is hereby declared to be a misdemeanor, and shall,
upon conviction thereof in any Court of the United States of competent
jurisdiction within the district in which such offense was committed, be
subject for each offense to a fine of not exceeding five thousand dol-
lars or imprisonment in the penitentiary for a term of not exceeding
two years, or both, in the discretion of the Court.

"If any such person, or any officer or agent of any such corporation or
company, shall, by payment of money or other thing of value, solicita-
tion, or otherwise, induce any common carrier subject to the provisions
of this Act, or any of its officers or agents, to discriminate unjustly in
his, its, or their favor as against any other consignor or consignee
in the transportation of property, or shall aid or abet any common
carrier in any such unjust discrimination, such person, or such officer
or agent of such corporation or company, shall be deemed guilty of a
misdemeanor, and shall, upon conviction thereof in any Court of the
United States of competent jurisdiction within the districts within
which such offense was committed, be subject to a fine of not exceed-
ing five thousand dollars, or imprisonment in the penitentiary for a
term of not exceeding two years, or both, in the discretion of the
Court, for each offense; and such person, corporation, or company
shall also, together with said common carrier, be liable, jointly or
severally, in an action on the case to be brought by any consignor or
consignee discriminated against in any Court of the United States of
competent jurisdiction for all damages caused by or resulting there-
from. (25 Stat. L., 857.)"

Section 11 provides for the creation of an interstate
commerce commission.

474 Federal Criminal Law Procedure.

Section 12 defines the scope of the commission, pro-
vides for prosecution of proceedings, the attendance of
witnesses, depositions, and self-incriminating testimony.

Section 13 provides for petitions as to violations of law,
notice to carrier of charges filed, and for investigations.

Section 14 provides for written reports of investiga-
tions, and that such reports and decisions may be printed
and distributed.

Section 15 provides for notice to the carrier of viola-
tions and for making of a record of compliance with the
report.

Section 16 frames a procedure in case of refusal to
obey the commission, provides for remedies, jury trials,
appeals, and costs.

Section 17 provides for proceedings of commission,
rules, quorums, appearances, records, seal, oaths and sub-
poenaes.

Section 19 fixes the salaries, provides for witness fees.

Section 19 fixes the office and place of business at Wash-
ington, and allows the commission to hold special ses-
sions in any part of the United States.

Section 22 provides for free carriage and reduced rates
to certain corporations and persons.

CHAPTER XIIA

INTOXICATING LIQUOR.

§ 1100. Historical.

1101. Reed Act.

1102. Decisions under Reed Act.

1103. Volstead Act and Constitutional Amendment 18.

1104. Decisions under Different Provisions of the Volstead Act.

1105. Volstead Act Repeals some of Revenue Laws.

1106. Decisions Continued.

1107. Opium, or Cocoa Leaves, and Salts, Derivatives or Prepara-
tions, Continued.

1108. Narcotic Decisions.

Sec. 1100. Historical.

The Webb-Kenyon Act of Mar. 1, 1913, Compiled Stat-
utes 1916, Sec. 8739, was the beginning of the undoing
of the right of interstate commerce to protect the in-
troduction of intoxicating liquors into non-wishing states.

In 1917 came the Reed amendment and later in the
same year the wartime legislation for the protection of
the nations soldiers and their concentration points. Then
the Eighteenth Amendment to the Constitution was
adopted and its adoption was quickly followed by the
Volstead Act, of October 28, 1919.

Sec. 1101. The Reed Act: "Whoever shall order,
purchase, or cause intoxicating liquors to be trans-
ported in interstate commerce, except for scientific, sac-
ramental, medicinal, and mechanical purposes, into any
state or territorv, the laws of which state or territorv
prohibit the manufacture, or sale therein of intoxicating
liquors for beverage purposes shall be punished as afore-
said, provided, that nothing therein shall authorize the
shipment of liquor into any state contrary to the laws
of such state."

The punishment is by fine of not exceeding a thousand
dollars or imprisonment not more than six months or
both, and for any subsequent offense imprisonment not
more than one year.

Sec. 1102. Decisions Under Reed Act.

Berryman vs. U. S., 259 F. 208; Laughter vs. U. S.,
259 F. 94; Preyer vs. U. S., 260 F. 157; U. S. vs. Collins,
264 F. 380; Durst vs. U. S., 266 F. 65; ex parte West-

(475)

476 Federal Criminal Law Procedure.

brook, 250 F. 637; U. S. vs. Collins, 254 F. 869; U. S.
vs. Gudger, U. S. Sup. Ct. Rep. Apr. 1919; U. S. vs. Hill,
U. S. Sup. Ct. Jan. 1919; U. S. vs. Simpson, 40. Sup.
Ct. 364; U. S. vs. James, 256 F. 102.

Sec. 1103. Volstead Act and Constitutional Amend-
ment Eighteen.

In 1918 the Eighteenth Amendment to the Constitution
was adopted, such adoption being proclaimed on the 29th
of January, 1919, the article is as follows: —

"Sec. 1. After one year from the ratification of this
Article the manufacture, sale, or transportation of in-
toxicating liquors within, the importation thereof into,
or the exportation thereof from the United States and
all territory subject to the jurisdiction thereof for bev-
erage purposes is hereby prohibited.

Sec. 2, The congress and the several states shall have
concurrent power to enforce this Article by appropriate
legislation . . ."

Then Congress passed the Volstead Act, as follows:—

Title II.

Prohibition of Intoxicating Beverages.

Sec. 1. (Terms defined — authority of assistants to
commissioner.) When used in Title II and Title III of
this Act (1) The word "liquor" or the phrase "intoxi-
cating liquor" shall be construed to include alcohol, bran-
dy, whisky, rum, gin, beer, ale, porter, and wine, and in
addition thereto any spirituous, vinous, malt, or fer-
mented liquor, liquids, and compounds, whether medi-
cated, proprietary, patented, or not, and by whatever
name called, containing one-half of 1 per centum or more
of alcohol by volume which are fit for use for beverage
purposes: Provided, That the foregoing definition shall
not extend to dealcoholized wine nor to any beverage or
liquid produced by the process by which beer, ale, porter
or wine is produced, if it contains less than one-half of 1
per centum of alcohol by volume, and is made as pre-
scribed in section 37 of this title, and is otherwise de-
nominated than as beer, ale, or porter, and is contained
and sold in, or from, such sealed and labeled bottles,

Intoxicating Liquors. 477

casks or containers as the commissioner may by regula-
tion prescribe.

(2) The word "person" shall mean and include nat-
ural persons, associations, copartnerships, and corpora-
tions.

(3) The word "commissioner" shall mean Commis-
sioner of Internal Revenue.

(4) The term "application'1 shall mean a formal
written request supported by a verified statement of
facts showing that the commissioner may grant the re-
quest.

(5) The term "permit" shall mean a formal written
authorization by the commissioner setting forth specifical-
ly therein the things that are authorized.

(6) The term "bond" shall mean an obligation au-
thorized or required by or under this act or any regula-
tion, executed in such form and for such a penal sum
as may be required by a court, the commissioner or pre-
scribed by regulation.

(7) The term "regulation" shall mean any regulation
prescribed by the commissioner with the approval of
the Secretary of the Treasury for carrying out the pro-
visions of this Act, and the commissioner is authorized
to make such regulations.

Any act authorized to be clone by the commissioner
may be performed by any assistant or agent designated
by him for that purpose. Records required to be filed
with the commissioner may be filed with an assistant
commissioner or other person designated by the commis-
sioner to receive such record. (41 Stat. L. 307.)

Sec. 2. (Investigation and report of violation of act —
Commissioner of Internal Revenue — apprehension of of-
fenders— prosecution — search warrants.) The Commis-
sioner of Internal Revenue, his assistants, agents, and
inspectors shall investigate and report violations of this
Act to the United States attorney for the district in
which committed, who is hereby charged with the duty
of prosecuting the offenders, subject to the direction of
the Attorney General, as in the case of other offenses
against the laws of the United States; and such Commis-
sioner of Internal Revenue, his assistants, agents, and

478 Federal Criminal Law Procedure.

inspectors may swear out warrants before United States
commissioners or other officers or courts authorized to
issue the same for the apprehension of such offenders,
and may, subject to the control of the said United States
attorney, conduct the prosecution at the committing trial
for the purpose of having the offenders held for the
action of a grand jury. Section 1014 of the Revised Stat-
utes of the United States is hereby made applicable in
the enforcement of this Act. Officers mentioned in said
section 1014 are authorized to issue search warrants un-
der the limitations provided in Title XI of the Act ap-
proved June 15, 1917 (Fortieth Statutes at Large, page
217, et seq.) (41 Stat. L. 308.)

For R. S. sec. 1014, see 2 Fed. Stat. Ann. (2d ed.) 654;
2 Fed. Stat. Ann. (1st ed.) 321.

For Act of June 15, 1917, title XI, mentioned in the
text, see 1918 Supp. Fed. Stat. Ann. 128.

Sec. 3. (Application of Act to Eighteenth Amendment
of Constitution — liquor for nonbeverage purposes — wine
for sacramental purposes — warehouse receipts.) No per-
sons shall on or after the date when the eighteenth
amendment to the Constitution of the United States goes
into effect, manufacture, sell, barter, transport, import,
export, deliver, furnish or possess any intoxicating liq-
uor except as authorized in this Act, and all provisions
of this Act shall be liberally construed to the end that
the use of intoxicating liquor as a beverage may be pre-
vented.

Liquor for nonbeverage purposes and wine for sacra-
mental purposes may be manufactured, purchased, sold,
bartered, transported, imported, exported, delivered, fur-
nished and possessed, but only as herein provided, and
the commissioner mayTlrjxm^^

therefor: Provided, That nothing in this Act shallpro-
liibit the purchase and sale of warehouse receipts cover-
ing distilled spirits on deposit in Government bonded
warehouses, and no special tax liability shall attach to
the business of purchasing and selling such warehouse
receipts. (41 Stat. L. 308.)

The Eighteenth Amendment to the Constitution is set
out infra. See Index.

Intoxicating Liquors. 479

Sec. 4. (Enumeration of certain articles not affected
by act — permit to manufacture — sale of articles — use for
beverage purposes.) The articles enumerated in this
section shall not, after having been manufactured and
prepared for the market, be subject to the provisions of
this Act if they correspond with the following descrip-
tions and limitations, namely:

(a) Denatured alcohol or denatured rum produced and
and used as provided by laws and regulations now or
hereafter in force.

(b) Medicinal preparations manufactured in accord-
ance with formulas prescribed by the United States
Pharmacopoeia, National Formulary or the American
Institute of Homeopathy that are unfit for use for bev-
erage purposes.

(d) Toilet, medicinal, and antiseptic preparations and
solutions that are unfit for use for beverage purposes.

(e) Flavoring extracts and sirups that are unfit for
use as a beverage, or for intoxicating beverage purposes.

(f) Vinegar and preserved sweet cider.

A person who manufactures any of the articles men-
tioned in this section may purchase and possess liquor
for that purpose, but he shall secure permits to manu-
facture such articles and to purchase such liquor, give the
bonds, keep the records, and make the reports specified
in this Act and as directed by the commissioner. No
such manufacturer shall sell, use, or dispose of any liquor
otherwise than as an ingredient of the articles authorized
to be manufactured therefrom. No more alcohol shall
be used in the manufacture of any extract, sirup or the
articles named in paragraphs b. c. and d. of this section
which may be used for beverage purposes than the quan-
titv necessarv for extraction or solution of the elements
contained therein and for the preservation of the article.

Any person who shall knowingly sell any of the articles
mentioned in paragraphs a, b, c,. and d of this section
for beverage purposes, or any extract or sirup for in-
toxicating beverage purposes, or who shall sell any of

480 Federal Criminal Law Procedure.

the same under circumstances from which the seller
might reasonably deduce the intention of the purchaser
to use them for such purposes, or shall sell any beverage
containing one-half of 1 per centum or more of alcohol
by volume in which any extract, sirup, or other article is
used as an ingredient, shall be subject to the penalties
provided in section 29 of this Title. If the commissioner
shall find, after notice and hearing as provided for in
section 5, of this Title, that any person has sold any flav-
oring extract, sirup, or beverage in violation of this para-
graph, he shall notify such person, and any known prin-
cipal for whom the sale was made, to desist from selling
such article; and it .shall thereupon be unlawful for a
period of one year thereafter for any person so notified to
sell any such extract, sirup, or beverage without making
an application for, giving a bond, and obtaining a permit
so to do, which permit may be issued upon such condi-
tions as the commissioner may deem necessary to prevent
such illegal sales, and in addition the commissioner shall
require a record and report of sales. (41 Stat. L. 309.)

Sec. 5. (Failure of enumerated articles to conform to
descriptions — analysis — revocation of permit.) When-
ever the commissioner has reason to believe that any
article mentioned in section 4 does not correspond with
the descriptions and limitations therein provided, he
shall cause an analysis of said article to be made, and if,
upon such analysis, the commissioner shall find that said
article does not so correspond, he shall give not less than
fifteen days' notice in writing to the person who is the
manufacturer thereof to show cause why said article
should not be dealt with as an intoxicating liquor, such
notice to be served personally or by registered mail, as
the commissioner may determine and shall specify the
time when, the place where, and the name of the agent or
official before whom such person is required to appear.

If the manufacturer of said article fails to show to the
satisfaction of the commissioner that the article corre-
sponds to the descriptions and limitations provided in
section 4 of this Title, his permit to manufacture and
sell such article shall be revoked. The manufacturer may

Intoxicating Liquors. 481

by appropriate proceeding in a court of equity have the
action of the commissioner reviewed, and the court may
affirm, modify, or reverse the finding of the commissioner
as the facts and the law of the case mav warrant, and
during the pendency of such proceedings may restrain
the manufacture, sale, or other disposition of such article.
(41 Stat. L. 309.)

Sec. 6. (Permits to manufacture, etc., liquor.) No one
shall manufacture, sell, purchase, transport, or prescribe
any liquor without first obtaining a permit from the com-
missioner so to do, except that a person may, without
a permit, purchase and use liquor for medicinal purposes
when prescribed by a physician as herein provided, and
except that any prson who is in the opinion of the com-
missioner is conducting a bona fide hospital or sanatorium
engaged in the treatment of persons suffering from al-
coholism, may, under such rules, regulations, and condi-
tions, as the commissioner shall prescribe, purchase and
use, in accordance with the methods in use in such in-
stitution, liquor to be administered to the patients of such
institution under the direction of a duly qualified phy-
sician employed by such institution.

All permits to manufacture, prescribe, sell or trans-
port liquor, may be issued for one year, and shall expire
on the 31st day of December next succeeding the issuance
thereof: Provided, That the commissioner may without
formal application or new bond extend any permit granted
under this Act or laws now in force after August 31 in
any year to December 31 of the succeeding year; Pro-
vided further, That permits to purchase liquor for the
purpose of manufacturing or selling as provided in this
Act shall not be in force to exceed ninety days from the
day of issuance. A permit to purchase liquor for any
other purpose shall not be in force to exceed thirty days.
Permits to purchase liquor shall specify the quantity and
kind to be purchased and the purpose for which it is to
be used. No permit shall be issued to any person who
within one year prior to the application therefor or is-
suance thereof shall have violated the terms of any per-
mit issued under this Title or any law of the United

482 Federal Criminal Law Procedure.

States or of any State regulating traffic in liquor. No
permit shall be issued to anyone to sell liquor at re-
tail, unless the sale is to be made through a pharmacist
designated in the permit and duly licensed under the laws
of his State to compound and dispense medicine pre-
scribed by a duly licensed physician. No one shall be
given a permit to prescribe liquor unless he is a physician
duly licensed to practice medicine and actively engaged
in the practice of such profession. Every permit shall be
in writing, dated when issued, and signed by the com-
missioner or his authorized agent. It shall give the name
and address of the person to whom it is issued and shall
designate and limit the acts that are permitted and the
time when and place where such acts may be performed.
No permit shall be issued until a verified, written applica-
tion shall have been made therefor, -setting forth the
qualification of the applicant and the purpose for which
the liquor is to be used.

The commissioner may prescribe the form of all permits
and applications and the facts to be set forth therein.
Before any permit is granted the commissioner may re-
quire a bond in such form and amount as he may pre-
scribe to insure compliance with the terms of the permit
and the provisions of this title. In the event of the re-
fusal by the commissioner of any application for a per-
mit, the applicant may have a review of his decision
before a court of equity in the manner provided in section
5 hereof.

Nothing in this title shall be held to apply to the
manufacture, sale, transportation, importation, posses-
sion, or distribution of wine for sacramental purposes,
or like religious rites, except section 6 (save as the same
requires a permit to purchase) and section 10 hereof, and
the provisions of this Act prescribing penalties for the
violation of either of said sections. No person to whom
a permit may be issued to manufacture, transport, im-
port, or sell wines for sacramental purposes

or like religious rites shall sell, barter, exchange, or
furnish any such to any person not a rabbi, minister of
the gospel, priest, or an officer duly authorized for the

Intoxicating Liquors. 483

purpose by any church or congregation, nor to any such
except upon an application duly subscribed by him, which
application, authenticated as regulations may prescribe,
shall be filed and preserved by the seller. The head of
any conference or diocese or other ecclesiastical juris-
diction may designate any rabbi, minister, or priest to
supervise the manufacture of wine to be used for the
purposes and rites in this section mentioned, and the
person so designated may, in the discretion of the com-
missioner, be granted a permit to supervise such manu-
facture. (41 Stat. L. 310.)

Sec. 7. (Prescriptions for liquors.) No one but a phy-
sician holding a permit to prescribe liquor shall issue
any prescription for liquor. And no physician shall pre-
scribe liquor unless after careful physical examination
of the person for whose use such prescription is sought,
or if such examination is found impracticable, then upon
the best information obtainable, he in good faith believes
that the use of such liquor as a medicine by such person
is necessary and will afford relief to him from some known
ailment. No more than a pint of spirituous liquor to be
taken internally shall be prescribed for use by the same
person within any period of ten days and no prescription
shall be rilled more than once. Any pharmacist filling a
prescription shall at the time indorse upon it over his
own signature the word "canceled," together with the
date when the liquor was delivered, and then make the
same a part of the record that he is required to keep as
herein provided.

Every physician who issues a prescription for liquor
shall keep a record alphabetically arranged in a book
prescribed by the commissioner, who shall show the date
of issue, amount prescribed, to whom issued, the purpose
or ailment for which it is to be used and directions for
use, stating the amount and frequency of the dose. (41
Stat. L. 311.)

Sec. 8. (Prescription blanks.) The commissioner shall
cause to be printed blanks for the prescriptions herein
required, and he shall furnish the same, free of cost, to
physicians holding permits to prescribe. The prescrip-

484 Federal Criminal Law Procedure.

tion blanks shall be printed in book form and shall be
numbered consecutively from one to one hundred, and
each book shall be given a number, and the stubs in each
book shall carry the same number as and be copies of
the prescriptions. The books containing such stubs shall
be returned to the commissioner when the prescription
blanks have been used, or sooner, if directed by the com-
missioner. All unused, mutilated, or defaced blanks shall
be returned with the book. No physician shall prescribe
and no pharmacist shall fill any prescription for liquor
except on blanks so provided, except in cases of emergen-
cy, in which event a record and report shall be made and
kept as in other cases. (41 Stat. 1. 311.)

Sec. 9. (Revocation of permits.) If at any time there
shall be filed with the commissioner a complaint under
oath setting forth facts showing, or if the commissioner
has reason to believe, that any person who has a permit
is not in good faith conforming to the provisions of this
Act, or has violated the laws of any State relating to
intoxicating liquor, the commissioner or his agent shall
immediately issue an order citing such person to appear
before him on a day named not more than thirty and not
less than fifteen days from the date of service upon such
permittee of a copy of the citation, which citation shall
be accompanied by a copy of such complaint, or in the
event that the proceedings be initiated by the commis-
sioner with a statement of the facts constituting the
violation charged, at which time a hearing shall be had
unless continued for cause. Such hearing shall be held
within the judicial district and within fifty miles of the
place where the offense is alleged to have occurred, un-
less the parties agree on another place. If it be found
that such person has been guilty of willfully violating any
such laws, as charged, or has not in good faith conformed
to the provisions of this Act, such permit shall be revoked,
and no permit shall be granted to such person within one
year thereafter. Should the permit be revoked by the
commissioner, the permittee may have a review of his
decision before a court of equity in the manner provided
in section 5 hereof. During the pendency of such action

Intoxicating Liquoks. 485

such permit shall be temporarily revoked. (41 Stat. L.
311.)

Sec. 10. (Record of liquor manufactured, etc.) No
person shall manufacture, purchase for sale, sell, or trans-
port any liquor without making at the time a permanent
record thereof showing in detail the amount and kind of
liquor manufactured, purchased, sold, or transported, to-
gether with the names and addresses of the persons to
whom sold, in case of sale, and the consignor and con-
signee in case of transportation, and the time and place
of such manufacture, sale, or transportation. The com-
missioner may prescribe the form of such record,' which
shall at all times be open to inspection as in this Act
provided. (41 Stat. L. 312.)

Sec. 11. (Copies of permits to purchase — part of rec-
ords— wholesale purchases.) All manufacturers and
wholesale or retail druggists shall keep as a part of the
records required of them a copy of all permits to pur-
chase on which a sale of any liquor is made, and no manu-
facturer or wholesale druggist shall sell or otherwise dis-
pose of any liquor except at wholesale and only to persons
having permits to purchase in such quantities. (41 Stat.
1. 312.)

Sec. 12. (Labels on liquor containers.) All persons
manufacturing liquor for sale under the provisions of this
title shall securely and permanently attach to every con-
tainer thereof, as the same is manufactured, a label stat-
ing name of manufacturer, kind and quantity of liquor
contained therein, and the date of its manufacture, to-
gether with the number of the permit authorizing the
manufacture thereof; and all persons possessing such
liquor in wholesale quantities shall securely keep and
maintain such label thereon; and all persons selling at
wholesale shall attach to every package of liquor, when
sold, a label setting forth the kind and quantity of liquor
contained therein, by whom manufactured, the date of
sale, and the person to whom sold; which label shall like-
wise be kept and maintained thereon until the liquor is
jused for the purpose for which such sale was authorized.
(41 Stat. L. 312.)

486 Federal Criminal Law Procedure.

Sec. 13. (Shipments of liquor — record by carrier — de-
livery— verified copy of permit to purchase.) It shall
be the duty of every carrier to make a record at the place
of shipment of the receipt of any liquor transported, and
he shall deliver liquor only to persons who present to the
carrier a verified copy of a permit to purchase which shall
be made a part of the carrier's permanent record at the
office from which delivery is made.

The agent of the common carrier is hereby authprized
to administer the oath to the consignee in verification of
the copy of the permit presented, who, if not personally
known to the agent, shall be identified before the delivery
of the liquor to him. The name and address of the per-
son identifying the consignee shall be included in the
record. (41 Stat. L. 312.)

Sec. 14. (Shipments — duty of shipper to disclose
character of package — information on outside of pack-
age.) It shall be unlawful for a person to use or induce
any carrier, or any agent or employee thereof, to carry
or ship any package or receptacle containing liquor with-
out notifying the carrier of the true nature and character
of the shipment. No carrier shall transport nor shall
any person receive liquor from a carrier unless there ap-
pears on the outside of the package containing such liq-
uor the following information:

Name and address of consignor or seller, name and
address of the consignee, kind and quantity of liquor
contained therein, and the number of the permit to pur-
chase or ship the same, together with the name and ad-
dress of the person using the permit. (41 Stat. L. 312.)

Sec. 15. (False statements on package — effect.) It
shall be unlawful for any consignee to accept or receive
any package containing any liquor upon which appears
a statement known to him to be false, or for any carrier
or other person to consign, ship, transport, or deliver
any such package, knowing such statement to be false.
(41 Stat. L. 313.)

Sec. 16. (Shipments — bona fide consignee.) It shall
be unlawful to give to any carrier or any officer, agent,
or person acting or assuming to act for such carrier an

Intoxicating Liquors. 487

order requiring the delivery to any person of any liquor
or package containing liquor consigned to, or purporting
or claimed to be consigned to a person, when the purpose
of the order is to enable any person not an actual bona
fide consignee to obtain such liquor. (41 Stat. L. 313.)

Sec. 17. (Liquor advertisements — price lists.) It shall
be unlawful to advertise anywhere, or by any means or
method? liquor, or the manufacture, sale, keeping for sale
^FTurnishing of the same, or' where, how, from whom,
or at what price the same may be obtained. No one shall
^er^it_^my_signor_ billboard containing such advertise-
ment to remain upon one's premises. But nothing herein
shall prohibit manufacturers and wholesale druggists
holding permits to sell liquor from furnishing price lists,
with description of liquor for sale, to persons permitted
to purchase liquor, or from advertising alcohol in busi-
ness publications or trade journals circulating generally
among manufacturers of lawful alcoholic perfume, toilet
preparations, flavoring extracts, medicinal preparations,
and like articles: Provided, however, That nothing in
this Act or in the Act making appropriations for the
Post Office Department, approved March 3, 1917 (Thirty-
ninth Statutes at Large, Part 1, page 1058, et seq.), shall
apply to newspapers published in foreign countries when
mailed to this country. (41 Stat. L. 313.)

For Act of March 3, 1917, mentioned in the text, see
1918 Supp. Fed. Stat. Ann. 394.

Sec. 18. (Advertisements of things pertaining to manu-
facture of liquor.) It shall be unlawful to advertise,
manufacture, sell, or possess for sale any utensil, con-
trivance, machine, preparation, compound, tablet, sub-
stance, formula, direction, or receipt advertised, designed,
or intended for use in the unlawful manufacture of in-
toxicating liquor. (41 Stat. L. 313.)

Sec. 19. (Soliciting liquor orders.) No person shall
solicit or receive, nor knowingly permit his employee to
solicit or receive, from any person any order for liquor
or give any information of how liquor may be obtained
in violation of this Act. (41 Stat. L. 313.)

488 Federal Criminal Law Procedure.

Sec. 20. (Injuries resulting from intoxication — recov-
ery of damages.) Any person who shall be injured in
person, property, means of support, or otherwise by any
intoxicated person, or by reason of the intoxication of
any person, whether resulting in his death or not, shall
have a right of action against any person who shall, by
unlawfully selling to or unlawfully assisting in procuring
liquor for such intoxicated person, have caused or con-
tributed to such intoxication, and in any such action such
person shall have a right to recover actual and exemplary
damages. In case of the death of either party, the action
or right of action given by this section shall survive to
or against his or her executor or administrator, and the
amount so recovered by either wife or child shall be his
or her sole and separate property. Such action may be
brought in any court of competent jurisdiction. In any
case where parents shall be entitled to such damages,
either the father or mother may sue alone therefor, but
recovery by one of such parties shall be a bar to suit
brought by the other. (41 Stat. L. 313.)

Sec. 21. (Property when common nuisance — lien on
property.) Any room, house, building, boat, vehicle,
structure, or place where intoxicating liquor is manu-
factured, sold, kept, or bartered, in violation of this title,
and all intoxicating liquor and property kept and used
in maintaining the same, is hereby declared to be a com-
mon nuisance, and any person who maintains such a com-
mon nuisance shall be guilty of a misdemeanor and upon
conviction thereof shall be fined not more than $1,000 or
be imprisoned for not more than one year, or both. If
a person has knowledge or reason to believe that his
room, house, building, boat, vehicle, structure, or place
is occupied or used for the manufacture or sale of liquor
contrary to the provisions of this title, and suffers the
same to be so occupied or used, such room, house, build-
ing, boat, vehicle, structure, or place shall be subject to
a lien for and may be sold to pay all fines and costs as-
sessed against the person guilty of such nuisance for
such violation, and any such lien may be enforced by
action in any court having jurisdiction. (41 Stat. L. 313.)

Intoxicating Liquors. 489

Sec. 22. (Abatement of nuisance — injunction.) An
action to enjoin any nuisance defined in this title may be
brought in the name of the United States by the Attorney
General of the United States or by any United States at-
torney or any prosecuting attorney of any state or any
subdivision thereof or by the commissioner or his depu-
ties or assistants. Such action shall be brought and tried
as an action in equity and may be brought in any court
having jurisdiction to hear and determine equity cases.
If it is made to appear by affidavits or otherwise, to the
satisfaction of the court, or judge in vacation, that such
nuisance exists, a temporary writ of injunction shall
forthwith issue restraining the defendant from conduct-
ing or permitting the continuance of such nuisance until
the conclusion of the trial. If a temporary injunction is
prayed for, the court may issue an order restraining the
defendant and all other persons from removing or in
any way interfering with the liquor or fixtures, or other
things used in connection with the violation of this Act
constituting such nuisance. No bond shall be required in
instituting such proceedings. It shall not be necessary for
the court to find the property involved was being unlaw-
fully used as aforesaid at the time of the hearing, but
on finding that the material allegations of the petition
are true, the court shall order that no liquor shall be
manufactured, sold, bartered, or stored in such room,
house, building, boat, vehicle, structure, or place, or any
part thereof. And upon judgment of the court ordering
such nuisance to be abated, the court may order that the
room, house, building, structure, boat, vehicle, or place
shall not be occupied or used for one year thereafter; but
the court may, in its discretion, permit it to be occupied
or used if the owner, lessee, tenant, or occupant thereof
shall give bond with sufficient surety, to be approved by
the court making the order, in the penal and liquidated
sum of not less than $500 or more than $1,000, payable to
the United States, and conditioned that intoxicating lio-
uor will not thereafter be manufactured, sold, bartered,
kept, or otherwise disposed of therein or thereon, and
that he will pay all fines, costs, and damages that may be

490 Federal Criminal Law Procedure.

assessed for any violation of this title upon said property.
(41 Stat. L. 314.)

Sec. 23. (Person when guilty of nuisance — fees of
officers enforcing act — forfeiture of leases.) That any
person who shall, with intent to effect a sale of liquor,
by himself, his employee, servant, or agent, for himself or
any person, company or corporation, keep or carry around
on his person, or in a vehicle, or other conveyance what-
ever, or leave in a place for another to secure, any liquor,
or who shall travel to solicit, or solicit, or take, or accept
orders for the sale, shipment, or delivery of liquor in
violation of this title is guilty of a nuisance and may be
restrained by injunction, temporary and permanent, from
doing or continuing to do any of said acts or things.

In such proceedings it shall not be necessary to show
any intention on the part of the accused to continue such
violation if the action is brought within sixty days fol-
lowing any such violation of the law.

For removing and selling property in enforcing this
Act the officer shall be entitled to charge and receive the
same fee as the sheriff of the county would receive for
levying upon and selling property under execution, and
for closing the premises and keeping them closed a rea-
sonable sum shall be allowed by the court.

Any violation of this title upon any leased premises by
the lessee or occupant thereof shall, at the option of the
lessor, work a forfeiture of the lease. (41 Stat. L. 314.)

Sec. 24. (Violation of injunction — punishment for
contempt.) In the case of the violation of any injunction,
temporary or permanent, granted pursuant to the provi-
sions of this title, the court, or in vacation a judge there-
of, may summarily try and punish the defendant. The
proceedings for punishment for contempt shall be com-
menced by filing with the clerk of the court from which
such injunction issued information under oath setting out
the alleged facts constituting the violation, whereupon the
court or judge shall forthwith cause a warrant to issue
under which the defendant shall be arrested. The trial
may be had upon affidavits, or either party may demand
the production and oral examination of the witnesses.

Intoxicating Liquors. 491

Any person found guilty of contempt under the provi-
sions of this section shall be punished by a line of not
less than $500 or more than $1,000, or by imprisonment of
not less than thirty days nor more than twelve months, or
by both fine and imprisonment. (41 Stat. L. 315.)

Sec. 25. (Possession of liquor or property designed
for manufacture — search warrants.) It shall be unlawful
to have or possess any liqnor or property designed for
the manufacture of liqnor intended for use in violating
this title or which has been so used, and no property,
rights shall exist in any such liquor or property. A search
warrant may issue as provided in Title XT of public law
numbered 24 of the Sixty-fifth Congress, approved June
15, 1917, and such liquor, the containers thereof, and such
property so seized shall be subject to.such disposition as
the court may make thereof. If it is found that s1"1'
liquor or property was so unlawfully held or possessed,
or had been so unlawfully used, the liquor, and all prop-
erty designed for the unlawful manufacture of liquor,
shall be destroyed, unless the court shall otherwise order.
No search warrant shall issue to_search any private
dwelling occupied as such unless it is being used for the
unlawful sale of intoxicating liquor, or unless it is in
jmrl^used for some business purpose such as a store, shop,
saloon, restaurant, hotel, or boarding house. The term
"private dwelling" shall be construed to include the room
or rooms used and occupied not transiently but solely as
a residence in an apartmenl house, hotel, or boarding
house. The property seized on any such warrant shall not
be taken from the officer seizing the same on any writ of
replevin or other like process. (41 Stat. L. 315.)

For Act of June 15, 1917, Title XI, mentioned in the
text, see 1918 Supp. Fed. Stat. Ann. 128.

Sec. 26. (Transportation of liquor unlawfully — seiz-
ure of vehicle or conveyance.) When the commissioner,
his assistants, inspectors, or any officer of the law shall
discover any person in the act of transporting in violation
of the law, intoxicating liquors in any wagon, buggy, au-
tomobile, water or air craft, or other vehicle, it shall
be his duty to seize any and all intoxicating liquors found

492 Federal Criminal Law Procedure.

therein being transported contrary to law. Whenever
intoxicating liquors transported or 'possessed illegally
shall be seized by an officer he shall take possession of
the vehicle and team or automobile, boat, air or water
craft, or any other conveyance, and shall arrest any per-
son in charge thereof. Such officer shall at once proceed
against the person arrested under the provisions of this
title in any court having competent jurisdiction; but
the said vehicle or conveyance shall be returned to the
owner upon execution by him of a good and valid bond,
with sufficient sureties, in the sum double the value of
the property, which said bond shall be approved by said
officer and shall be conditioned to return said property
to the custody of said officer on the day of trial to abide
the judgment of the court. The court upon conviction
of the person so arrested shall order the liquor destroyed,
and unless good cause to the contrary is shown by the
owner, shall order a sale by public auction of the prop-
erty seized, and the officer making the sale, after deduct-
ing: the expenses of keening the property, the fee for the
seizure, and the cost of the sale, shall pav all liens, ac-
cord in ar to their priorities, which are established, by in-
tervention or otherwise at said hearing or in other pro-
ceeding brought for said purpose, as being bona fide
and as having been created without the lienor having
any notice that the carrying vehicle was being used or
was to be used for illegal transportation of liouor, and
shall pav the balance of the nrooeeds into the Treasurv
of the United States as miscellaneous receipts. All liens
ae-ainst nroperty sold under the nrovisions of this sec-
tion shall be transferred from the property to the pro-
ceeds of the sale of the nronertv. Tf, however, no one
shall be found claimin0, the team, vphiele. water or air
craft, or automobile, the takinor of the same, with a
de«eription thereof, shall be advertised in some news-
paper published in the citv or county where taken or if
there be no newspaper published in such city or county,
in a newsnaper haviner circulation in the county, once a
week for two weeks and bv handbills r>osted in three
public places near the place of seizure, and if no claimant

Intoxicating Liquors. 493

shall appear within ten days after the last publication of
the advertisement, the property shall be sold and the pro-
ceeds after deducting the expenses and costs shall be
paid into the Treasury of the United States as miscel-
laneous receipts. (41 Stat. L. 315.)

Sec. 27. (Disposition of seized liquors.) In all cases
in which intoxicating liquors may be subject to be des-
troyed under the provisions of this Act the court shall
have jurisdiction upon the application of the United
States attorney to order them delivered to any depart-
ment or agency of the United States Government for
medicinal, mechanical, or scientific uses, or to order the
same sold at private sale for such purposes to any per-
jsonTnaVing a permit to purchase liquor the proceeds to
be covered into the Treasury of the United States to
the credit of miscellaneous receipts, and all liquor here-
tofore seized in any suit or proceeding brought for vio-
lation of the law may likewise be so disposed of, if not
claimed within sixty days from the date this section takes <
effect. (41 Stat. L* 316'.)

Sec. 28. (Enforcement by Commissioner of Internal
Revenue and assistants — power conferred.) The commis-
sioner, his assistants, agents and inspectors, and all other
officers of the United States, whose duty it is to enforce
criminal laws, shall have all the power and protection
in the enforcement of this Act or any provisions thereof
which is conferred by law for the enforcement of exist-
ing laws relating to the manufacture or sale of intoxi-
cating liquors under the law of the United States. (41
"Slat. L. 316.)

Sec. 29. (Violations of act — penalties.) Any person
who manufactures or sells liquor in violation of this
title shall for a first offense be fined not more than $1,000
or imprisoned not exceeding six months, and for a second
or subsequent offense shall be fined not less than $200
nor more than $2,000 and be imprisoned not less than
one month nor more than five years.

Any person violating the provisions of any permit,
or who makes any false record, report, or affidavit re-

4:94 Federal Criminal Law Procedure.

quired by this title, or violates any of the provisions of
this title, for which offense a special penalty is not pre-
scribed, shall be fined for a first offense not more than
$500; for a second offense not less than $100 nor more
than $1,000 or be imprisoned not more than ninety days;
for any subsequent offense he shall be fined not less than
$500 and be imprisoned not less than three months nor
more than two years years. It shall be the duty of the
prosecuting officer to ascertain whether the defendant has
been previously convicted and to plead the prior con-
viction in the affidavit, information, or indictment. The
penalties provided in this Act against the manufacture
of liquor without a permit shall not apply to a person
for manufacturing nonintoxicating cider and fruit juices
exclusively for use in his home, but such cider and fruit
juices shall not be sold or delivered except to persons
having permits to manufacture vinegar. 41 Stat. L.
316.)

Sec. 30. (Evidence — witnesses — incriminating testi-
mony.) No person shall be excused, on the ground that
it may tend to incriminate him or subject him to a pen-
alty or forfeiture, from attending and testifying, or pro-
ducing books, papers, documents, and other evidence in
obedience to a subpoena of any court in any suit or pro-
ceeding based upon or growing out of any alleged vio-
lation of this Act; but no natural person shall be prose-
cuted or subjected to any penalty or forfeiture for or
on account of any transaction, matter, or thing as to
which, in obedience to a subpoena and under oath, he
may so testify or produce evidence, but no person shall
be exempt from prosecution and punishment for per-
jury committed in so testifying. (41 Stat. L. 317.)

Sec. .31. (Unlawful sale of liquor — venue of prosecu-
tion.)

In case of a sale of liquor where the delivery thereof
was made by a common or other carrier the sale and de-
livery shall be deemed to be made in the county or dis-
trict wherein the delivery was made by such carrier to the
consignee, his agent or employee, or in the county or
district wherein the sale was made, or from which the

Intoxicating Liquors. 4!).")

shipment was made, and prosecution for such sale or
delivery may be had in any such county or district. (41
Stat. L. 317.')

Sec. 32. (Affidavit, information or indictment — suffi-
ciency— separate offenses — bill of particulars.)

In any affidavit, information, or indictment for the vio-
lation of this Act, separate offenses may be united in sep
arate counts and the defendant may be tried on all at
one trial and the penalty for all offenses may be imposed.
It shall not be necessary in any affidavit, information,
or indictment to give the name of the purchaser or to
include any defensive negative averments, but it shall
be sufficient to state that the act complained of was then
and there prohibited and unlawful, but this provision
shall not be construed to preclude the trial court from
directing the furnishing the defendant a bill of particu-
lars when it deems it proper to do so. (41 Stat. L. 317.)

Sec. 33. (Possession of liquor — presumption — arising
— report — possession in private dwelling.) After Febru-
ary 1, 1920, the possession of liquors by any person not
legally permitted under this title to possess liquor shall be
prima facie evidence that such liquor is kept for the pur-
pose of being sold, bartered, exchanged, given away, fur-
nished, or otherwise disposed of in violation of the pro-
visions of this title. Every person legally permitted
under this title to have liquor shall report to a commis-
sioner within ten days after the date when the Eighteenth
Amendment to the Constitution of the United States goes
into effect, the kind and amount of intoxicating liquors
in his possession. But it shall not be unlawful to possess
liquors in one's private dwelling while the same is oc-
cupied and used by him as his dwelling only and such
liquor need not be reported, provided such liquors are
for use only for the personal consumption of the owner
thereof and his family residing in such dwelling and of
Ins bona fide guests when entertained by him therein;
and the burden of proof shall be upon the possessor in
any action concerning the same to prove that such liquor
was lawfully acquired, possessed, and used. (41 Stat.
L. 317.)

496 Federal Criminal Law Procedure.

Sec. 34. (Records and reports — inspection — evidence
— copies.) All records and reports kept or filed under the
provisions of this Act shall be subject to inspection at
any reasonable hour by the commissioner or any of his
agents or by any public prosecutor or by any person
designated by him, or by any peace officer in the State
where the record is kept, and copies of such records and
reports duly certified by the person with whom kept or
filed may be introduced in evidence with like effect as
the originals thereof, and verified copies of such records
shall be furnished to the commissioners when called for.
(41 Stat. L. 317.)

Sec. 35. (Effect of Act on existing legislation — liquor
taxes and penalties — compromising civil causes.) All
provisions of law that are inconsistent with this Act are
repealed only to the extent of such inconsistency and the
regulations herein provided for the manufacture or traf-
fic in intoxicating liquor shall be construed as in addition
to existing laws. This Act shall notj^elieve anyone from
paying any taxes or other charges imposed upon the
manufacture or traffic in such liquor. No liquor revenue
stamps or tax receipts for any illegal manufacture or
sale shall be issued in advance, but upon evidence of such
illegal manufacture or sale a tax shall be assessed against
and collected from the person responsible for such il-
legal manufacture or sale in double the amount now
provided by law, with an additional penalty of $500 on
retail dealers and $1,000 on manufacturers. The pay-
ment of such tax or penalty shall give no right to engage
in the manufacture or sale of such liquor, or relieve any-
one from criminal liability, nor shall this Act relieve any
person from any liability, civi lor criminal, heretofore or
hereafter incurred under existing laws.

The Commissioner, with the approval of the Secretary
of the Treasury, may compromise any civil cause arising
under this title before bringing action in court; and with
the approval of the Attorney General he may compromise
any such cause afteraction thereon has been commenced.
(41 Stat. L. 317.)

Sec. 36. (Invalidity of part of Act — effect as to re-
mainder.)

Intoxicating Liquors. 497

If any provision of this Act shall be held invalid it
shall not be construed to invalidate other provisions of
the Act. (41 Stat. L. 318.)

Sec. 37. (Effect of Act on liquor already manufac-
tured— manufacture of low per cent, alcoholic beverages
— tax.) Nothing herein shall prevent the storage in Unit-
ed States bonded warehouses of all liquor manufactured
prior to the taking effect of this AclTor prevent the trans-
portation of such liquor to_ such warehouse or to any
wholesale druggist for sale to such druggist for purpose
not prohibited when the tax is paid, and permits may be
issued therefor.

A manufacturer of any beverage containing less than
one-half of 1 per centum of alcohol by volume may, on
making application and giving such bond as the commis-
sioner shall prescribe, be given a permit to develop in
the manufacture thereof by the usual methods of fer-
mentation and fortification or otherwise a liquid such as
beer, ale, porter, or wine, containing more than one-half
of 1 per centum of alcohol by volume, but before any such
liquid is withdrawn from the factory or otherwise dis-
posed of the alcoholic contents thereof shall under such
rules and regulations as the commissioner may prescribe
be reduced below such one-half of 1 per centum of alco-
hol: Provided, That such liquid may be removed and
transported, under bond and under such regulations as
the commissioner may prescribe, from one bonded plant
or warehouse to another for the purpose of having the
.alcohol extracted therefrom. And such liquids may be
developed, under permit, by persons other than the manu-
facturers of beverages containing less than one-half of 1
per centum of alcohol by volume, and sold to such manu-
facturers for conversion into such beverages. The al-
cohol removed from such liquid, if evaporated and not
condensed and saved, shall not be subject to tax; if
saved, it shall be subject to the same law as other al-
coholic liquors. Credit shall be allowed on the tax
due on anv alcohol so saved to the amount of any tax
paid upon distilled spirits or brandy used in the fortifica-
tion of the liquor from which the same is saved.

When fortified wines are made and used for the pro-

498 Federal Criminal Law Procedure.

duction of nonbeverage alcohol, and dealcoholized wines
containing less than one-half of 1 per centum of alcohol
by volume, no tax shall be assessed or paid on the spirits
used in such fortification, and such dealcoholized wines
produced under the provisions of this Act, whether car-
bonated or not, shall not be subject to the tax on arti-
ficially carbonated or sparkling wines, but shall be sub-
ject to the tax on still wines only.

In any case where the manufacturer is charged with
manufacturing or selling for beverage purposes any malt,
vinous, or fermented liquids containing one-lialf of 1 per
centum or more of alcohol by volume, or' in any case
where the manufacturer, having been permitted by the
commissioner to develop a liquid such as ale, beer, porter,
or wine containing more than one-half of 1 per centum of
alcohol by volume in the manner and for the purpose
herein provided, is charged with failure to reduce the
alcoholic content of any such liquid below such one-half
of 1 per centum before withdrawing the same from the
factory, then in either such case the burden of proof shall
be on such manufacturer, to show that such liquid so
manufactured, sold, or withdrawn contains less than one-
half of 1 per centum of alcohol by volume. In any suit
or proceeding involving the alcoholic content of any
beverage, the reasonable expense of analysis of such bever-
age shall be taxed as costs in the case. (41 Stat. L. 318.)

Sec. 38. (Employees to enforce provisions of Act —
appointment — civil service.) The Commissioner of In-
ternal Revenue and the Attorney General of the United
States are hereby respectively authorized to appoint and
employ such assistants, experts, clerks, and other em-
ployees in the District of Columbia or elsewhere, and to
purchase such supplies and equipment as they may deem
necessary for the enforcement of the provisions of this
Act, but such assistants, experts, clerks, and other em-
ployees, except^ such executive officers as may be ap-
pointed by the Commissioner or the Attorney General to •
have immediate direction of the enforcement of the pro-
visions of this Act, and persons authorized to issue per-
mits, and agents and inspectors in th field service, shall
be appointed under the rules and regulations prescribed

Intoxicating Liquors. 499

by the Civil Service Act: Provided, That the Commis-
sioner and Attorney General in making such appoint-
ments shall give preference to those who have served in
the military or naval sendee in the recent war, if other-
wise qualified, and there is hereby authorized to be ap-
propriated, out of any money in the Treasury not other-
wise appropriated, such sum as may be required for the
enforcement of the Act including personal services in the
District of Columbia, and for the fiscal year ending June
30, 1920, there is hereby appropriated^ out of any money
in the Treasury not otherwise appropriated, the sum of
$2,000,000 for the use of the Commissioner of Internal
Revenue and $100,000 for the use of the Department of
Justice for the enforcement of the provisions of this Act,
including personal services in the District of Columbia
and necessary printing and binding. (41 Stat. L. 319.)

Sec. 39. (Property of nonviolator of Act proceeded
against — summons.) In all cases wherein the property of
any citizen is proceeded against or wherein a judgment
effecting it might be rendered, and the citizen is not the
one who in person violated the provisions of the law,
sulnrnbns must be issued in due form and served person-
allv, if said person is to be found within the jurisdiction
of the court. (41 Stat. L. 319.)

Title III.

Industrial Alcohol.

Sec. 1. ( Terms defined — ' ' alcohol " — " container. ' ' )
When used in this title —

The term "alcohol" means that substance known as
ethyl alcohol, hydrated oxide of ethyl, of spirit of wine,
from whatever source of whatever processes produced.

The term "container" includes any receptacle, vessel,
or form of package, tank, or conduit used or capable of
use or holding, storing, transferring, or shipment of al-
cohol. (41 Stat. L. 319.)

Industrial Alcohol Plants and Warehouses.

Sec. 2. (Alcohol plants — bonding.) Any person now
producing alcohol shall, within thirty days after the pas-
sage of this Act, make application to the commissioner for

500 Federal Criminal Law Procedure.

registration of his industrial alcohol plant, and as soon
thereafter as practicable the premises shall be bonded
and permit may issue for the operation of such plant, and
any person hereafter establishing a plant for the pro-
duction of alcohol shall likewise before operation make
application, file bond, and receive permit. (41 Stat. L.
319.)

Sec. 3. (Warehouses — bonding — entry, storage and
withdrawal of alcohol — regulations.) Warehouses for
the storage and distribution of alcohol to be used ex-
clusively for other than beverage purposes may be es-
tablished upon filing of application and bond, and is-
suance of permit at such places, either in connection with
the manufacturing plant or elsewhere, as the commis-
sioner may determine; and the entry and storage of
alcohol therein, and the withdrawals of alcohol therefrom
shall be made in such containers and by such means as
the commissioner by regulation may prescribe. (41 Stat.
L. 319.)

Sec. 4. (Transfer of alcohol from one plant or ware-
house to another.) Alcohol produced at any registered
industrial alcohol plant or stored in any bonded ware-
house may be transferred under regulations to any other
registered industrial alcohol plant or bonded warehouse
for any lawful purpose. (41 Stat. L. 320.)

Sec. 5. (Taxes on alcohol — lien.) Any tax imposed
by law upon alcohol shall attach to such alcohol as soon
as it is in existence as such, and all proprietors of in-
dustrial alcohol plants and bonded warehouses shall be
jointly and severally liable for any and all taxes on any
and all alcohol produced thereat or stored therein. Such
taxes shall be a first lien on such alcohol and the prem-
ises and plant in which such alcohol is produced or stored,
together with all improvements and appurtenances there-
unto belonging or in any wise appertaining. (41 Stat. L.
320.)

Sec. 6. (Effect of constitutional amendment on dis-
tilled spirits in bonded warehouses — disposition.) Any
distilled spirits produced and fit for beverage purposes
remaining in any bonded warehouse on or before the date
when the Eighteenth Amendment of the Constitution of

Intoxicating Liquors. '501

the United States goes into effect, may, under regula-
tions, be withdrawn therefrom, either for denaturation
at any bonded denaturing plant or for deposit in a bonded
warehouse established under this Act; and when so with-
drawn, if not suitable as to proof, purity, or quality for
other than beverage purposes, such distilled spirits shall
be redistilled, purified, and changed in proof so as to
render such spirits suitable for other purposes, and hav-
ing been so treated may thereafter be denatured or sold
in accordance with the provisions of this Act. (41 Stat.
L. 320.)

Sec. 7. (Distilleries or bonded warehouses heretofore
legally established — disposition.) Any distillery or bond-
ed warehouse heretofore legally established may, upon
filing application and bond and the granting of permit,
be operated as an industrial alcohol plant or bonded
warehouse under the provisions of this title and regula-
tions made thereunder. (41 Stat. L. 320.)

Sec. 8. (Alcohol how made — use and disposition.)
Alcohol may be produced at any industrial alcohol plant
established under the provisions of this title, from any
raw materials or by any process suitable for the produc-
tion of alcohol, and, under regulations, may be used at
any industrial alcohol plant or bonded warehouse or sold
or disposed of for any lawful purpose, as in this Act
provided. (41 Stat. L. 320.)

Sec. 9. (Exemption of plants and warehouses from
certain statutory provisions. ) Industrial alcohol plants
and bonded warehouses established under the provisions
of this title shall be exempt from the provisions of sec-
tions 3154, 3244, 3258, 3259, 3260, 3263, 3264, 3266, 3267,
3268, 3269, 3271, 3273, 3274, 3275, 3279, 3280, 3283, 3284,
3285, 3286, 3287, 3288, 3289, 3290, 3291, 3292, 3293, 3294,
3295, 3302, 3303, 3307, 3308, 3309, 3310, 3311, 3312, 3313,
3314, and 3327, of the Revised Statutes; sections 48 to
60, inclusive, and sections 62 and 67 of the Act of August
27, 1894 (Twenty-eight Statutes, pages 563 to 568), and
from such other provisions of existing laws relating to
distilleries and bonded warehouses as may, by regula-
tions, be declared inapplicable to industrial alcohol plants
and bonded warehouses established under this Act.

502 Federal Criminal Law Procedure.

Regulations may be made embodying any provisions of
the sections above-enumerated. (41 Stat. L. 320.)

See the title Internal Revenue in 3 Fed. Stat. Ann. (2d
ed.) 954, 3 Fed. Stat. Ann. (1st ed.) 540, for the statutes
mentioned in the text.

Tax-Free Alcohol.

Sec. 10. (Denaturing plants — establishment — sale of
denatured alcohol tax-free — distilled vinegar.) Upon the
filing of an application and bond and issuance of permit
denaturing plants may be established upon the premises
of any industrial alcohol plant, or elsewhere, and shall
be used exclusively for the denaturation of alcohol by
the admixture of such denaturing materials as shall ren-
der the alcohol, or any compound in which it is authorized
to be used, unfit for use as an intoxicating beverage.

Alcohol lawfully denatured may, under regulations, be
sold free of tax either for domestic use or for export.

Nothing in this Act shall be construed to require manu-
facturers of distilled vinegar to raise the proof of any
alcohol used in such manufacture or to denature the same.
(41 Stat. L. 320.)

Sec. 11. (Withdrawals of alcohol tax free.) Alcohol
produced at any industrial alcohol plant or stored in any
bonded warehouse may, under regulations, be withdrawn
tax free as provided by existing law from such plant
or warehouse for transfer to any denaturing plant for
denaturation, or may, under regulations, before or after
denaturation, be removed from any such plant or ware-
house for any lawful tax-free purpose.

Spirits of less proof than one hundred and sixty de-
grees may, under regulations, be deemed to be alcohol for
the purpose of denaturation, under the provisions of this
title.

Alcohol may be withdrawn, under regulations, from
any industrial plant or bonded warehouse tax free by
the United States or any governmental agency thereof,
or by the several States and Territories or any munici-
pal subdivision thereof or by the District of Columbia,
or for the use of any scientific university or college of
learning, any laboratory for use exclusively in scienitfic
research, or for use in any hospital or sanatorium,

Intoxicating Liquors. 50o

But any person permitted to obtain alcohol tax free,
except the United States and the several States and Ter-
ritories and subdivisions thereof, and the District of Co-
lumbia, shall first apply for and secure a permit to pur-
chase the same and give the bonds prescribed under title
II of this Act, but alcohol withdrawn for nonbeverage
purposes for the use of the United States and the several
States, Territories and subdivisions thereof, and the Dis-
trict of Columbia may be purchased and withdrawn sub-
ject only to such regulations as may be prescribed. (41
Stat. L. 321.)

General Provisions.

Sec. 12. (Additional penalties.) The penalties pro-
vided in this title shall be in addition to any penalties
provided in title 2, of this Act, unless expressly otherwise
therein provided. (41 Stat. L. 321.)

Sec. 13. (Regulations by Commissioner of Internal
Revenue.) The commissioner shall from time to time
issue regulations respecting the establishment, bonding,
and operation of industrial alcohol plants, denaturing
plants, and bonded warehouses authorized herein, and
the distribution, sale, export, and use of alcohol which
may be necessary, advisable, or proper, to secure the rev-
enue, to prevent diversion of the alcohol to illegal uses,
and to place the nonbeverage alcohol industry and other
industries using such alcohol as a chemical raw material
or for other lawful purposes upon the highest possible
plane of scientific and commercial efficiency consistent
with the interest of the Government, and which shall
insure an ample supply of such alcohol and promote its
use in scientific research and the development of fuels,
dyes, and other lawful products. (41 Stat. L. 321.)

Sec. 14. (Loss of alcohol by evaporation, etc. — refund
of tax.) Whenever any alcohol is lost by evaporation or
other shrinkage, leakage, casualty, or unavoidable cause
during distillation, redistillation, denaturation, withdraw-
al, piping, shipment, warehousing, storage, packing,
transfer, or recovery, of any such alcohol the commis-
sioner may remit or refund any tax incurred under exist-
ing law upon such alcohol, provided he is satisfied that

504 Federal Criminal Law Procedure.

the alcohol has not been diverted, to any illegal use: Pro-
vided, also, That such allowance shall not be granted
if the person claiming same is indemnified against such
loss by a valid claim of insurance. (41 Stat. L. 321.)

ec. 15. (Operators of industrial alcohol or denatur-
ing plants — violation of laws and regulations — penalty.)
whoever operates an industrial alcohol plant or a de-
naturing plant without complying with the provisions of
this title and lawful regulations made thereunder, or
whoever withdraws or attempts to withdraw or secure
tax free any alcohol subject to tax, or whoever otherwise
violates any of the provisions of this title or of regula-
tions lawfully made thereunder shall be liable, for the
first offense, to a penalty of not exceeding $1,000, or im-
prisonment not exceeding thirty days, or both, and for a
second, or, cognate offense to a penalty of not less than
$100 nor more than $10,000, and to imprisonment of not
less than thirty days nor more than one year. It shall be
lawful for the commissioner in all cases of second or
cognate offense to refuse to issue for a period of one year
a permit for the manufacture or use of alcohol upon the
premises of any person responsible in any degree for
the violation. (41 Stat. L. 321.)

Sec. 16. (Collection of taxes — assessment or stamp.)
Any tax payable upon alcohol under existing law may be
collected either by assessment or by stamp as regulations
shall provide; and if by stamp, regulations shall issue
prescribing the kind of stamp to be used and the manner
of affixing and canceling the same. (41 Stat. L. 322.)

Sec. 17. (Release of seized property.) When any
property is seized for violation of this title it may be
released to the claimant or to any intervening party, in
the discretion of the commissioner, on a bond given and
approved. (41 Stat. L. 322.)

Sec. 18. (Application of administrative laws to this
title.) All administrative provisions of internal-revenue
law, including those relating to assessment, collection,
abatement, and refund of taxes and penalties, and the
seizure and forfeiture of property, are made applicable
to this title in so far as they are not inconsistent with
the provisions thereof. (41 Stat. L. 322.)

Intoxicating Liquoks. '505

Sec. 19. (Prior statutes relating to alcohol — repeal.)
All prior statutes relating to alcohol as defined in this
title are hereby repealed in so far as they are inconsistent
with the provisions of this title. (41 Stat. L. 322.)

Sec. 20. (Canal Zone — prohibition extended to — of-
fenses.) That it shall be unlawful to import or introduce
into the Canal Zone, or to manufacture, sell, give away,
dispose of, transport, or have in one's possession or under
one's control within the Canal Zone, any alcoholic, fer-
mented, brewed, distilled, vinous, malt, or spirituous liq-
uors, except for sacramental, scientific, pharmaceutical,
industrial, medicinal purposes, under regulations to be
made by the President, and any such liquors within the
Canal Zone in violation hereof shall be forfeited to the
United States and seized: Provided, That this section
shall not apply to liquor in transit through the Panama
Canal or on the Panama Railroad.

That each and every violation of any of the provisions
of this section shall be punished by a fine of not more
than $1,000 or imprisonment not exceeding six months
for a first offense, and by a fine not less than $200 nor
more than $2,000 and imprisonment not less than one
month nor more than five years for a second or subse-
quent offense.

That all offenses heretofore committed within the Ca-
nal Zone may be prosecuted and all penalties therefor
enforced in the same manner and to the same extent as
if this Act had not been passed. (14 Stat. L. 322.)

Sec. 21. (Act when in effect.) Titles I and III and
sections 1, 27, 37, and 38 of title II of this Act shall take ef-
fect and be in force from and after the passage and ap-
proval of the Act. The other sections of titlell shall take
effect and be in force from and after the date when the
eighteenth amendment of the Constitution of the Uuited
States goes into effect. (41 Stat. 322.) "

Sec. 1104. Decisions Under Different Provisions of
the Volstead Act.

There is some difference in the holding of the courts
with reference to the forfeiture features of the Act; the
following holding that the vehicle is forfeited even though
the owner of the vehicle did not know it was to be used

506 Federal Criminal Law Procedure.

in the illegal transportation of liquor, under Sec. 3450 of
the Eevised Statutes, Compiled Statutes, Sec. 6352. Lo-
gan vs. U. S., 260 F. 746; U. S. vs. Mincey, 254 F. 287;
U. S. vs. Fenton, 268 F. 221; U. S. vs. One, 272 F. 188;
Shawnee vs. U. S., 249 F. 583; U. S. vs. Brockley, 266
F. 1001; U. S. vs. Burns, 270 F. 681; IT. S. vs. Masters,
264 F. 250; see also U. S. vs. One, 259 F. 645; U. S. vs.
One, 259 F. 641; U. S. vs. One, 257 F. 251; U. S. vs. Auto,
279 F. 891; Ford vs. U. S., 260 F. 657; 272 F. 491; U. S.
vs. One, 262 F. 375; 273 F. 253; 273 F. 275; U. S. vs. One
Machine, 267 F. 501; U. S. vs. Hydes, 267 F. 470; vehicle
, will be condemned when, U. S. vs. Burns, 270 F. 681.

The Act does not authorize the forfeiture of a steam-
ship, The Saxon, 269 F. 639.

The Act provides that the libeled carriage or property
may be released on bond, U. S. vs. Chevrolet, 267 F. 1021.

Auto used by chauffeur for unlawful transportation
without owner's knowledge mav be forfeited. Lewis vs.
Me( 'ailliv, 274 F. 496; see also U. S. vs. One, 274 F. 473;
U. S. vs. One, 274 F. 470.

A suit cannot be maintained under section 3450, for the
forfeiture of a vehicle, since the enactment of the Na-
tional Prohibition Act, U. S. vs. One, 274 F. 926.

Sec. 1105. Volstead Act Repeals Some of Revenue
Laws. Upon the question of the repeal of existing in-
ternal revenue statutes by the Volstead Act there has
been some difference in the holding of the courts.

In U. S. vs. Sacein, 269 F. 33, it was held that the dis-
tillery law was not repealed by the Volstead Act; in
U. S. vs. Turner, 266 F. 248, it was held that the Volstead
Act did not repeal the statute which punishes for the re-
moval of untaxed liquors; in U. S. vs. Yuginni, 266 F.
746, it was held that the illicit distilling act was repealed
by the pro act, also in Sanford vs. U. S., 274 F. 369; in
Violette vs. Walsh, 272 F. 1014, it was held that the act
does not repeal the tax statutes as there was no presump-
tion that one was manufacturing for a forbidden purpose;
in Ketchum vs. U. S., 270 F. 416, it was held that the pro
act repeals many of the revenue acts; in ex parte Law-
rence, 273 F. 876, it was held that the pro act does not
repeal the revenue acts; in U. S. vs. Windham, 264 F. 376,

Intoxicating Liquoks. 507

and Farley vs. U. S., 269 F. 721, it is held that the act
repeals certain of the revenue measures while the con-
trary is held in 269 F. 820; in U. S. vs. Stafoff, 268 F.
417 and U. S. vs. Puhac, 268 F. 392, it was held that the
act repeals the still and mash statutes. But see Duval 1
vs. Dyche, 275 F. 440.

In Tisch vs. U. S., 274 F. 208, it was held that the act
does not effect prior offenses.

Sec. 1106. Decisions Continued.

Inducing', etc., De Moss vs. U. S., 250 F. 87; Voves vs.
U. S., 249 F. 191.

The Volstead Act does not authorize the seizure of liq-
uor owned before the act and intended for personal use,
U. S. Supreme Court, November 8, 1920; 41 Sup. Ct.
Rep. 30.

The state may prohibit even for personal use since the
passage of the Webb-Kenyon Act, was held in Clark vs.
Express Company, U. S. Sup. Ct. Jan. 1917, but it is
questioned whether this applies to the Volstead Act. In
U. S. vs. Peterson, 268 F. 864, it was held that a con-
viction by a state court prevents a prosecution by the
United States for the same act.

For a definition of peace officers under the act see U. S.
vs. Viess, 273 F. 279.

A prohibition agent may hold an iron safe for a rea-
sonable time, when IT. S. vs. Metzger, 270 F. 291.

Prosecutions may be had under this law by informa-
tion, Young vs. U.'S., 272, F. 967.

The state may go more rigidly than does the federal
statutes, 270 F. 315.

Evidence secured by illegal search will not be allowed at
the trial, 267 F. 866, also see illegal search and seizure,
herein, under Art. 4 of the Constitution.

A penalty under the prohibition act must be collected\
by suit and not by distress warrant, Kelly vs. Lewelling,
274 F. 112.

The eighteenth amendment was lawfully adopted, State
vs. Palmer, U. S. Sup. Ct. June, 1920; 40 Sup. Ct. Hep.
486; method of ratifying the amendment, Hawke vs.
Smith, 40 Sup. Ct. Rep. 495; the eighteenth amendment
does not abrogate the clue process provision of the con-

508 Federal Criminal, Law Procedure.

stitution and there is no right to seize in the home, etc.,
U. S. vs. Crossen, 264 F. 459. National pro. act is con-
stitutional, 274 F. 245.

A search warrant will not be issued on belief, etc., TJ.
J3. vs. Rydowski, 267 F. 866.

For right to search the person and also for possession
S see U. S. vs. Murphy, 264 F. 842, and Hunter vs. U. S.,
264 F. 831.

For allegations necessary in an application for an in-
junction under the act see U. S. vs. Cohn, 268 F. 423.

Search warrant must be properly issued and cannot be
issued against John Doe, U. S. vs. Borkowski, 268 F. 408.

Preserved sweet cider, when U. S. vs. Dodsen, 268 F.
397.

Cider which exceeds the per cent is sold at the defend-
ant's peril since intent is not an element of the act, U.
S. vs. Mathie, 274 F. 225.

Illegal searches and seizures must not be used in evi-
dence, U. S. vs. Slusser, 270 F. 818.

The Alaska Act was not repealed by the Volstead Act,
Abbate vs. U. S., 270 F. 735.

Imprisonment may be imposed for the first offense,
Dusold vs. U. S., 270 F. 574.

For a discussion of the state power and effect on the
United States proceedings and vice versa see U. S. vs.
Holt, 270 F. 639 and ex parte Finegan, 270 F. 665.

Sec. 1107. Opium, or Cocoa Leaves, and Salts, De-
rivatives or Preparations, Continued.

The Act of February 24, 1919, C. 18, Sec. 1008, provides
for the forfeiture and confiscation of opium and cocoa
leaves and all of their salts and derivatives and com-
pounds when found in the possession of any person or
persons charged with any violation of the Act of October
1, 1890, as amended by the Acts of March 3, 1917, Feb-
ruary 9, 1919, and January 17, 1914, and December 17,
1914, provided such person Or persons be convicted.

The act also provides for the confiscation and forfeiture
of any of such drugs which may come into the possession
of the United States from unknown owners in the en-
forcement of said acts; the act provides that such drugs

Intoxicating Liquors. 509

shall not be destroyed unless they are of no value for
medical or scientific purposes.

Sec. 1108. Narcotic Decisions.

Some confusion exists as to whether the exceptions
contained in the Act of December 17, 1914, Sec. 271 E,
shall be negatived in the indictment. In U. S. vs. Lowen-
thal, 257 F. 444, holds that the exceptions need not be
negatived while U. S. vs. Carney, 228 F. 163, holds that
they must be negatived; see also Thurston vs. U. S., 241
F. 335; U. S. vs. Darcy, 243 F. 739; U. S. vs. Hammers,
241 F. 542; U. S. vs. Jin, 225 F. 1003; Fyke vs. U. S.,
254 F. 227; Oakes vs. U. S., 260 F. 830; the statute with
the exception, of section 8 thereof, is constitutional, U.
S. vs. Jin, 253 F. 213; Fyke vs. U. S., 254 F. 227; Baldwin
vs. U. S., 238 F. 794; U. S. vs. Jin, 241 U. S., 394; U. S.
vs. Doremus, U. S. Sup. Ct. March 3, 1919; that parts of
the act are unconstitutional, U. S. vs. Denker, 255 F. 339;
Blunt vs. U. S., 255 F. 332.

This act, the act of 1914, does not interfere with the
older statutes relating to opium, Gwee Woe vs. IT. S., 250
F. 428.

The act of Jan. 17, 1914, advised penalties for importa-
tion and for sending to China opium, pages 2011-13,
Barnes 1919 Code.

The state can also regulate the opium traffic or dealings
in narcotics, State vs. Mortinson, 41 Sup. Ct. Rep. 425.

It is not necessary to allege the defrauding of the gov-
ernment in an indictment, Hovt vs. U. S., 273 F. 792;
Barbot vs. U. S., 273 F. 919.

It was not intended that the act should punish for pos-
session for one's personal use, U. S. vs. Woods, 224 F.
278; Pierriero vs. U. S., 271 F. 912; U. S. vs. Jin Fuev
Moy, Sup. Ct. U. S. Oct. Term, 1915; 241 U. S., 394; U.
S. vs. Ah Hung, 243 F. 762; U. S. vs. Wilson, 225 F. 82.^

For cases treating of a conspiracy to violate this sec-
tion and to import see Proffitt vs. U. S., 264 F. 299; Wal-
lace vs. U. S., 243 F. 300; Shepard vs. U. S., 236 F. 73.

The act relates to and covers "every person," Wilson
vs. U. S., 229 F. 344.

The court will take judicial notice that opium is not
grown in the United States, U. S. vs. Brown, 224 F. 135,
but see Contra 241 U. S. 399.

510 Federal Criminal Law Procedure.

The writing of prescriptions is not a violation, Fore-
man vs. U. S., 255 F. 621; U. S. vs. Doremus, 246 F. 958;
Hughes vs. U. S., 253 F. 543; U. S. vs. Reynolds, 244 F.
991.

But such prescription must be in good faith and must
not in fact be a method for selling, if so such course would
constitute a violation, Jin Foey Moy vs. U. S., 41 Sup.
Ct. Eep. 98; U. S. vs. Charter, 227 F. 331; Tucker vs.
Williamson, 229 F. 201; U. S. vs. Curtis, 229 F. 288; U.
S. vs. Hoyt, 255 F. 927; Webb vs. U. S., IT. S. Sup. Ct.
March 1919; Melanson vs. U. S., 256 F. 783; Doremus
vs. U. S., 262 F. 849; Trader vs. U. S., 260 F. 923.

For a failure to keep duplicate orders see 237 F. 730;
a physician who keeps for his "own use" not in violation,
U. S. vs. Parsons, 261 F. 223; an offense may be based on
a single sale, Hosier vs. U. S., 260 F. 155.

An indictment which charges sales and quantities to
persons unknown held sufficient in Gregory vs. U. S., 272
F. 119; for an indictment decision see Stetson vs. U. S.,
257 F. 689; also U. S. vs. Friedman, 224 F. 276; also a
druggist is not always protected by a prescription. It
must be shown to be in good faith, Friedman vs. U. S.,
260 F. 388.

For form of indictment for sale in "original" package
see Dean vs. U. S., 266 F. 694.

CHAPTER XIII.

SLAVE TRADE AND PEONAGE.

§ 272. Legislation Founded on Amendments.

273. Confining or Detaining Slaves on Board Vessel.

274. Seizing Slaves on Foreign Shore.

275. Bringing Slaves Into the United States.

276. Equipping Vessels for Slave Trade.

277. Transporting Persons to be held as Slaves.

278. Hovering on Coast With Slaves on Board.

279. Serving in Vessels Engaged in Slave Trade.

280. Receiving or Carrying Away any Person to be Held as a

Slave.

281. Equipping, Etc., Vessels for Slave Trade.

282. Penalty on Persons Building, Equipping, Etc., Vessels.

283. Forfeiture of Vessel Transporting Slaves.

284. Receiving Persons on Board to be Sold as Slaves.

285. Vessel Found Hovering on Coast.

286. Forfeiture of Interest in Vessels Transporting Slaves.

287. Seizure of Vessels Engaged in the Slave Trade.

288. Proceeds of Condemned Vessels — How Distributed.

289. Disposal of Persons Found on Board Seized Vessels.

290. Apprehension of Officers and Crew.

291. Removal of Persons Delivered from Seized Vessels.

292. To What Port Captured Vessel Sent.

293. When Owners of Foreign Vessels Shall Give Bond.

294. Instructions to Commanders of Armed Vessels.

295. Kidnapping.

296. Holding or Returning to Peonage.

296a. Involuntary Servitude, Etc., — Meaning of.

297. Obstructing Execution of Above.

298. Bringing Kidnapped Persons Into the United States.

§ 272. Closely akin to the offenses against the elective
franchise and civil rights of citizens heretofore treated in
Chapter X., are some of the offenses to be treated in this
chapter; both of which arise by reason of legislation
under the authority of the Thirteenth and Fourteenth
Amendments to the Constitution.

§ 273. Confining or Detaining Slaves on Board Ves-
sel.— Section 5375 of the 1878 Statutes, is practically re-
enacted in the new Code, as Section 246, with the excep-

(511)

512 Federal Criminal Law Procedure.

tion that the word "person" is substituted for the words
"negro or mulatto;" and such new section is as follows:

"See. 246. Whoever, being of the crew or ship's company of any-
foreign vessel engaged in the slave trade, or being of the crew or
ship's company of any vessel owned wholly or in part, or navigated
for or in behalf of any citizen of the United States, forcibly confines
or detains on board such vessel any person as a slave, or, on board
such vessel, offers or attempts to sell as a slave any such person, or
on the high seas, or anywhere on tide water, transfers or delivers to
any other vessel any such person with intent to make such person
a slave, or lands or delivers on shore from on board such vessel any
person with intent to make sale of, or having previously sold such
person as a slave, is a pirate, and shall be imprisoned for life."

In prosecutions under this section, it must be alleged
and shown that the defendant was one of the ship's com-
pany, and that he received or detained on board one or
more persons with intent to make slaves of them, or aided
and abetted others in doing so; and, of course, that he
was a citizen of the United States. United States vs.
Darnaud, 3 Wallace, Jr., 143. In United States vs. Wes-
terveldt, 5 Blatchf., 30, the Court said that there are four
descriptions of the offense to be found in this section:
first, a seizing the negroes, now "persons;" second, for-
cibly bringing and carrying them on board; third, de-
coying them; fourth, receiving them on board of the ves-
sel.

It is the intent to make a slave that constitutes the es-
sentials of the offense. Neither the seizing, nor forcibly
bringing or carrying, or receiving, a person on board, is
any offense without such intent. United States vs. Bat-
tiste, Second Summ., 240; United States vs. Libby, 1 W.
& M., 221; United States vs. Corrie, Brun. Col. Cases,
686, 25 Federal Case No. 14869. In the Westervelt case,
cited supra, the landing and seizing of negroes, and the
forcibly bringing and carrying them on board compre-
hended the use of force, and, therefore, the decoying of
them and the receiving them on board, do not constitute
force.

It is entirely immaterial, under the Westervelt case,
under U. S. vs. Brown, 24 Federal Case No. 14656, as to

Slave Trade and Peonage. 513

the ownership of the vessel, if the defendant is an Ameri-
can citizen.

§ 274. Seizing Slaves on Foreign Shore.— Old Section
5376 becomes Section 247 of the new Code, in the follow-
ing words:

"Sec. 247. Whoever, being of the crew or ship's company of any
foreign vessel engaged in the slave trade, or being of the crew or ship's
company of any vessel owned in whole or in part, or navigated for, or
o nbehalf of, any citizen of the United States, lands from such vessel,
and on any foreign shore, seizes any person with intent to make
such person a slave, or decoys, or forcibly brings, or carries, or
receives such person on board such vessel, with like intent, is a pir-
ate, and shall be imprisoned for life."

The substitution of the word "person" for the words
"negro or mulatto" is made in the new law. In the case
of the United States vs. Corrie, 25 Federal Cases, 658,
the Court held that even though a person was on board
the vessel who owned the negroes or mulattoes, he could
not be convicted or punished under this statute, unless
he was of the crew or ship's company.

§ 275. Bringing Slaves Into the United States. — Old
Section 5377 becomes Section 248 of the new Code, with-
out substantial change, except that the words "negro
mulatto, or person of color" become simply the word
' ' person : ' '

"Sec. 248. Whoever brings within the jurisdiction of the United
States, in any manner whatsoever, any person from any foreign
kingdom or country, or from sea, or holds, sells, or otherwise dis-
poses of, any person so brought in, as a slave, or to be held to service
or labor, shall be fined not more than ten thousand dollars, one half
to the use of the United States and the other half to the use of the
party who prosecutes the indictment to effect; and, moreover, shall
be imprisoned not more than seven years."

§ 276. Equipping Vessels for Slave Trade. — Section
5378 of the old statutes becomes Section 249 of the new
Code, with the change of the words "negro, mulatto, or
person of color ' ' to the word ' ' person :

"Sec. 249. Whoever builds, fits out, equips, loads, or otherwise pre-
pares, or sends away, either as master, factor, or owner, any vessel,
in any port or place within the jurisdiction of the United States, or
33

514 Federal Criminal Law Procedure.

causes such vessel to sail from any port or place whatsoever, within
such jurisdiction, for the purpose of procuring any person from any
foreign kingdom or country to be transported to any port or place
whatsoever, to be held, sold, or otherwise disposed of as a slave, or
held to service or labor, shall be fined not more than five thousand
dollars, one-half to the use of the United States and the other half to
the use of the person prosecuting the indictment to effect; and shall,
moreover, be imprisoned not more than seven years."

§ 277. Transporting Persons to Be Held as Slaves. —
Section 5379 of the old Code becomes Section 250 of the
new Code in the following words:

"Sec. 250. Whoever, within the jurisdiction of the United States,
takes on board, receives, or transports from any foreign kingdom or
country, or from sea, any person in any vessel, for the purpose of
holding, selling, or otherwise disposing of such person as a slave, or
to be held to service or labor, shall be punished as prescribed in the
section last preceding."

The change in this section is made by the substitution
of the word "person" for the words "negro, mulatto, or
person of color."

§ 278. Hovering on Coast With Slaves on Board. —
Section 5380 of the old statutes becomes Section 251 of
the new Code in the following words:

"Sec. 251. Whoever, being the captain, master, or commander of
any vessel found in any river, port, bay, harbor, or on the high seas,
within the jurisdiction of the United States, or hovering on the coast
thereof, having on board any person, for the purpose of selling such
person as a slave, or with intent to land such person for any such
purpose, shall be fined not more than ten thousand dollars and im-
prisoned not more than four years."

The change from the old to the new is the substitution
of the word "person" for the words "negro, mulatto, or
person of color."

§ 279. Serving in Vessels Engaged in Slave Trade. —
Sections 5381 and 5382 of the old Code relate to slave
trade, and their salient points are comprehended in new
Section 252 in the following words:

"Sec. 252. Whoever, being a citizen of the United States, or other
person residing therein, voluntarily serves on board of any vessel em-
ployed or made use of in the transportation of slaves from any foreign

Slave Trade and Peonage. 515

country or place to another, shall be fined not more than two thou-
sand dollars and imprisoned not more than two years."

§ 280. Receiving or Carrying Away Any Person to Be
Sold or Held as a Slave.— Section 5524 of the old statutes
becomes Section 253 of the new Code, in the following
words:

"Sec. 253. Whoever, being the master or owner or person having
charge of any vessel, receives on board any other person, with the
knowledge or intent that such person is to be carried from any place
subject to the jurisdiction of the United States to any other place,
to be held or sold as a slave, or carries away from any place subject to
the jurisdiction of the United States any such person, with the intent
that he may be so held or sold as a slave, shall be fined not more than
five thousand dollars, or imprisoned not more than five years, or both."

§ 281. Equipping, Etc. Vessels for Slave Trade. —
Section 5551 of the old statutes becomes Section 245 of
the new Code, as follows:

"Sec. 254. No person shall, for himself or for another, as master,
factor, or owner, build, fit, equip, load, or otherwise prepare any
vessel in any port or place within the jurisdiction of the United States,
or cause any vessel to sail from any port or place within the juris-
diction of the United States for the purpose of procuring any person
from any foreign kingdom, place, or country to be transported to any
port or place whatsoever, to be held, sold, or otherwise disposed of,
as a slave, or to be held to service or labor; and every vessel so
built, fitted out, equipped, laden, or otherwise prepared, with her
tackle, apparel, furniture, and lading, shall be forfeited; one moiety
to the use of the United States and the other to the use of the person
who sues for the forfeiture and prosecutes the same to effect."

A consideration of this section will be found in charge
to the grand jury, 30 Federal Case No. 18268, and 30 Fed-
eral Case 18269a.

In the case of in re Sah Quah, 31 Federal, 327, Judge
Dawson held that this legislation was founded upon the
Thirteenth Amendment to the Constitution, and that a
custom which prevailed among the uncivilized tribes of
Indians in Alaska, whereby slaves were bought and sold
and held in servitude against their will, even though such
Indians were not citizens of the United States, they were
dependent subjects, and that such custom and servitude
was contrary to this legislation, and contrary to the Thir-

516 Federal Criminal Law Procedure.

tenth Amendment to the Constitution, and that a per-
son so held in slavery would be released by the Court
upon writ of habeas corpus.

§ 282. Penalty on Persons Building, Equipping, Etc.
— Section 5552 of the old Revised Statutes becomes Sec-
tion 255 in the new Code, as follows:

"Sec. 255. Whoever so builds, fits out, equips, loads or otherwise
prepares or sends away any vessel, knowing or intending that the
same shall be employed in such trade or business, contrary to the
provisions of the section last preceding, or in any way aids or abets
therein, shall, besides the forfeiture of the vessel, pay the sum of
two thousand dollars; one moiety thereof to the use of the United
States and the other moiety thereof to the use of the person who sues
for and prosecutes the same to effect."

§ 283. Forfeiture of Vessel Transporting Slaves. —
Section 5553 of the old statutes becomes Section 256 of
the new Code, as follows:

"Sec. 256. Every vessel employed in carrying on the slave trade
or on which is received or transported any person from any foreign
kingdom or country, or from sea, for the purpose of holding, selling
or otherwise disposing of such person as a slave, or holding such per-
son to service or labor, shall, together with her tackle, apparel, furni-
ture, and goods and effects which may be found on board, or which
may have been imported thereon in the same voyage, be forfeited;
one moiety to the use of the United States and the other to the use
of the person who sues for and prosecutes the forfeiture to effect."

In United States vs. Schooner, 2 Paine, 25 Federal
Cases, No. 14755; the "Mary Ann," 16 Federal Cases No.
9194; and the Charge of to the Grand Jury, 30 Federal
Cases, No. 18268, will be found a consideration of this
section. The 5 Opinion of the Attorneys General, page
724, also contains an opinion upon seizure for engaging
in the slave trade.

The change in this section consists in the substitution
of the word ' ' person ' ' for the words ' ' negro, mulatto, or
person of color."

§ 284. Receiving Persons on Board to be Sold as
Slaves. — Old Section 554 becomes new Section 257 in
these words:

"Sec. 257. Whoever, being a citizen of the United States, takes
on board, receives, or transports any person for the purpose of selling

Slave Trade and Peonage. 517

such person as a slave shall, in addition to the forfeiture of the ves-
sel, pay for each person so received on board or transported the sum
of two hundred dollars, to be recovered in any court of the United
States; the one moiety thereof to the use of the United States and
the other moiety to the use of the person who sues for and prose-
cutes the same to effect."

The change in this section consists in the substitution
of the word "person" for the words "negro, mulatto, or
person of color. ' '

§ 285. Vessel Found Hovering on Coast.— Old Section
5555 becomes new Section 258, as follows:

Sec. 258. Every vessel which is found in any river, port, bay, or
harbor, or on the high seas, within the jurisdiction of the United
States, or hovering on the coasts thereof and having on board any
person, with intent to sell such person as a slave, or with intent to
land the same for that purpose, either in the United States, or else-
where, shall, together with her tackle, apparel, furniture, and the goods
or effects on board of her, be forfeited to the United States."

The change in this section consists in the substitu-
tion of the word "person" for the words "negro, mulatto,
or person of color."

§ 286. Forfeiture of Interest in Vessels Transporting
Slaves. — Section 259 of the new Code takes the place of
Section 5556 of the old statutes, and is as follows:

"Sec. 259. It shall be unlawful for any citizen of the United States,
or other person residing therein, or under the jurisdiction thereof,
directly or indirectly to hold or have any right or property in any
vessel employed or made use of in the transportation or carrying of
slaves from one foreign country or place to another, and any such
right or property shall be forfeited, and may be libeled and condemn-
ed for the use of the person suing for the same. Whoever shall vio-
late the prohibition of this section shall also forfeit and pay a sum
of money equal to double the value of his right or property in such
vessel; and shall also forfeit a sum of money equal to double the
value of the interest he had in the slaves which at any time may be
transported or carried in such vessels."

§ 287. Seizure of Vessels Engaged in the Slave Trade.
— Section 5557 of the old statutes becomes Section 260 of
the new Code, as follows:

"Sec. 260. The President is authorized, when he deems it expedient,
to man and employ any of the armed vessels of the United States to
cruise wherever he may judge attempts are making to carry on the

518 Federal Criminal Law Procedure.

slave trade, by citizens or residents of the United States, in contraven-
tion of laws prohibitory of the same; and, in such case, he shall in-
struct the commanders of such armed vessels to seize, take, and
bring into any port of the United States, to be proceeded against ac-
cording to law, all American vessels, wheresoever found, which may
have on board, or which may be intended for the purpose of taking on
board, or of transporting, or may have transported any person, in
violation of the provisions of any Act of Congress prohibiting the
traffic in slaves."

§ 288. Proceeds of Condemned Vessels; How Dis-
tributed.— Section 5558 of the old statutes is so modified
in Section 261 of the new Code, in conformity with the
abolition of prize money by Congress, as to require the
proceeds of all forfeitures to be paid into the Treasury
of the United States, and is in the following words:

"Sec. 261. The proceeds of all vessels, their tackle, apparel, and
furniture, and the goods and effects on board of them, which are so
seized, prosecuted, and condemned, shall be paid into the Treasury of
the United States."

§ 289. Disposal of Persons Found on Board Seized
Vessel. — Section 5559 of the old Code, becomes Section
262 of the new Code, by the mere change of the words
"negro, mullatto, or person of color," to the word "per-
son," and is in the following words:

"Sec. 262. The officers of the vessel making such seizure shall safely
keep every person found on board of any vessel so seized, taken, or
brought into port for condemnation, and shall deliver every such person
to the marshal of the district into which he may be brought, if into a
port of the United States, or if elsewhere, to such person as may be
lawfully appointed by the President, in the manner directed by law,
transmitting to the President, as soon as may be after such delivery,
a descriptive list of such persons, in order that he may give directions
for the disposal of them."

§ 290. Apprehension of Officers and Crew. — Section
5560 of the old Code becomes Section 263 of the new Code
in the following words:

"Sec. 263. The commanders of such commissioned vessels shall
cause to be apprehended and taken into custody every person found
on board of such offending vessel so seized and taken, being of the
officers or crew thereof, and him convey, as soon as conveniently may

Slave Trade and Peonage. 519

be, to the civil authority of the United States, to be proceeded against
in due course of law."

§ 291. Removal of Persons Delivered from Seized
Vessels.— Section 5571 of the 1878 Statutes, by substitut-
ing the word " persons" for the words "negroes, mulat-
toes, or persons of color," becomes Section 264 of the
new Code, as follows:

"Sec. 264. The President is authorized to make sucti regulations
and arrangements as he may deem expedient for the safe keeping,
support, and removal beyond the limits of the United States of all
such persons as may be so delivered and brought within its juris-
diction."

§ 292. To What Port Captured Vessels Sent.— Sec-
tion 5563 of the old Code, by the addition of the words
"or District," becomes Section 265 of the new Code, as
follows:

"Sec. 265. It shall be the duty of the commander of any armed
vessel of the United States, whenever he makes any capture under
the preceding provisions, to bring the vessel and her cargo, for ad-
judication, into some port of the State, Territory, or District to which
such vessel so captured may belong, if he can ascertain the same;
if not, then into any convenient port of the United States."

§ 293. When Owners of Foreign Vessels Shall Give
Bond. — By substituting the words "clearing from any
port within the jurisdiction of the United States," for
the words "clearing out for any of the coasts or king-
doms of Africa," Section 5564 of the old statutes becomes
Section 266 of the new Code, as follows:

"Sec. 266. Every owner, master, or factor of any foreign vessel
clearing from any port within the jurisdiction of the United States,
and suspected to be intended for the slave trade and the suspicion
being declared to the officer of the customs by any citizen, on oath,
and such information being to the satisfaction of the officer, shall
first give bond, with sufficient sureties, to the Treasurer of the United
States that none of the natives of any foreign country or place shall
be taken on board such vessel to be transported or sold as slaves
in any other foreign port or place whatever, within nine months
thereafter."

§ 294. Instructions to Commanders of Armed Vessels.
— By changing the words "negroes, mulattoes, and per-

520 Federal Criminal Law Procedure.

sons of color" to the word "persons," and the words
"coast of Africa" for the words "country from which
they were taken," Section 5567 of the old statutes be-
comes Section 267 of the new Code, as follows:

"Sec. 267. The President is authorized to issue instructions to the
commanders of armed vessels of the United States, directing them,
whenever it is practicable, and under such rules and regulations as
he may prescribe, to proceed directly to the country from which they
were taken, and there hand over to the agent of the United States
all such persons, delivered from on board vessels seized in the prose-
cution of the slave trade; and they shall afterward bring the captured
vessels and persons engaged in the prosecuting such trade to the
United States for trial and adjudication."

§ 295. Kidnapping. — Section 5525 of the old Code be-
comes Section 268 of the new Code, in the following
words:

"Sec. 268. Whoever kidnaps or carries away any other person,
with the intent that such other person be sold into involuntary ser-
vitude, or held as a slave; or who entices, persuades, or induces any
other person to go on beard any vessel or to any other place with the
intent that he may be made or held as a slave, or sent out of the
country to be so made or held; or who in any way knowingly aids
in causing any other person to be held, sold, or carried away to be
held or sold as a slave, shall be fined not more than five thousand
dollars, or imprisoned not more than five years, or both."

§ 296. Holding or Returning to Peonage. — The most
interesting and practicable section in this Chapter is Sec-
tion 269 of the new Code, which takes the place of old
Section 5526, and is in the following words:

"Sec. 269. Whoever holds, arrests, returns, or causes to be held,
arrested, or returned, or in any manner aids in the arrest or return
of any person to a condition of peonage, shall be fined not more than
five thousand dollars, or imprisoned not more than five years, or
both."

Judge Newman, in United States vs. Eberhart, 127 Fed-
eral, 252, held that this statute had no application to any
State or Territory7 except the Territory of New Mexico.
By implication, this was overruled by United States vs.
McClellan, in 127 Federal, 971, by Judge Speer, and was
directly overruled by the Supreme Court of the United

Slave Trade and Peonage. 521

States in Clyatt vs. United States, 197 U. S., 207, 49 Law
Ed., 726; the Supreme Court saying, in substance, that
the prohibition against peonage in any State or Territory
of the United States, contained in Sections 1990 and 5526
of the old Code, was authorized by the provisions of the
United States Constitution, the Thirteenth Amendment
forbidding slavery or involuntary servitude within the
United States, or any place subject to their jurisdiction,
and granting to Congress the power to enforce the pro-
hibition by appropriate legislation.

The statute, it will be noted, comprehends several dif-
ferent forms of peonage, to wit, holding, arresting, re-
turning, or causing to be held, arrested or returned. In
the Clyatt case, the Supreme Court reversed the judg-
ment of conviction, because there was no evidence that
the peons had been previously held in peonage, and the
indictment charged that there was a return to peonage.
Of course, if the indictment had charged holding in peon-
age, without returning to peonage, evidence would doubt-
less have been sufficient, and the case would have been
affirmed. The Supreme Court in the Clyatt case, says:

"That which is contemplated by the statute is compulsory service,
to secure the payment of a debt, Is this legislation within the power
of Congress? It may be conceded, as a general proposition, that the
ordinary relations of individual to individual are subject to the con-
trol of the States, and are not entrusted to the general Government,
but the Thirteenth Amendment, adopted as an outcome of the Civil
War, reads.

" 'Sec. 1. Neither slavery nor involuntary servitude, except as a
punishment for crime, whereof the party shall have been duly con-
victed, shall exist within the United States, or in any place subject
to their jurisdiction.

" 'Sec. 2. Congress shall have the power to enforce this Article by
appropriate legislation.'

This Amendment denounces a status or condition, irrespective of
the manner or authority by which it is created. The prohibitions of
the Fourteenth and Fifteenth Amendments are largely upon the acts
of the States; but the Thirteenth Amendment names no party or
authority, but simply forbids slavery and involuntary servitude, grants
to Congress the power to enforce this prohibition by appropriate legis-
lation."

In the peonage cases, 123 Federal, 671, District Judge
Jones defined "the condition of peonage" to be to hold or

522 Federal Criminal Law Procedure.

return a person to enforced servitude, wherein the servi-
tor is restrained of his liberty, and compelled to labor in
liquidation of some debt or obligation, either real or pre-
tended, against his will.

In the peonage cases just cited, and in the peonage
cases by Judge Trieber, 136 Federal, 707 ; it was held, in
substance, that it was entirely immaterial that the con-
tract of employment was voluntarily made by the laborer;
and it was entirely immaterial whether it was made for
the present or pre-existing consideration. In other words,
when the person desires to abandon the service, from that
moment on the holding of such a person is the holding of
him within the meaning of the statute, to a condition of
peonage. So, likewise, District Judge Jones held that to
falsely pretend another that he was accused of crime, and
to pretend to prevent his conviction if he will pay a sum
of monev, etc. all come within the statute.

In in re peonage charge, 138 Federal, 636, Section, and
United States vs. Cole, 153 Federal, 801, peonage was de-
fined to be the status or condition of compulsory service,
in the payment of an alleged indebtedness by the peon
to his master. The same definition is practically adopted
in United States vs. McClellan, 127 Federal, 971.

§ 296a. Involuntary Servitude, Etc., Meaning. — The
words "involuntary servitude" have a larger meaning
than slavery and the Thirteenth Amendment prohibited
all control by coercion of the personal service of one man
for the benefit of another. A state statute which was
passed ostensibly to punish fraud will not be maintained
as constitutional if its natural and inevitable purpose is
to punish for crime for failing to perform contracts of
labor, thus compelling such performance. A constitu-
tional prohibition cannot be transgressed indirectly by
creating a statutory presumption any more than by direct
enactment, and a state cannot compel involuntary servi-
tude in carrying out. contracts of personal service by
creating a presumption that the person committing the
breach is guilty of intent to defraud merely because he
fails to perform the contract. Bailey vs. State of Ala-
bama, 219 U. S. 219.

Peonage exists when convicted person are compelled

Slave Teade and Peonage. 523

to labor out fines resulting from civil contracts. U. S. vs.
Reynolds, U. S. Supreme Court, October Term, 1914. One
cannot compel a laborer against his will to return to him
and worked out a debt owing by such laborer. Harlan
vs. U. S., 184 Federal, 702, Same case, 214 U. S., 519;
same case Harlan vs. McGourin, 218 U. S., 442.

Judge Toulmin in U. S. vs. Broughton, 213 Federal, 345,
held that an indictment which charged in substance that
the defendant had become surety for a convict against
whom a fine and costs had been assessed and took said
convict to labor for him at $6 per month, and that the
defendant threatened the convict that if he, refused to
work out the debt, he would have him arrested and put
in jail, and that the convict did not continue to work for
the defendant under his own free will, did not state an
offense.

Sec. 296 b. Additional Decisions Under Peonage Stat-
ute.

By a divided court in Taylor vs. U. S., 244 F. 321, the
Court of Appeals for the fourth circuit held that the act
of a master and magistrate in conspiring to put the mas-
ter's servant in a condition of involuntary servitude
through a prosecution for breach of his contract of em-
ployment, in order to require him to perforin his con-
tract to work one year for the master, was insufficient
to warrant a conviction.

Circuit Judge Woods' dissenting opinion to such hold-
ing is a very strong presentation of the soul of the stat-
ute and really may be the law.

In Bernal vs. U. S., 241 F. 339, it was held that a hold-
ing may be by threats and fear.

§ 297. Obstructing Execution of Above. — Section 5527
of the old Code becomes Section 270 of the new Code, as
follows :

"Sec. 270. Whoever obstructs, or attempts to obstruct, or in any
way interferes with or prevents the enforcement of the section last
preceding, shall be liable to the penalties therein prescribed."

§ 298. Bringing Kidnapped Persons Into the United
States. — By broadening the Act of June 23, 1874, 17
Statute at Large, 251, 1 Supplement, 46, to extend so as

524 Federal Criminal Law Procedure.

to apply to any place subject to the jurisdiction of the
United States such Act becomes Section 271 of the new
Code, as follows:

"Sec. 271. Whoever shall knowingly and wilfully bring into the
United States or any place subject to the jurisdiction thereof, any
person inveigled or forcibly kidnapped in any other country, with in-
tent to hold such person so inveigled or kidnapped in confinement or
to any involuntary servitude; or whoever shall knowingly and wil-
fully sell, or cause to be sold, into any condition of involuntary servi-
tude, any other person for any term whatever; or whoever shall know-
ingly and wilfully hold to involuntary servitude any person so brought
or sold, shall be fined not more than five thousand dollars and im-
prisoned not more than five years."

CHAPTER XIV.

OFFENSES WITHIN THE ADMIRALTY MARITIME AND TERRI-
TORIAL JURISDICTION OF THE UNITED STATES.

Note. — The first numbers indicate the old Sections; then fellows a
dash, and after the dash the numbers indicate the Sections in the new
Code.

§ 299. Generally, Federal Territory.

300. Places Defined: New Code, 272.

301. Murder: 5339—273.

302. Murder Verdict: 29 Stat. L., 487.

303. Manslaughter: 5341—274.

304. Punishment for Murder and Manslaughter: 5339 and 5343 — 275.

305. Assault with Intent to Commit Murder, Rape, Robbery, Etc.:

5346—276.

306. Attempt to Commit Murder or Manslaughter: 5342 — 277.

307. Rape: 5343—278.

308. Having Carnal Knowledge of Female Under Sixteen: New

Code, 279.

309. Seduction of Female Passenger on Vessel: 5349 — 280.

310. Payment of Fine to Female Seduced; Evidence Required;

Limitations on Indictment: 5350 and 5351 — 281.

311. Punishment for Loss of Life by Misconduct of Officers, Owners,

Charterers, Etc., of Vessels: 5344—282.

312. Maiming: 5348—283.

313. Robbery: 5370—284.

3 j 4. Arson of Dwelling House: 5385—285.

315. Arson of Arsenal, Etc.; Other Buildings, Etc.: 5386—286.

316. Larceny: 5356—287.

317 Receiving, Etc., Stolen Goods: 5357—288.

318. Laws of State Adopted for Punishing Wrongful Acts, Etc.:

5391—289.
318a. Libel not Federal Offense.

§ 299. The new Code, in Section 272, sets forth cer-
tain specific national territory, within and upon which
the commission of the acts mentioned in this chapter
become exclusive Federal offenses. The offenses upon
which Congress has legislated under the head of admi-
ralty, maritime, and territorial jurisdiction of the Federal
Government are murder, manslaughter, intent to mur-
der, rape, robbery, certain carnal knowledge of the fe-
male, loss of life by misconduct of the officers of a vessel,

(525)

526 Federal Criminal' Law Procedure.

maiming, arson, larceny, receiving stolen goods, and a
general statute, which creates a Federal offense of every
State offense not herein mentioned, when the same is
committed within the limits spoken or.

§ 300. The Places Defined.— Section 272 of the new
Code, which makes unnecessary a repetition of the place
in defining each separate offense, reads as follows:

"Sec. 272. The crimes and offenses defined in this chapter shall
be punished as herein prescribed:

"First. When committed upon the high seas, or on any other waters
within the admiralty and maritime jurisdiction of the United States
and out of the jurisdiction of any particular State, or when committed
within the admiralty and maritime jurisdiction of the United States
and out of the jurisdiction of any particular State on board any
vessel belonging in whole or in part to the United States or any citi-
zen thereof, or to any corporation created by or under the laws of the
United States, or of any State, Territory, or District thereof.

"Second. When committed upon any vessel registered, licensed,
or enrolled under the laws of the United States, and being on a voy-
age upon the waters of any of the Great Lakes, namely: Lake Supe-
rior, Lake Michigan, Lake Huron, Lake Saint Clair, Lake Erie, Lake
Ontario, or any of the waters connecting any of said lakes, or upon
the River Saint Lawrence where the same constitutes the Internation-
al boundary line.

"Third. When committed within or on any lands reserved or ac-
quired for the exclusive use of the United States, and under the exclu-
sive jurisdiction thereof, or any place purchased or otherwise acquired
by the United States by consent of the legislature of the State in
which the same shall be, for the erection of a fort, magazine, arsenal,
dock-yard, or other needful building.

"Fourth. On any island, rock, or key, containing deposits of guano,
which may, at the discretion of the President, be considered as ap-
pertaining to the United States."

While this section is new, some of its parts are to be
found in old Statute 5339, old Statute 5570, and Article
I., Section 8, of the Constitution. The first division of
the section, it will be noted, gives the jurisdiction to of-
fenses upon certain waters. The second division gives
jurisdiction to offenses upon vessels when on certain
waters. The third division gives jurisdiction over of-
fenses that are committed upon lands over which the
Government has acquired exclusive jurisdiction, by pur-
chase or otherwise; but it must be understood that this

Offense? Within Jueisdiction op United States. 527

division does not mean that there is any jurisdiction in
the Federal Government, unless there be cession thereof
under the Federal and State laws. Thus, the renting of a
building 'in which the Federal Post-office is conducted
would give no jurisdiction to the Federal Government for
an assault committed within that building by one private
citizen upon another private citizen. The jurisdiction of
the Government to punish one who assaulted the post-
master in the performance of his official duties, rests
upon an entirely different statute, and is not grounded
upon the section now being noticed. District Judge
Whitson, in United States vs. Tully, 140 Federal, 899,
held in substance, that the jurisdiction of a Federal Court
to try a person for a criminal offense on the ground that
it was committed within a fort or military reservation,
such fort or reservation must have been established by
law, as contemplated by Article I., Section 8, of the
Constitution, either by purchase, with the consent of the
Legislature of the State, or by reservation of public lands
therefor by compact with the State at the time of its
admission, and exclusive jurisdiction over the same must
have been reserved to the United States, either by ex-
press words or necessary implication. Judge Maxey, in
111 Federal, 630, United States vs. Lewis, held in sub-
stance, that whether a homicide committed within the
boundaries of a State constitutes an offense against the
laws of the United States, of which a Federal Court has
jurisdiction, depends on two questions: first, whether
there has been such a cession by the State to the United
States of the territory upon which the act alleged to
constitute the crime was committed, as to render such
territory a place or district or country under the exclusive
jurisdiction of the United States, which is a question of
law for the Court; and, second, if such cession was made,
whether the act was committed within the territory so
ceded, which is a question of fact to be submitted to the
jury. In United States vs. Carter, 84 Federal, 622, the
Court held that a defendant was properly indicted in the
Federal jurisdiction for a murder committed on board
the United States battle-ship "Indiana," then moored
at Cob Dock, being within territory which had not been

528 Federal Criminal Law Procedure.

purchased by the United States, but over which exclusive
jurisdiction had been ceded to the United States by the
New York Legislature. In United States vs. Hewecker,
79 Federal, page 59, the Court held that where a seaman
on an American schooner was indicted for having shot,
in the harbor of Havana, one Miller, who died therefrom
in the hospital three days afterwards, at Havana, on
January 21, 1892, and the indictment was not found un-
til March 10, 1896; the defendant, in the meantime, hav-
ing been imprisoned in Havana, upon conviction for an
assault, and on the expiration of his sentence delivered
to the United States authorities, that the defendant was
not a fugitive from justice, under Section 1045, so as to
be excepted from the exemption of indictment after three
years, and that the death, having taken place on land
within a foreign jurisdiction, the case was not one of
wilful murder at Common Law, under the Federal au-
thorities; and that the United States statute, Section
5339, though making the offense punishable with death,
neither declares it to be murder, nor does it limit that
offense to all cases within a year and a day, which at
Common Law was an essential element of the offense
of murder; and, therefore, that the case was not one
of wilful murder, and the indictment was barred by the
three-year limitation.

A cession by a State to the United States of "exclusive
jurisdiction" over certain land, providing that the State
shall retain concurrent jurisdiction with the United
States, so far that the process, civil or criminal, issued
under the authority of the State may be executed by the
State officers upon any person amenable to the same,
within the limits of the land so ceded, confers on the
United States exclusive jurisdiction within the meaning
of Revised Statutes 5339, United States vs. Meagher, 37
Federal, 875. Of course, the burden is on the Govern-
ment to show that the crime was committed on land
which was under the exclusive jurisdiction of the United
States.

In Cook vs. United States, 138 U. S., page 185, 34 Law
Edition, 906, it was held that a publi? land strip lying
between Texas and New Mexico and Colorado and Kan-

Offenses Within Jurisdiction of United States. 529

sas, over which jurisdiction had been vested in the Unit-
ed States after the commission of the offense of murder
thereon, was properly within the control of the Federal
Courts, and the offense punishable therein.

The fourth division relates to offenses upon certain is-
lands, rocks, or keys, which contain deposits of guano,
the beginning of which recognition was old Statutes 5570,
and is the extending of sovereignty by the political pow-
er of the Government. In other words, by the law of
nations, dominion of new territory may be acquired by
discovery and occupation, as well as by cession or con-
quest.

In the case of United States vs. Rogers, 150 U. S., 249,
37 Law Ed., page 1071, the Supreme Court held that the
term "high seas," as used in old Section 5346, is ap-
plicable to the open unenclosed waters of the Great Lakes,
between which the Detroit River is a connecting stream;
and that Court, in the same case, also held that a vessel
is deemed part of the territory of the country to which
she belongs, and that the Courts of the United States have
jurisdiction, under United States Revised Statutes 5346,
to try a person for assault with a dangerous weapon,
committed on a vessel belonging to a citizen of the Unit-
ed States, when such vessel is in the Detroit River, out
of the jurisdiction of any particular State, and within
the territorial limits of the Dominion of Canada. This
decision seems to overrule the case of United States vs.
Rogers, in the 46 Federal, page 1, and the case of ex
parte Byers, 32 Federal, 404, where the Court denied a
like jurisdiction.

It is determined, in United States vs. Peterson, 64 Fed-
eral, 145, that the District Court of the Eastern District
of Wisconsin has no jurisdiction of an indictment for
an assault committed on a vessel on Lake Huron, within
the boundary of the jurisdiction of the Eastern District
of Michigan. In other words, the indictment should have
been prosecuted in Michigan, instead of Wisconsin, and
Judge Seaman reviews the Byers case and the Rogers
case, cited supra.

In Jones vs. United States, 137 U. S., 202, 34 Law Ed.,
691, the Supreme Court maintains the constitutionality of

530 Federal Criminal Law Procedure.

jurisdiction by discovery, and incidentally Section 5570
of the old Code, and, therefore, the fourth division of the
present section. The Court held in that case, that,

"All courts of justice are bound to take judicial notice of territoral
extent of the jurisdiction exercised by the Government whose laws
they administer, or of its recognition or denial of the sovereignty of
a foreign power, as appearing from the public acts of the legislature
and executive, although those acts are not formally put in evidence,
nor in accord with the pleadings."

And for this purpose of judicially knowing, the judges
may refresh their memory and inform their conscience
from such sources as they may deem most trustworthy.

Under the authority of the United States vs. Battle, 154
Federal, 540, which was an indictment for murder, al-
leged to have been committed on a plot of ground in
the city of Macon, Georgia, which had been conveyed to
the United States for the erection of a post-office and
Federal Court building, over which territory the State
had surrendered jurisdiction, reserving the right to serve
process and apprehend offenders there, that it is not nec-
essary in the indictment to plead the act of the General
Assembly or Legislature, because that is the general law,
which it is presumed not only the Court, but the defend-
ant, knew; nor is it necessary to plead the title of the
Government in the indictment. The allegation that the
crime was maliciously, unlawfully, and feloniously done,
with the other ingredients of the offense, is sufficient.
This case was affirmed in Battle vs. United States, 209
U. S., page 36, 52 Law Ed., page 671.

§ 301. Murder.— The old Statute 5339 gave no defini-
tion of the crime of murder, and thus the Courts were
driven to the Common Law for such definition. New
Section 273, however, defines murder, and somewhat en-
larges the Common Law definition, and appropriates
many of the terms of the statutes of a large majority of
the various states, and such section reads as follows:

"Sec. 273. Murder is the unlawful killing of a human being with
malice aforethought. Every murder perpetrated by poison, lying in
wait, or any other kind of wilful, deliberate, malicious, and premedi-
tated killing; or committed in the perpetartion of, or attempt to

Offenses Within Jurisdiction of United States. 531

perpetrate, any arson, rape, burglary, or robbery; or perpetrated from
a premeditated design unlawfully and maliciously to effect the death
of any human being other than him who is killed, is murder in the
first degree. Any other murder is murder in the second degree."

The Common Law definition of murder was,

"Murder is where a person of sound memory and discretion, unlaw-
fully and feloniously kills any human being in the peace of the sover-
eign, with malice propense, or aforethought, express or implied."

Mr. Bishop, in Volume II., of his New Criminal Law,
treats of this and other definitions of murder, setting
forth the definitions used by Lord Coke, as follows:

"Murder is when a man of sound memory and of the age of discre-
tion, unlawfully killeth, within any county of the realm, any reason-
able creature in rerum natura under the King's peace, with malice
aforethought, either expressed by the party, or implied by law, so as
the party wounded or hurt, etc., die of the wound or hurt, etc., with-
in a year and a day after the same,"

and Lord Mansfield, namely:

"Murder is where a man of sound sense, unlawfully killeth another
of malice aforethought, either express or implied."

and continues by saying that a complete definition is im-
possible, but that it must include an understanding of the
term "malice aforethought," which term means an in-
tent to take life without excuse.

Judge Maxey, in United States vs. Lewis, 111 Federal,
630, said:

"Malice, when attempted to be defined, has been necessarily given
a more comprehensive meaning than enmity or illwill or revenge,
and has been extended so as to include all those states of mind under
which the killing of a person takes place without any cause which
will in law justify or excuse or extenuate the homicide. McCoy vs.
State, 25 Texas, 39. Malice, as applied to the offense of murder, need
not denote spite or malevolence, hatred or illwill, to the person killed,
nor that the slayer killed his victim in cold blood, as with settled
design and premeditation. Such a killing would, it is true, be mur-
der; but malice, as essential to the crime of murder, has a more ex-
tended meaning. A killing flowing from an evil design in general
may be of malice, and constitute murder; as, a killing resulting

532 Fedeeal Criminal Law Procedure.

from the dictates of a wicked, depraved, and malignant spirit — a
heart regardless of social duty and fatally bent upon mischief — may
be of malice, necessarily implied by law from fact of the killing, with-
out lawful excuse, and sufficient to constitute the crime of murder,
although the person killing may have had no spite or illwill against
the deceased. Malice, as thus described, is either express or implied.
Express malice is where one with a sedate and deliberate mind, and
formed design, doth kill another, which formed design is evidenceo
by external circumstances, discovering that inward intention; as,
lying in wait, antecedent menances, former grudges, and concerted
schemes to do bodily harm. It rarely, if ever, occurs that express
malice is proved upon the trial of a case. The existence or non-
existence of malice is a matter to be determined by tne jury, from a
consideration of all the facts in evidence. The proof of homicide, as
necessarily involving malice, must show the facts under which the
killing was effected, and from the whole facts and circumstances
surrounding the killing, the jury infers malice or its absence. Malice,
in connection with the crime of killing, is but another name for a
certain condition of a man's heart or mind; and as no one can look
into the heart or mind of another, the only way to decide upon its
condition at the time of the killing, is to infer it from the surround-
ing facts, and that inference is one of fact for the jury. 'Jordan
vs. State, 10 Texas, 492; 3 Russell on Crime, sixth edition, pages
1 and 2; Stevenson vs. United States, 162 U. S., 320, 40 Law Ed., 983;
Wallace vs. United States, 162 U. S., 476, 40 Law Ed., 1043.' The
malice which distinguishes the crime of murder must be aforethought.
It implies premeditation — a prior intent to do the act. It may have
existed but for a moment — an inappreciably brief period of time,
or longer. No limit has been, or can be, fixed as to its duration. If
it in fact exist for any period, however brief, the killing would be
murder; but in malice so wanting, the homicide could not be of a
higher grade than manslaughter."

In Battle vs. United States, 209 U. S., 36, 52 Law Ed.,
670, the Supreme Court affirmed the refusal of the trial
Court to give requested instructions upon the law of jus-
tifiable homicide and involuntary homicide, when, ac-
cording to the testimony of the accused, 'the death was
due to an accident, and according to all the other evi-
dence, the death was intentional and unjustified.

In considering the cases that are hereafter cited, it will
be borne in mind that the original Federal Statute, under
which the case arose, contained no provision for murder
in the second degee; in other words, the two degrees of
homicide were murder and manslaughter.

Offenses Within Jurisdiction of United States. 533

By the Common Law, both time and place were re-
quired to be alleged. It is necessary that it should ap-
pear that the death transpired within a year and a day
after the stroke, and the place of the death equally with
that of the stroke, had to be stated to show jurisdiction
in the Court. The controlling element which distinguishes
the guilt of the assailant from a common assault was the
death, within a year and a day, and also within the same
jurisdiction. Ball vs. United States, 140 U. S., 136, 35
Law Ed., 384. So far as the present statute is concerned,
there are no differences upon this point between it and
the old statute, upon which the Ball decision was ren-
dered and the Common Law rules with reference to these
matters must, therefore, be observed under the new stat-
ute, in both pleading and proving the offense. In the
case of United States vs. Guiteau, reported in 1 Mackey,
498, the Supreme Court of the District of Columbia af-
firmed a conviction, even though the shot was fired in
the District of Columbia and President Garfield died in
Maryland, such affirmance being based upon the absorp-
tion of the latest English statute by Maryland, in 1801,
which, to correct the original technicality of the Com-
mon Law, permitted prosecution in either the realm of the
stroke or the realm of the death. Section 731 of the Fed-
eral statutes, which allows the prosecution of an offense
against the United States in either the county in which
it was begun or in the county in which it was completed,
was held by the Supreme Court in the Ball case, even if
applicable to the crime of murder, not to apply if the
stroke were given in one district and the death ensued
in some other country than the United States. In St.
Clair vs. United States, 154 U. S., 134, 38 Law Ed.? 936,
the Court sustained a description in an indictment with
reference to the locality of the offense, when it showed
that it was committed on board of an American vessel
on the high seas, within the jurisdiction of the Court and
the admiralty and maritime jurisdiction of the United
States, and not within the jurisdiction of any particular
State.

Sec. 301 a. Murder — Homicide — Defenses.

One attempting robbery cannot claim self defense.
Turner vs. U. S., 272 F. 112.

534 Federal Criminal Law Procedure.

For self defense and provocation see Huber vs. U. S.,
259 F. 766.

For a case bearing upon homicide by the careless driv-
ing of an automobile see Sinclair vs. U. S., 265 F. 991.

§ 302. Verdict. — Under the Federal practice, the
Court may sentence the defendant to a manslaughter
punishment and enter a judgment for manslaughter,
upon a verdict of guilty of murder, because the convic-
tion of the higher offense includes the lower. United
States vs. Linnier, 125 Federal, 83.

The 29 Statute at Large, 487, Act of January 25, 1897,
provides that in all cases where the accused is found
guilty of murder or of rape, the jury may qualify their
verdict by adding thereto, "without capital punishment;"
and whenever the jury shall return a verdict qualified
as aforesaid, the person convicted shall be sentenced to
imprisonment at hard labor for life. This Act was re-
viewed and applied as being permissible in the case of
Winston vs. United States, 172 Federal, 304, 43 Law
Ed., 456; and this though the statute provides a punish-
ment of death, Section 275 of the new Code.

§ 303. Manslaughter. — The old manslaughter statute,
Section 5341, is so changed by new Section 274 as to
include the practical elements of the Common Law
definition of manslaughter and the statutes of many of
the States, and reads as follows:

"Sec. 274. Manslaughter is the unlawful killing of a human being
without malice. It is of two kinds:

"First. Voluntary — upon a sudden quarrel or heat of passion.

"Second. Involuntary — in the commission of an unlawful act not
amounting to a felony, or in the commission of a lawful act which
might produce death, in an unlawful manner, or without due caution
and circumspection. "

At Common Law, voluntary manslaughter was the un-
lawful and intentional killing of another without malice
on sudden quarrel or in heat of passion. Bishop, in his
New Criminal Law, second volume, page 425, cites sev-
eral definitions, and notes Hawkins' definition, which
was this: homicide against the life of another, amount-
ing to felony, is either with or without malice. That

Offenses Within Jurisdiction of United Staies. 535

which is without malice is called manslaughter, or some-
times chance-medley; by which we understand such kill-
ing as happens either on a sudden quarrel or in the com-
mission of an unlawful act, without any deliberate in-
tention of committing any mischief at all. Mr. Bishop
proposes a new definition, as follows:

"Manslaughter is any such dangerous act or omission, feloniously
done or suffered contrary to one's legal duty, as results in the death
of a human being, within a year and a day."

But whatever may have been the original Common Law
definition, the statute now under discussion fixes and de-
fines just what shall be manslaughter in the Federal
jurisdiction. An interesting expression of the Supreme
Court, in Anderson vs. United States, 170 U. S., 510, 42
Law Ed., 1126, will be of value here:

"The law, in recognition of the frailty of human nature, regards
a homicide committed under the influence of sudden passion or in
hot blood, produced by adequate cause, and before a reasonable time
has elasped for the blood to cool, as an offense of a less heinous char-
acter than murder; but if there be sufficient time for the passion to
subside, and shaken reason to resume her sway, no such distinction
can be entertained; and if the circumstances showed a killing with
deliberate mind and formed design, with comprehension of the act
and determination to perform it, the elements of self-defense being
wanting, the act is murder. Nor is the presumption of malice nega-
tived by previous provocation, having no casual connection with the
murderous act, or separated from it by such an interval of time as
gives reasonable opportunity for the excess of fury to moderate."

In other words, in manslaughter, malice is presumed to
be absent or wanting, and the act is imputed to the in-
firmity or human nature, and the punishment is, there-
fore, proportionately lenient.

The Circuit Court of Appeals for the Fifth Circuit, in
the case of Roberts vs. United States, 126 Federal, 897,
speaking through Chief Justice Pardee, affirmed a man-
slaughter charge by District Judge Meek, and his defi-
nition thereof, which was as follows:

"In the definition of manslaughter contained in the statute the
killing must be done unlawfully and wilfully. The term 'unlawfully,'
as here used, means without legal excuse. The term 'wilfully' here

536 Federal Criminal Law Procedure.

means done wrongfully, with evil intent. It means any act which a
person of reasonable knowledge and ability must know to be contrary
to duty."

The statute, it will be noted, rehabilitates voluntary
and involuntary manslaughter, being the same divisions
originally recognized by the Common Law.

§ 304. Punishment for Murder and Manslaughter. —
Section 275 of the new Code, which displaces old Sections
5339 and 5343, is as follows:

"Sec. 275. Every person guilty of murder in the first degree shall
suffer death. Every person guilty of murder in the second degree
shall be imprisoned not less than ten years and may be imprisoned
for life. Every person guilty of voluntary manslaughter shall be
imprisoned not more than ten years. Every person guilty of in-
voluntary manslaughter shall be imprisoned not more than three
years, or fined not exceeding one thousand dollars, or both."

§ 305. Assault with Intent to Commit Murder, Rape,
Robbery, Etc. — A part of the provisions of old Statute
5346 are included in new Section 276, which is very
broad, and which is in the following words:

"Sec. 276. Whoever shall assault another with intent to commit
murder, or rape, shall be imprisoned not more than twenty years.
Whoever, shall assault another with intent to commit any felony,
except murer, or rape, shall be fined not more than three thousand
dollars, or imprisoned not more than ten years, or both. Whoever,
with intent to do bodily harm, and without just cause or excuse, shall
assault another with a dangerous weapon, instrument, or other thing,
shall be fined not more than one thousand dollars, or imprisoned not
more than five years, or both. Whoever shall unlawfully strike, beat,
or wound another, shall be fined not more than five hundred dollars,
or imprisoned not more than six months, or both. Whoever shall un-
lawfully assault another, shall be fined not more than three hundred
dollars, or imprisoned not more than three months, or both."

In United States vs. Barnaby, 51 Federal, 20, the de-
fendant was charged in the indictment with an assault
with intent to commit murder, and the Court held that
the indictment was insufficient, where it merely charged
that the defendant made an assault with a knife upon a
person named, with intent him to kill, wilfully and fe-
loniously, and of his malice aforethought, without dis-

Offenses Within Jurisdiction of United States. 537

closing the character of the knife, or averring that lie
struck him with it, or inflicted any wound having a ten-
deny to produce death.

§ 306. Attempt to Commit Murder or Manslaughter.
— Section 5342 of the old statutes is replaced by Section
277 of the new Code, in the following words:

"Sec. 277. Whoever shall attempt to commit murder, or manslaugh-
ter, except as provided in the preceding section, shall be finded not
more than one thousand dollars and imprisoned not more than three
years."

§ 307. Rape. — Section 5343 of the old statutes be-
comes Section 278 of the new Code, in the following
words :

"Sec. 278. Whoever shall commit the crime of rape shall suffer
death."

Under the Common Law, rape is the having of carnal
knowledge, by a man of a woman, forcibly and against
her will. A corrected definition, given by Mr. Bishop, is,

"Rape is the having of unlawful carnal knowledge, by a man of a
woman, forcibly, where she does not consent."

The difference between the use of the words, "where she
does not consent" and the words "against her will," is
treated by Lord Campbell in the following manner:

"The question is, What is the real definition of rape — whether it
is the ravishing of a woman against her will, or withohut her consent?
If the former is the correct definition, the crime is not, in this case,
proved; if the latter, it is proved. Camplin's case seems to me really
to settle what the proper definition is, and the decision in that case
rests upon the authority of an Act of Parliament. The statute of
Westminster 2, C. 34, defines the crime to be where a man do ravish
a woman, married, maid, or other, where she did not consent, neither
before nor after. We are bound by that definition, and it was adopted
in Camplin's case, acted upon in Ryan's case, and subsequently in a
case before my Brother Willes. It would be monstrous to say that if
a drunken woman, returning from market, lay down and fall asleep
by the readside, and a man, by force, had connection with her whilst
she was in a state of insensibility, and incapable of giving consent,
he woul^ uot be g-uilty of rape."

538 Federal, Criminal Law Procedure.

The concluding illustration of the great Chief Justice
was held not to be rape, in P. vs. Quin, 50 Barb., 128,
but was held to be rape in C. vs. Burk, 105 Mass., 376.

§ 308. Having Carnal Knowledge of Female Under
Sixteen. — Section 279 of the new Code reads as follows:

"Sec. 279. Whoever shall carnally and unlawfully know any female
under the age of sixteen years, or shall be accessory to such carnal
and unlawful knowledge before the fact, shall, for a first offense,
be imprisoned not more than fifteen years, and for a subsequent offense
be imprisoned not more than thirty years."

Sec. 308 a. Statement by Assaulted Female.

It was held in Callahan vs. U. S., 240 F. 683, that a
statement made by the girl to an acquaintance after the
fact was not admissible.

§ 309. Seduction of Female Passenger on Vessel. —
The substance of Section 5349 becomes new Section 280,
which reads as follows:

"Sec. 280. Every master, officer, seaman, or other person employed
on board of any American vessel who, during the voyage, under prom-
ise of marriage, or by threats, or the exercise of authority, or solicita-
tion, or the making of gifts or presents, seduces and has illicit con-
nection with any female passenger, shall be fined not more than one
thousand dollars, or imprisoned not more than one year, or both;
but subsequent intermarriage of the parties may be pleaded in bar of
conviction."

§ 310. Payment of Fine to Female Seduced; Evidence
Required; Limitation on Indictment. — Old Sections 5350
and 5351 become new Section 281 of the new Code, as
follows:

"Sec. 281. When a person is convicted of a violation of the section
last preceding, the court may, in its discretion, direct that the amount
of the fine, when paid, be paid for the use of the female seduced, or
her child, if she have any; but no conviction shall be had on the
testimony of the female seduced without other evidence, nor unless the
indictment is found within one year after the arrival of the vessel on
which the offense was committed at the port of its destination."

§ 311. Punishment for Loss of Life by Misconduct of
Officers, Owners, Charterers, Etc., of Vessels. — Old Sec-

Offenses Within Jurisdiction of United States. 539

tion 5344 is greatly broadened by new Section 282, which
is as follows:

"Sec. 282. Every captain, engineer, pilot, or other person employed
on any steamboat or vessel, by whose misconduct, negligence, or in-
attention to his duties on such vessel the life of any person is de-
stroyed, and every owner, charterer, inspector, or other public officer,
through whose fraud, neglect, connivance, misconduct, or violation
of law the life of any person is destroyed, shall be fined not more
than ten thousand dollars, or imprisoned not more than cen years,
or both. Provided, That when the owner or charterer of any steam-
boat or vessel shall be a corporation, any executive officer of such
corporation, for the time being actually charged with the control
and management of the operation, equipment, or navigation of such
steamboat or vessel, who has knowingly and wilfully caused or allowed
such fraud, neglect, connivance, misconduct, or violation of law, by
which the life of any person is destroyed, shall be fined not more
than ten thousand dollars, or imprisoned not more than ten years, or
both."

The term "vessel" was construed to include every de-
scription of water-craft, or other artificial contrivance
used or capable of being used as a means of transporta-
tion on water, in the case of United States vs. Holmes,
104 Federal, 884. In that same case, it was also held
that the offense named in the statute was complete when
the misconduct, negligence, or inattention in the naviga-
tion of a vessel by one of the persons named resulted in
the loss of human life, and that the indictment there-
under need not charge a criminal intent.

In United States vs. Van Schaick, 134 Federal, 592,
which was affirmed in Van Schaick vs. United States, 159
Federal, 847, it was held that even though the statute
could not reach a corporation owner of a vessel, yet such
fact did not affect the right of the Government to prose-
cute individuals under said section, who aid and abet the
corporation in the commission of the crime; and the
owner of a steamship who fails to comply with the stat-
ute requiring it to be equipped with life preservers and
proper fire appliances, either by supplying none, or by
supplying those that are unsuitable, inefficient, and use-
less, is guilty of a violation of this section, provided such
violation results in the death of a person.

540 Federal Criminal Law Procedure.

§ 312. Maiming. — Old Statutes 5348 becomes the sub-
stances of Section 283 of the new Code, as follows:

"Sec. 283. Whoever, with intent to maim or disfigure, shall cut,
bite, or slit, the nose, ear, or lip, or cut out or disable the tongue,
or put out or destroy an eye, or cut off or disable a limb or any
member of another person; or whoever, with like intent, shall throw
or pour upon another person, any scalding hot water, vitriol, or other
corrosive acid, or caustic substance whatever, shall be fined not more
than one thousand dollars, or imprisoned not more than seven years,
or both."

§ 313. Robbery. — Section 5370 of the old statutes be-
comes Section 284 in the new Code, in the following
words:

"Sec. 284. Whoever, by force and violence, or by putting in fear,
shall feloniously take from the person or presence of another anything
of value, shall be imprisoned not more than fifteen years."

§ 314. Arson of Dwelling House. — Section 285 of the
new Code adds the new element of destruction by ex-
plosives, and reduces the maximum penalty, and is sub-
stituted for Section 5385 of the old statutes, and is in
the following words:

"Sec. 285. Whoever shall wilfully and maliciously set fire to,
burn, or attempt to burn, or by means of a dangerous explosive destroy
or attempt to destroy, any dwelling house, or any store, barn, stable,
or other building, parcel of a dwellng house, shall be imprisoned not
more than twenty years."

§ 315. Arson of Arsenal, Etc.; Other Buildings, Etc.
— Section 286 of the new Code includes many things not
enumerated in old Statute 5386, and is in the following-
words :

"Sec. 286. Whoever shall maliciously set fire to, burn, or attempt
to burn, or by any means destroy or injure, or attempt to destroy or
injure, any arsenal, armory, magazine, rope-walk, ship-house, ware-
house, blockhouse, or barrack, or any store-house, barn, or stable, not
parcel of a dwelling house, or any other building not mentioned in
the section last preceding, or any vessel built, building, or undergoing
repair, or any light-house, or beacon, or any machinery, timber, cables,
rigging, or other materials or appliances for building, repairing,
or fitting out vessels, or any pile of wood, boards, or other lumber,
or any military, naval, or victualing stores, arms, or other munitions
of war, shall be fined not more than five thousand dollars and im-
prisoned not more than twenty years."

Offenses Within Jurisdiction of United States. 541

The technical quashing of an indictment in United
States vs. Cardish, 14 Federal, 640, growing out of the
necessity of the Common Law definition of the word "ar-
son" controlling in the Federal prosecution, would not
be possible under this new section, for the reason that the
destruction by fire, as enumerated in the new section, is
not limited to the technical meaning of the word "arson"
at Common Law.

§ 316. Larceny. — Section 287 of the new Code, which
takes the place of old Section 5356, is patterned after the
legislation of the various States which recognize two dif-
ferent punishments, to be graded by the value of the
articles stolen.

"Sec. 287. Whoever shall take and carry away, with intent to
steal or purloin, any personal property of another, shall be punished
as follows: If the property taken is of a value exceeding fifty dol-
lars, or is taken from the person of another, by a fine of not more
than ten thousand dollars, or imprisonment for not more than ten
years, or both; in all other cases, by a fine of not more than one
thousand dollars, or by imprisonment not more than one year, or
both. If the property stolen consists of any evidence of debt, or other
written instrument, the amount of money due thereon, or secured
to be paid thereby, and remaining unsatisfied, or which in any con-
tingency might be collected thereon, or the value of the property the
title to which is shown thereby, or the sum which might be recovered
in the absence thereof, shall be deemed to be the value of the prop-
erty stolen."

Sec. 316 a. Larceny — Decisions.

The indictment must charge the actual owner of the
property, Thompson vs. U. S., 256 F. 616.

For a definition of larceny, etc., see Nichamin vs. U.
S., 263 F. 880.

§ 317. Receiving, Etc., Stolen Goods. — Section 5357
of the old Code is broadened by new Section 288, so as to
include the receiving of money which has been embezzled,
and by authorizing the trial of the receiver of such money
before the trial of the principal offender; the section
reading as follows:

"Sec. 288. Whoever shall buy, receive, or conceal, any money,
goods, bank notes, or other thing which may be the subject of larceny,
which has been feloniously taken, stolen, or embezzled, from any other

542 Federal Criminal Law Procedure.

person, knowing the same to have been so taken, stolen, or embezzled,
shall be fined not more than one thousand dollars and imprisoned
not more than three years; and such person may be tried before or
after the conviction of the principal offender."

In Bise vs. United States, 144 Federal, 374, the Court
held that in a prosecution under old section, it was not
essential to allege in the indictment that the property was
received without the consent of the owner, or with intent
to deprive him of its use and benefit; the criminal intent
and evil purpose of the receiver being sufficiently alleged
where his act is characterized as unlawful and felonious.

§ 318. Laws of State Adopted for Punishing Wrong-
ful Acts, Etc. — Ee-written, broadened, and amplified, old
Section 5391 becomes new Section 289, in the following
words :

"Sec. 289. Whoever, within the territorial limits of any State,
organized Territory, or District, but within or upon any of the places
now existing, or hereafter reserved or acquired, described in section
two hundred and seventy-two of this act, shall do or omit the doing
of any act or thing which is not made penal by any law of Congress,
but which if committed or omitted within the jurisdiction of the State,
Territory, or District in which such place is situated, by the laws
thereof now in force would be penal, shall be deemed guilty of a like
offense and be subject to a like punishment; and every such State,
Territorial, or District law shall, for the purpose of this section,
continue in force, notwithstanding any subsequent repeal or amend-
ment thereof by any such State, Territory, or District."

This is one of the most useful Federal sections. Under
it, petty misdemeanors and other offenses not enumerated
in the Federal Code, U. S. vs. Barnaby, 51 Federal, page
20, the punishment of which, however, is essential, are
made in this comprehensive manner federal offenses. In
Franklin vs. United States, decided by the Supreme Court
on March 14, 1910, that Court-reaffirmed the case of
United States vs. Paul, 6 Peters, 141, over the objection
made to the constitutionality of the section under dis-
cussion, resting such objection upon the contention that
the statute would authorize State governments to change
penalties for Federal offenses, and said:

"In United States vs. Paul, 6 Peters, 141, coming here on certifi-
cate of division, it was held by this Court, speaking by Chief Justice

Offenses Within Jurisdiction of United States. 543

Marshall, that the effect of this Section (5391) was limited to the
laws of the several States in force at the time of its enactment, and
it followed by this Act, Congress adopted for the government of the
designated places under the exclusive jurisdiction and control of the
United States, the criminal laws then existing in the several States,
within which such places were not displaced by specific laws enacted
by Congress. Section 2 of the Act of July seventh, 1898, was to the
same effect, and, moreover, by express language, Congress adopted
such punishment as 'the laws of the State in which such place is
situated now provide for the like offense.' There is plainly no dele-
gation to the State of authority in any way to change the criminal
laws applicable to the places over which the United States has juris-
diction."

In in re Kelly, 71 Federal, 545, the Court held that a
cession to the general Government of certain lands tor a
soldiers' home, in the Act giving the consent of the State
to purchase such land, does not confer exclusive jurisdic-
tion, and that upon such lands so ceded for the purpose
of a home for disabled soldiers, the criminal laws of the
United States, which apply only to places within their
exclusive jurisdiction, are not operative. See also Unit-
ed States vs. Barnaby, 51 Federal, 20.

§ 318a. Libel not Federal Offense. — The Supreme
Court of the United States in U. S. vs. Press Publishing
Company, 219 U. S., 1, held that a prosecution for libel
under the foregoing section could not be had in the Unit-
ed States Courts when the laws of the state of New York
under which the libel was circulated contained a unity
act providing that it was a criminal act to publish and
circulate a libel and since the laws of the state of New
York afforded adequate means for punishing such cir-
culation on a United States reservation in said State,
successful prosecution could not be had in the Federal
Courts for such circulation on such reservation and as a
distinct and separate offense from the publication. See
also Franklin vs. U. S., 216 U. S., 559.

CHAPTER XV.

PIRACY AND OTHER OFFENSES UPON THE HIGH SEAS.

§ 319. Generally.

320. Piracy in the Code: 5368—290.

321. Maltreatment of Crew by Officers of Vessel: 5347 — 291.

322. Extradition for this Offense: New Code, 321.
322a. Extradition.

323. Inciting Revolt of Mutiny on Ship-Board: 5359 — 292.
323a. Elements of Mutiny.

324. Revolt and Mutiny on Ship-Board: 5360 — 293.

325. Seaman Laying Violent Hands on His Commander: 5369 — 294.

326. Abandonment of Mariners in Foreign Ports: 5363 — 295.

327. Conspiracy to Cast Away Vessel: 5364 — 296.

328. Plundering Vessel, Etc., in Distress: 5358—297.

329. Attacking Vessel With Intent to Plunder: 5361—298.

330. Breaking and Entering Vessel, Etc.: 5362 — 299.

331. Owner Destroying Vessel at Sea: 5365 — 300.

332. Other Persons Destroying or Attempting to Destroy Vessel at

Sea: 5366and 5367—301.

333. Robbery on Shore by Crew of Piratical Vessel: 5371 — 302.

334. Arming Vessel to Cruise Against the Citizens of the United

States: 5284—303.

335. Piracy Under Color of a Foreign Commission: 5373 — 304.

336. Piracy by Subjects or Citizens of a Foreign State: 5374 — 305.

337. Running Away With or Yielding Up Vessel of Cargo: 5383 —

306.

338. Confederating, Etc., with Pirates: 5384 — 307.

339. Sale of Arms and Intoxicants Forbidden in Pacific Islands:

32 St. L., 33—308.

340. Offenses Under Preceding Section Deemed on High Seas: Act

February 14, 1902—309.
340a. High Seas — Decisions.

341. "Vessels of the United States" Defined: New Code, 310.

§ 319. Piracy is an offense against the international
law, and as snch, the authorities define it to be any for-
cible depredation on the high seas, perpetrated in gen-
eral hostility to mankind, for the gain or other private
ends of the doers. First Kent's Commentary, page 183,
defines it as follows:

"Piracy is robbery or a forcible depredation on the high seas, with-
out lawful authority, and done animo furancli and in the spirit and
intention of universal hostility. It is the same offense at sea with

(544)

Piracy and Other Offenses upon the High Seas. 545

robbery on land; and all tbe writers on the law of nations and on
the maritime law of Europe agree in this definition of piracy."

Lord Coke said that a pirate is a rover and a robber upon
the sea.

The statutes of the United States make piracy a Fed-
eral offense. The original punishment was by death. The
Act of January fifteenth, 1897, 29 Statute at Large, 487,
substituted life imprisonment.

§ 320. Piracy.— Section 290 of the new Code takes
the place of Section 5368 of the old Code, which had been
amended as before mentioned, and section 290 reads as
follows:

"Sec. 290. Whoever, on the high seas, commits the crime of piracy
as defined by the law of nations, and is afterwards brought into or
found in the United States, shall be imprisoned for Life."

Some cases of the Common Law doctrine, applied
either in the construction of the statutes or otherwise,
are the "Marinna Flora," 11 Wheat., 1; U. S. vs. Gilbert,
2 Sumn., 19; U. S. vs. Tully, 1 Gallis, 247; the "Ante-
lope," 10 Wheat., 66; U. S. vs. Jones, 3 Wash., C. C, 209;
United States vs. Pirates, 5 Wheat., 184; U. S. vs. Pal-
mer, 3 Wheat., 610; U. S. vs. Smith, 5 Wheat., 153; U.
S. vs. Klintock, 5 Wheat., 144.

In the case of Ambrose Light, 25 Federal, 408, Judge
Brown said:

"Accordingly, the definitions of piracy, aside from statutory piracy,
fall naturally into two classes, according as the offense is viewed
more especially as it affects the rights of nations, or is amenable to
criminal punishment under the municipal law. The Common Law
jurists and our standard authorities on Criminal Law, define piracy
as robbery on the high seas; or such acts of violence or felonious
taking on the high seas as upon land would constitute the crime of
robbery The majority of authorities on international law, how-
ever, define it substantially as Wheaton defines it, namely: as, 'the
offenses of depredating on the high seas without being authorized
by any sovereign State, or with commissions from different sover-
eigns at war with each other."

The reading of our statute sends us for a definition of
the offense to this last authority, and it may be accepted
as the correct definition.

546 Federal Criminal Law Procedure.

§ 321. Maltreatment of Crew by Officers of Vessel. —
Old Section 5347, by eliminating the word "American"
before the word '"vessel," and adding the words "of
the United States" after the word "vessel," becomes
new Section 291, as follows:

"Sec. 291. Whoever, being the master or officer of a vessel of the
United States, on the high seas, or on any other waters within the
admiralty and maritime jurisdiction of the United States, beats,
wounds, or without justifiable cause, imprisons any of the crew of
such vessel, or withholds from them suitable food and nourishment,
or inflicts upon them any cruel and unusual punishment, shall be
fined not more than one thousand dollars, or imprisoned not more
than five years, or both. Nothing herein contained shall be construed
to repeal or modify section forty-six hundred and eleven of the Re-
vised Statutes."

Originally, this Act included the words "malice,
hatred, or revenge"; and while these words were in the
statute, many decisions were rendered upon a state of
facts showing, or failing to show, such condition of
mind, but which decisions would not be at all helpful
under the statute in its present shape.

Under the authority of the United States vs. Trice, 30
Federal, 490, anyone who, by authority, exercises the
function of control over the actions of the crew, or any
part of it, by giving direction to their work, is an officer
within the meaning of the Eevised Statutes of the Unit-
ed States, and is liable to the penalty, if he beat or
wound one of the crew. Thus, upon a state of facts
which showed that one of the roust-abouts belonging to
the crew of a boat was set over the rest as captain of
the watch, which power to direct their work and demand
obedience to his orders, and while so acting, beat and
wounded one of the crew so under his command, he was
an officer within the meaning of the statute, and amena-
ble to its penalty.

Since the abolition of corporal punishment by the old
Section 4611 in the 1878 Statutes, a punishment by flog-
ging is without "justifiable cause." United States vs.
Cutler, 1 Curt., 501, 25 Federal Case No. 14910. In line
with the Trice case, cited supra, is United States vs.
Taylor, 2 Sumn., 584, 28 Federal Case No. 16442. It is
needless to sav in this connection that this statute pro-

Piracy and Other Offenses upon the High Seas. 547

tects the crew of a United States vessel, it does not mat-
ter upon what waters she be sailing, and where the of-
fense denounced by the statute is committed on hoard
such a vessel, it is an offense against the United States,
though the vessel be in a harbor or river or a foreign
country. United States vs. Bennett, 3 Hughes, 466, 24
Federal Cases, 14574; Roberts vs. Skoelfield, 20 Federal
Cases No. 11917. Under the authority of United States
vs. Reed, 86 Federal, 308, the captain of a vessel is
bound to exercise the same care to discover that his ves-
sel is properly provisioned when he undertakes a new
voyage, after having had difficulty or trouble at sea,
that he is bound to observe in the original provisioning
of his vessel at the outset of the voyage. Sections 4568
and 4612 of the old statutes provide what constitutes
short allowance of food, etc., as meant by the statute
under discussion. This section comprises four different
offenses: beating or wounding; imprisoning; deprivation
of suitable food and nourishment; the infliction of any
cruel and unusual punishment.

§ 322. Extradition for This Offense. — It was decided
by the Supreme Court, in United States vs. Ranschur,
that one who had committed an offense against this
statute, and who was apprehended in a foreign country
and extradited upon the charge of murder, could not be
tried in this country under an indictment found under
this section, even though the identical acts relied upon
to prove the charge of the indictment were the same acts
as those charged to have been relied upon for the charge
of murder. The Treaty, the Acts of Congress, and the
proceedings by which he was extradited, clothe him
with the right to exemption from trial for any other of-
fense until he has had opportunity to return to the coun-
try from which he was taken, for the purpose of trial
for the offense specified in the demand for his surrender.

§ 322a. Extradition. — For extradition generally, see
Section 42k; also Drew vs. Thaw, U. S. Supreme Court,
235 U. S. 432; McNamara vs. Henkel, U. S. Supreme
Court, 226 U. S. 520; Gluckman vs. Henkel, 221 U. S.;
508; ex parte Charlton, 185 Federal, 880; ex parte Gra-
ham, 216 Federal, 813; ex parte Zentner, 188 Federal,

548 Federal Criminal Law Procedure.

344 ex parte Urzna, 188 Federal, 541 ; Sheriff vs. Daily,
221 U. S., 280.

§ 322b. Extradition, Continued. — See section 5278
R. S. U. S. See also Innes vs. Tobin, U. S. Sup. Ct. Feb-
ruary 1916.

§ 323. Inciting Revolt or Mutiny on Ship Board. —
Section 5359 of the old statutes becomes Section 292 of
the new Code, without substantial change, except that
the words "of the United States" have been added after
the word "vessel"; the section now reading as follows:

"Sec. 292. Whoever, being of the crew of a vessel of the United
States, on the high seas, or on any other waters within the admiralty
and maritime jurisdiction of the United States, endeavors to make a
revolt or mutiny on board such vessel, or combines, conspires, or
confederates with any other person on board to make such revolt
or mutiny, or solicts, incites, or stirs up any other of the crew to
disobey or resist the lawful orders of the master or other officer of
such vessel, or to refuse or neglect their proper duty on board there-
of, or to betray their proper trust, or assembles with others in a
tumultuous and mutinous manner, or makes a riot on board thereof,
or unlawfully confines the master or other commanding officer there-
of, shall be fined not more than one thousand dollars, or imprisoned
not more than five years, or both."

The jurisdictional question suggested in the statute
is that only the acts therein mentioned become acts
punishable in United States Courts when the vessel is
a United States vessel; and when that is the case, the
acts are punishable in the United States, whether the
vessel be on the high seas, in foreign port, or harbor, or
upon waters within the admiralty and maritime judis-
diction of this government. The word "crew" in the
statute must necessarily include the mate and all other
inferior officers, as well as the crew proper. In fact,
it includes the entire force of the vessel, with the ex-
ception of the master. This was the holding in the
United States vs. Huff, 13 Federal, page 630. That case
also makes the distinction between mere passive dis-
obedience and active resistance. In other words, the
statute would not include a case of simple passive dis-
obedience of the master's orders on the part of one of
the crew, not participated in by others. So, also, that
case includes within the meaning of the statute an un-
lawful confinement of the master, even though such con-

Piracy and Other Offenses upon the High Seas. 549

finement was not physical, but merely a confinement by
intimidation, or threats of bodily injury from the free
use of every part of the vessel in the preformance of his
functions as master.

In the case of United States vs. Crawford, 25 Federal
Cases No. 14890, it was held that the vessel must be
provided to be an American vessel, but that such proof
can be made by parol. So, also, it was ruled in United
States vs. Seagrist, 27 Federal Case 16245, and 27 Fed-
eral Case No. 16037. A vessel engaged in the whaling
business, which has not taken out an American license
or enrollment, is not protected by this statute, and an
indictment will not hold under this section against her
crew for revolt. United States vs. Eogers, 27 Federal
Case No. 16189. See also United States vs. Jenkins,
26 Federal Case No. 15437a. For other cases illustrating
the statute, see United States vs. Sharp, 27 Federal Case
16246; United States vs. Doughty, 25 Federal Case
14987; United States vs. Kelley, 11 ' Wheat., 417; United
States vs. Smith, 27 Federal Case No. 16344; United
States vs. Forbes, 25 Federal Case No. 15129; U. S. vs.
Lynch, 26 Federal Case No. 15648; United States vs.
Thompson, 28 Federal Case No. 16492. As defense to an
indictment under this section, the Courts have permitted
the crew to show that the vessel was unseaworthy, and
that, therefore, they resisted its sailing, United States
vs. Ashton, 24 Federal Case No. 14470; also, where they
have refused to perform their duty on account of a pro-
posed deviation in the original line of voyage, United
States vs. Matthews, 26 Federal Case No. 15742.

§ 323a. Elements of Mutiny. — In order to warrant a
conviction under either Section 292 or 293 it must ap-
pear that the offense was committed on the high seas,
on a vessel of the United States, that defendants were
members of the crew, and that the person so deprived
of command was the master of the vessel, or officer in
command on board thereof, and while so in command
defendants or some of them feloniously confined him
and deprived him of the free and lawful exercise of
his authority, and also that the defendants were appre-
hended when first brought into the district where the
prosecution was instituted. U. S. vs. Reid et al. 210

550 Federal Criminal Law Procedure.

Federal, 486. Insults, profanity, inconsiderate treat-
ment, and occasional violence not of an unusual charac-
ter will not warrant mutiny. U. S. vs. Eeid, 210 Federal,
486.

§ 324. Revolt and Mutiny on Ship Board. — By add-
ing the words "of the United States" after the word
"vessel," old Section 5360 becomes new Section 293 in
the following words:

"Sec. 293. Whoever, being of the crew of a vessel of the United
States, on the high seas, or on any other waters within the admiralty
and maritime jurisdiction of the United States, unlawfully and with
force, or by fraud, or intimidation, usurps the command of such
vessel from the master or other lawful officer in command thereof,
or deprives him of authority and command on moard, or resists or
prevents him in the free and lawful exercise thereof, or transfers
such authority and command to another not lawfully entitled thereto,
is guilty of a revolt and mutiny, and shall be fined not more than two
thousand dollars and imprisoned not more than ten years."

Under the authority of United States vs. Haines, 26
Federal Case No. 15275, and United States vs. Forbes,
25 Federal Case No. 15129, as cited in Volume 6 Federal
Statutes, page 929, a revolt is an open rebellion or
mutiny of the crew against the authority of the Master
in the command, navigation, or control of the ship. If
the crew, in a mutiny, were to displace him from the
actual command of the ship, and appoint another in his
stead, that would clearly be a revolt. It would be an
actual usurpation of his authority on board of the ship
and an ouster of him from the possession and control
of it. As determined in United States vs. Almeida, 24
Federal Case No. 14433, the unlawful acts which now
fall within the definition of a maritime revolt are dis-
tributed by the language of the Section into four cate-
gories or classes: first, simple resistance to the exercise
of the captain's authority; second, the deposition of the
captain from his command; third, the transfer of the
captain's power to a third person; and, fourth, the usur-
pation of the captain's power by the accused party. See
also United States vs. Haines and United States vs.
Forbes, cited supra. Other cases are United States vs.
Borden, 24 Federal Case, 1202; United States vs. Giv-
ings, 25 Federal Case, 1331; United States vs. Haskell,

Piracy and Other Offenses upon the High Seas. 551

26 Federal Case, 207; United States vs. Peterson, 227
Federal Case, 515.

See also Sections 323 and 323a. Also U. S. vs. Rcid
et al., 210 Federal, 486

§ 325. Seaman Laying Violent Hands on His Com-
mander.— By changing the penalty in old Section 5369
from death to imprisonment for life, that section be-
comes Section 294 of the new Code, as follows:

"Sec. 294. Whoever, being a seaman, lays violent hands upon his
commander, thereby to hinder and prevent his fighting in defense
of his vessel or the goods intrusted to him, is a pirate, and shall
be imprisoned for life."

§ 326. Abandonment of Mariners in Foreign Ports.
— Section 5363 of the old statutes, taking into considera-
tion Section 310 of the new Code, which defines what the
words "vessel of the United States" means, is practical-
ly the same as Section 295 of the new Code, in the follow-
ing words :

"Sec. 295. Whoever, being master or commander of a vessel of the
United States, while abroad, maliciously and without justifiable cause
forces any officer or mariner of such vessel on shore, in order to
leave behind him in any foreign port or place, or refuses to bring
home again all such officers and mariners of such vessel whom he
carried out with him, as are in a condition to return and willing to
return, when he is ready to proceed on his homeward voyage, shall
be fined not more than five hundred dollars, or imprisoned not more
than six months, or both."

See United States vs. Ruggles, 5 Mass., 192; United
States vs. Coffin, 1 Sumn., 394; United States vs. Netch-
er, 1 Storey, 307; United States vs. Riddle, 4 Wash., 644;
Nieto vs. Clark, 18 Federal Case, 236.

In Chinese Laborers Case, 13 Federal Reporter, 291,
the Court held that the immigration laws of the United
States, which prohibited the importation of Chinese
laborers, did not apply to bringing a Chinese laborer
already on board the vessel when touching at a foreign
port or place. In other words, while on board an Ameri-
can vessel, a Chinese laborer is within the jurisdiction of
the United States, and does not lose, by his employment,
the right of residence here previously acquired under
the treaty with China. His status as an American citi-

552 Federal Criminal Law Procedure.

zen is not changed by the fact of his employment on an
American vessel, and that he is permitted by the captain
to land for a few hours in a foreign port.

§ 327. Conspiracy to Cast Away Vessel. — Old Sec-
tion 5364 becomes, without any material change, Sec-
tion 296 of the new Code, in the following words:

"Sec. 296. Whoever, on the high seas, or within the United States,
wilfully and corruptly conspires, combines, and confederates with
any other person, such other person being either within or without
the United States, to cast away or otherwise destroy any vessel, with
intent to injure any person that may have underwritten or may there-
after underwrite any policy of insurance thereon or on goods on
board thereof, or with intent to injure any person that has lent or
advanced, or may lend or advance, any money on such vessel on
bottomry or respondentia; or whoever, within the United States,
builds, or fits out, or aids in building or fitting out, any vessel with
intent that the same be cast away or destroyed, with the intent here-
inbefore mentioned, shall be fined not more than ten thousand dollars
and imprisoned not more than ten years."

The constitutionality of this section has been deter-
mined in United States vs. Cole, 5 McLean, 513; 25 Fed-
eral Cases No. 14832; and in that same case it was also
determined that the section related to the internal, as
well as the foreign commerce of the United States. In
that same case, it was also held that an actual injury was
not necessary; as, for instance, any combination or con-
spiracy to bring about the destruction of the vessel or
any portion of its cargo, ripened the offense of the stat-
ute.

In United States vs. Hand, 6 McLean, 274; 26 Federal
Cases No. 15296, the Court speaks of the specific intent
necessary under the statute, which must be both alleged
and proven.

§ 328. Plundering Vessel, Etc., in Distress. — By in-
creasing the punishment from ten years to life imprison-
ment, old Section 5358 becomes new Section 297, in the
following words:

"Sec. 297. Whoever plunders, steals or destroys any money, goods,
merchandise, or other effects, from or belonging to any vessel in
distress, or wrecked, lost, stranded, or cast away, upon the sea, or
upon any reef, shoal, bank, or rocks of the sea, or in any other place
within the admiralty and maritime jurisdiction of the United States,

Piracy and Other Offenses upon the High Seas. 553

shall be fined not more than five thousand dollars and imprisoned
not more than ten years; and whoever wilfully obstructs the escape
of any person endeavoring to save his life from such vessel, or the
wreck thereof; or whoever holds out or shows any false light, or
extinguishes any true light, with intent to bring any vessel sailing
upon the sea into danger, or distress, or ship-wreck, shall be imprisoned
not less than ten years and may be imprisoned for life."

Under United States vs. Coombs, 12 Peters, 72, it is
entirely immaterial whether the goods be upon the ves-
sel or not, or whether the goods be above high water
mark. It is entirely sufficient if it be property belonging
to any ship or vessel. This same case determined the
constitutionality of this section, and held that it was
within the power of Congress, under the commerce
clause of the Constitution.

In United States vs. Stone, 8 Federal, 232, Judge Ham-
mond overruled a motion for a new trial which was re-
quested by certain men who were convicted for plunder-
ing the wreck of the City of Vicksburg, out of which
fifty-one indictments were found; and in that opinion,
he held that Section 5358 was comprehensive, and of-
forded an extraordinary protection to property within the
admiralty and maritime jurisdiction of the United
States, by creating and punishing a substantive and dis-
tinct offense for all acts of spoliation upon the property
belonging to a vessel wrecked or in distress; that it was
not alone the crime of larceny that the statute punishes,
but any act of depredation whether it be of the charac-
ter that would be piracy if committed on the high seas,
robbery or other forcible taking, theft, trespass, mali-
cious mischief, or any fraudulent and criminal breach of
trust, if committed on land, of property solely under
the protection of Common or statutory law of the State;
and that no specific intent was necessary under the stat-
ute to constitute the offense. In other words, any in-
tent, except that of restoring the goods to the vessel
of the owner, was the unlawful intent comprehended
under the statute; and whether conceived at the time of
the taking, or subsequently thereto, if carried out, made
the offense complete.

United States vs Sanche was the upholding of a con-
spiracy indictment under Section 5440, for a violation of

554 Federal Criminal Law Procedure.

5358. Other cases bearing upon different features of
this section are United States vs. Kessler, 26 Federal
Cases, 766; United States vs. Pitman, 27 Federal Case,
540; United States vs. Smiley, 27 Federal Cases, 1132.

§ 329. Attacking Vessel with Intent to Plunder.—
Because of Section 272 of the new Code, heretofore not-
ed, Section 298 of the new Code, which is a re-enactment
of Section 5361 of the old statutes does not enumerate
the waters upon which the offense may be committed,
and Section 298 is in the following words:

"Sec. 298. Whoever, upon the high seas or on any other waters
within the admiralty and maritime jurisdiction of the United States,
by surprise or by open force, maliciously attacks or sets upon any
vessel belonging to another, with an intent unlawfully to plunder the
same, or to despoil any owner thereof of any moneys, goods, or mer-
chandise laden on board thereof, shall be fined not more than five
thousand dollars and imprisoned not more than ten years."

United States vs. Stone, 8 Federal, 232, cited supra.

§ 330. Breaking and Entering Vessel, Etc. — By
changing old Section 5362 so as to limit it to offenses
that are committed out of the jurisdiction of any par-
ticular State, such section becomes Section 299 of the
new Code, in the following words:

"Sec. 299. Whoever, upon the high seas, or on any other waters
within the admiralty and maritime jurisdiction of the United States,
and out of the jurisdiction of any particular State, breaks or enters any
vessel, with intent to commit any felony, or maliciously cuts, spoils,
or destroys any cordage, cable, buoys, buoy rope, head fast, or other
fast, fixed to the anchor or moorings belonging to any vessel, shall
be fined not more than one thousand dollars and imprisoned not more
than five years."

§ 331. Owner Destroying Vessel at Sea. — Old Sec-
tion 5365 denounced the acts only when committed upon
the high seas. New Section 300 so broadens the offense
as to include all the waters within the admiralty and
maritime jurisdiction of the United States, and reads as
follows:

"Sec. 300. Whoever, upon the high seas or on any other waters
within the admiralty and maritime jurisdiction of the United States,
wilfully and corruptly casts away or otherwise destroys any vessel,

Piracy and Other Offenses upon the High Seas. 555

of which he is owner, in whole or in part, with intent to prejudice
any person that may underwrite any policy of insurance thereon, of
any merchant that may have goods thereon, or any other owner of
such vessel, shall be imprisoned for life or for any term of years."

§ 332. Other Persons Destroying or Attempting to
Destroy Vessel at Sea.— Section 301 of the new Code
takes the place of old Sections 5366 and 5367, by incor-
porating both the act and the attempt to perform the
act of destruction, and is in the following words:

"Sec. 301. Whoever, not being an owner, upon the high seas or
on any other waters within the admiralty and maritime jurisdiction
of the United States, wilfully and corruptly casts away or otherwise
destroys any vessel of the United States to which he belongs, or,
wilfully, with intent to destroy the same, sets fire to any such vessel,
or otherwise attempts the destruction thereof, shall be imprisoned
not more than ten years."

The Act, it will be noted, covers the offense not only
upon the high seas, as did the original statutes, but upon
any other waters within the admiralty and maritime
jurisdiction of the United States. In United States vs.
Vanranst, 28 Federal Case, No. 16608, the Court held
that the offense was complete under this section if the
mate destroyed the vessel, even though he had no in-
terest therein, and even though the plan for its destruc-
tion was laid before the sailing by the owner himself.
See also United States vs. Jacobson, 26 Federal Cases,
No. 16461. See also United States vs. Wilson, 28 Fed-
eral Case, 718; U. S. vs. McAvoy, 26 Federal Case, 1044.

§ 333. Robbery on Shore by Crew of Piratical Ves-
sel.— Section 5371 becomes Section 302 of the new Code
as follows:

"Sec. 302. Whoever, being engaged in any piratical cruise, or en-
terprise, or being of the crew of any piratical vessel, lands from such
vesseL and on shore commits robbery, is a pirate, and shall be im-
prisoned for life."

In the construction of the general terms "piratical
cruise," of his section, the pleader will look to the def-
inition of piracy, as heretofore given.

§ 334. Arming Vessel to Cruise Against the Citizens

556 Federal Criminal Law Procedure.

of the United States. — Section 303 of the new Code takes
the place of old Section 5284, and is as follows:

"Sec. 303. Whoever, being a citizen of the United States, without
the limits thereof, fits out and arms, or attempts to fit out and arm,
or procures to be fitted out and armed, or knowingly aids or is con-
cerned in furnishing, fitting out, or arming, any private vessel of
war, or privateer, with intent that such vessel shall be imployed to
cruise or commit hostilities upon the citizens of the United States,
or their property, or whoever takes the command of or enters on
board of any such vessel, for such intent, or who purchases any in-
terest in any vessel with a view to share in the profits thereof, shall
be fined not more than ten thousand dollars and imprisoned not more
than ten years. The trial for such offense, if committed without the
limits of the United States, shall be in the district in which the offen-
der shall be apprehended or first brought."

See United States vs. Howard, 3 Wash., 430; 26 Fed-
eral Case, 390.

§ 335. Piracy Under Color of a Foreign Commission.
— Section 5373 of the old Statute becomes Section 304 of
the new Code, as follows:

"Sec. 304. Whoever, being a citizen of the United States, commits
any murder or robbery, or any act of hostility against the United States,
or against any citizen thereof, on the high seas, under color of any
commission from any foreign prince, or state, or on pretense of author-
ity from any person, is, notwithstanding the pretense of such authority,
a pirate, and shall be imprisoned for life."

See United States vs. Palmer, 3 Wheat,, 610; United
States vs. Baker, 5 Blatchf., 6; 24 Federal Cases, 962;
United States vs. Hutchings, 26 Federal Case, 440; Unit-
ed States vs. Terrel, 1 Federal Case, 999.

§ 336. Piracy by Subjects or Citizens of a Foreign
State. — Section 305 of the new Code displaces Section
5374 of the old statutes, and is as follows:

"Sec. 305. Whoever, being a citizen or subject of any foreign state,
is found and taken on the sea making war upon the United States,
or cruising against the vessels and property thereof, or of the citizens
of the same, contrary to the provisions of any treaty existing between
the United States and the state of which the offender is a citizen
or subject, when by such treaty such acts are declared to be piracy,
is guilty of piracy, and shall be imprisoned for life."

Piracy axd Other Offenses upon the High Seas. 55*3

§ 337. Running Away with or Yielding up Vessel or
Cargo.— Old Section 5383 becomes new Section 306 in
the following words:

"Sec. 306. Whoever, being a captain or other officer or mariner
of a vessel upon the high seas or on any other waters within the
admiralty and maritime jurisdiction of the United States, piratically
or feloniously runs away with such vessel, or with any goods or mer-
chandise thereof, to the value of fifty dollars, or who yields up such
vessel voluntarily to any pirate, shall be fined not more than ten
thousand dollars, or imprisoned not more than ten years, or both."

In United States vs. Tully, 28 Federal Case, 16545, the
intent must be alleged and proven, as in other criminal
cases requiring such proof and allegation; but the parat-
ical and felonious running away with a vessel does not
mean that personal force and violence must have been
used. See also United States vs. Howard, 26 Federal
Case, 15404; United States vs. Kessler, 26 Federal Case,
15528.

§ 338. Confederating, Etc., with Pirates. — New Sec-
tion 307 takes the place of old Section 5384, and is in the
following words:

"Sec. 307. Whoever attempts or endeavors to corrupt any com-
mander, master, officer, or mariner to yield up or to run away with
any vessel, or with any goods, wares, or merchandise, or to turn
pirate, or to go over to or confederate with pirates, or in any wise
to trade with any pirate, knowing him to be such, or furnishes such
pirate with any ammunition, stores, or provisions of any kind, or
fits out any vessel knowingly and, with a design to trade with, supply,
or correspond with any pirate or robber upon the seas; or whoever
consults, combines, confederates, or corresponds with any pirate or
robber upon the seas, knowing him to be guilty of any piracy or
robbery; or whoever, being a seaman, confines the master of any
vessel, shall be fined not more than one thousand dollars and impris-
oned not more than three years."

See U. S. vs. Howard, 26 Federal Cases, 390.

§ 339. Sale of Arms and Intoxicants Forbidden in
Pacific Islands.— The Act of February 14, 1902, 32 Stat-
ute at Large, 33, becomes Section 308 of the new Code,
in the following words:

"Sec. 308. Whoever, being subject the authority of the United
States, shall give, sell, or otherwise supply any arms, ammunition,

558 Federal Criminal Law Procedure.

explosive substance, intoxicating liquor, or opium to any aboriginal
native of any of the Pacific Islands lying within the twentieth par-
allel of north latitude and the fortieth parallel of south latitude,
and the one hundred and twentieth meridian of longitude west and
the one hundred and twentieth meridian of longitude east of
Greenwich, not being in the possession or under the protection of
any civilized power, shall be fined not more than fifty dollars or
imprisoned not more than three months, or both. In addition to such
punishment, all articles of a similar nature to those in respect to
which an offense has been committed, found in the possession of
the offender, may be declared forfeited. If it shall appear to the
court that such opium, wine, or spirits have been given bona fide
for medical purposes, it shall be lawful for the court to dismiss the
charge."

§ 340. Offenses Under Preceding Section Deemed on
High Seas. — Another part of the Act of February 14,
1902, becomes Section 309 of the new Code, as follows:

"Sec. 309. All offenses against the provisions of the section last
preceding, committed on any of said islands, or on the waters, rocks,
or keys adjacent thereto, shall be deemed committed on the hign
seas on board a merchant ship or vessel belonging to the United States,
and the courts of the United States shall jurisdiction accordingly.''

Sec. 340a. High Seas and Decisions.

For discussion of high seas and jurisdiction of United
States courts see Miller vs. U. S., 242 F. 907.

A high sea crime is triable in any district where the de-
fendant is found or into which he is first brought. Peder-
sen vs. U. S., £71 F. 187, but this does not mean tempo-
rary stopping of a ship as at quarantine station.

§ 341. Vessels of the United States Denned. — Section
310 of the new Code reads as follows:

"Sec. 310. The words 'vessel of the United States,' wherever they
occur in this chapter, shall be construed to mean a vessel belonging
in whole dr in part to the United States, or any citizen thereof, or
any corporation created by or under the laws of the United States, or
of any State, Territory, or District thereof."

CHAPTER XVI.

CERTAIN OFFENSES IN THE TERRITORIES.

§ 342. No Conflict Between Territory Code and United States Code:
New Code, 311.

343. Circulation of Obscene Literature, Promoting Abortion, How

Punished: 5389—312.

344. Polygamy: 5352—313

345. Unlawful Cohabitation: New Code, 314.

346. Joinder of Counts: New Code, 315.

347. Decisions on Foregoing Statutes.

348. Adultery: I Sup., 568—316.

349. Incest: I Sup., 568—317.

350. Fornication: I Sup., 568—318.

351. Certificates of Marriage; Penalty for Failure to Record.

352. Prize Fights, Bull Fights, etc., II Sup., 446—320.

353. "Pugilistic Encounter" Defined: II Sup., 446—321.

354. Train Robberies in Territories, Etc.: New Code, 322.

§ 324. Territory Code and U. S. Code.— The Code
provides certain specific offenses for the territories of the
United States and if there be in any territory a statute
relating to a like matter, such statute ceases to be controll-
ing. In other words, the law of the parent government
is paramount. I'he legislation of Congress will super-
sede the legislation of a state or territory, without specific
provisions to that effect, in those cases wherein the same
matter is the subject of legislature by both. There the
action of Congress may well be considered as covering the
entire ground. David vs. Beason, 133 U. S., 33. Chan-
cellor Kent in 1st Com., page 387, says on this subject,
"Two distinct laws cannot at the same time be exercised
in relation to the same subject, effectually, and at the
same time be compatible with each other. If they cor-
respond in every respect then the latter is idle and in-
operative. If they differ they must, in the nature of
things, oppose each other so far as they do differ. '; The
Supreme Court of the United States in Passenger Cases,
7 How., 394, said, "A concurrent power excludes the idea
of a dependent power. The general government, and a
state, exercise concurrent powers in taxing the people of
the State. The object of taxation may be the same,
but the motives and policy of the tax are different and

(559)

560 Federal Criminal Law Procedure.

the powers are distinct and independent. A concurrent
power in two distinct sovereignties to regulate the same
thing is as inconsistent in principle as it is impracticable
in action. It involves a moral and physical impossibility.
A joint action is not supposed and two independent wills
cannot do the same thing. The action of one, unless
there be an arrangement, must necessarily precede the
action of the other; and that which is first, being com-
petent, must establish the rule. If the powers be equal,
as must be the case, both being sovereign, one may un-
do what the other does, and this must be the result of
their action." In Kie vs. U. S., 27 Federal, 351, the
Court said, "No law of Oregon is to have effect in Alaska
if it is in conflict with a law of the United States. There
is such a conflict, within the meaning of the statute, not
only when these laws contain different provisions on the
same subject, but when they contain similar or identical
ones. In the latter case, it is the law of Congress that
applies and not that of the State. See also U. S. vs. Clark,
46 Federal, 633. In re Nelson 69 Federal, 712. The
national government is supreme and territorial govern-
ments are subordinate thereto.

There will be no confusion in the application of this
doctrine as between a territory of the United States and
the United States and a state and the United States. It
will be remembered that a state is a sovereignty just as
surely as the Federal Government is a sovereignty and
each has the legal right to protect its own people against
the same act by a statute denouncing the act as an offense
and both statutes would be the law. In other words, as
stated in Moore vs. Illinois by the Supreme Court of the
United States, every citizen of the United States is also
a citizen of a State or Territory. He may be said to owe
allegiance to two sovereigns and may be liable to punish-
ment for an infraction of the laws of either. The same
act may be an offense or transgression of the laws of both.
That either or both may punish such an offender cannot
be doubted, yet it cannot be truly averred that defendant
has been twice punished for the same offense, but only
that by one act he has committed two offenses, for each
of which h^ i-s justly punishable. He could not plead the

Certain Offenses in the Territories. 561

punishment by one in bar to a conviction by the other.
A state ^ may punish the offense of uttering or passing
false coin as a cheat or fraud practiced on its citizens.
Fox vs. State, 5 How., 432. In the case of the United
States vs. Marigold, 9 How., 560, it is held that Congress,
in the proper exercise of its authority, may punish the
same act as an offense against the United States. In
Snow vs. U. S. 18 Wall, 317, it was said that "Strictly
speaking, there is no sovereignty in a territory of the
United States, but that of the United States itself."

The case of Moore vs. Illinois, cited above, may be con-
sidered most liberal in a dictum definition of state sover-
eignty. The trend of the decisions of the Supreme Court
of the United States since then is that when the Federal
Government enters a field even of civil legislation, it be-
comes exclusive and its statutes are the paramount law.
In other words the United States is the superior sover-
eignty, as has been announced most recently in the Hours
of Service cases, wherein the Supreme Court held that
since the Federal Government had by statute fixed a
limit to the hours of service, a state statute fixing a dif-
ferent limit was void. Of course it will be remembered
that there are some jurisdictions into which the Federal
Government cannot enter. They belong exclusively to
the State.

The offenses herein treated of are not confined to the
Territories, but are punishable if committed within or
upon any place within the exclusive jurisdiction of the
United States, such as forts or arsenals, Government
reservations, public building, sites, etc., as is shown by
Section 311, which reads as follows:

"Sec. 311. Except as otherwise expressly provided, the offenses
defined in this chapter shall be punished as hereinafter provided,
when committed within any Territory or District, or within or upon
any place within the exclusive jurisdiction of the United States."

§ 343. Circulation of Obscene Literature; Promoting
Abortion; How Punished. — Section 312 of the new Code
includes practically all of the elements of the statute re-
lating to the abuse of the United States mails in the trans-
mission of obscene, etc., matter, and of the Interstate

562 Federal Criminal Law Procedure.

Commerce Statute, which relates to the shipping or carry-
ing of obscene matter, etc. Section 312 of the new Code
is in the following language, which displaces all provi-
sions of old Section 5389:

"Sec. 312. Whoever shall sell, lend, give away, or in any manner
exhibit, or offer to sell, lend, give away, or in any manner exhibit,
or shall otherwise publish or offer to publish in any manner, or shall
have, in his possession for any such purpose, any obscene book, pam-
phlet, paper, writing, advertisement, circular, print, picture, drawing, or
other representation, figure, or image on or of paper or other ma-
terial, or any cast, instrument, or other article of an immoral nature
or any drug or medicine, or any article whatever, for the prevention
of conception, or for causing unlawful abortion, or shall advertise the
same for sale, or shall write or print, or cause to be written or printed,
any card, circular, book, pamphlet, advertisement, or notice, of any
kind, stating when, where, how, or of whom, or by what means, any
of the articles above mentioned can be purchased or obtained, or
shall manufacture, draw, or print, or in any wise make any of such
articles, shall be fined not more than two thousand dollars, or im-
prisoned not more than five years, or both."

§ 344. Polygamy. — Section 313 of the new Code dis-
places old Statute 5352, and the Act of March 22, 1882,
shown in First Supplement, 331, and is in the following
language:

"Sec. 313. Every person who has a husband or wife living, who
marries another, whether married or single, and any man who
simultaneously, or on the same day, marries more than one woman,
is guilty of polygamy, and shall be fined not more than five hundred
dollars and imprisoned not more than five years. But this section
shall not extend to any person by reason of any former marriage whose
husband or wife by such marriage shall have been absent for five suc-
cessive years, and is not known to such person to be living, and is
believed by such person to be dead, nor to any person by reason of
any former marriage which shall have been dissolved by a valid decree
of a competent court, nor to any person by reason of any former mar-
riage which shall have been pronounced void by a valid decree of a
competent court, on the ground of nullity of the marriage contract."

§ 345. Unlawful Cohabitation. — Section 314 of the
new Code reads as follows:

"Sec. 314. If any male person cohabits with more than one woman
he shall be fined not more than three hundred dollars, or imprisoned
not more than six months, or both."

Certain Offenses in the Territories. 563

§ 346. Joinder of Counts.— Section 315, which per-
mits joinder in the same indictment of charges under the
two above mentioned sections, is as follows:

"Sec. 315. Counts for any or all of the offenses named in the two
sections last preceding may be joined in the same information or in-
dictment."

§ 347. Decisions.— The offense of polygamy, as dis-
tinguished from open and notorious cohabitation, was not
an offense under the Common Law, and, therefore, is
statutory in this country. The Supreme Court of the
United States, in the Miles Case, 103 U. S., 311, announc-
ed the doctrine that the proof of marriage will not be
limited to only such witnesses as were eyewitnesses.
Cohabitation and reputation of being husband and wife
are usually considered together in questions concerning
the proof of marriage. This was followed in United
States vs. Higgerson, Volume 46, Federal Reporter, 750.
It is always pertinent, under the offense of bigamy and
adultery and kindred offenses, to prove the marriage rela-
tion. In the leading case of Cannon vs. United States,
116 U. S., page 55; 29 Law Ed., 561, the Supreme Court
held that a man "cohabits" with more that one woman
when holding out to the world two or more women as his
wives, by his language or conduct, or both, and when he
lives in the same house with them, and eats at the table
of each a portion of the time, although he may not occupy
the same bed, sleep in the same room, or actually have
sexual intercourse with either of them.

In ex parte Snow, 120 U. S., 274, 30 Law Ed., 658, the
Supreme Court held that cohabiting was a continuous
offense, and can be committed but once for the purpose
of indictment or prosecution, prior to the time the pro-
secution is instituted; and a grand jury cannot divide
the offense into separate offenses, and find separate in-
dictments; as, where a man unlawfully cohabited with
seven women for twenty-five months, there could be but
one indictment.

§ 348. Adultery.— Section 316 of the new Code takes
the place of the Act of March 3, 1887, shown at First
Supplement, 568, and is in the following words:

564 Federal Criminal Law Procedure.

"Sec. 316. Whoever shall commit adultery shall be imprisoned not
more than three years; and when the act is committed between a
married woman and a man who is unmarried, both parties to such
act shall be deemed guilty of adultery; and when such act is com-
mitted between a married man and a woman who is unmarried, the
man shall be deemed guilty of adultery."

See. 348a. Adultery-Decisions.

The above section does not apply to an Indian on an
Indian reservation, U. S. vs. Dennis Quiver, U. S. Sup. Ct.
Oct. Term, 1915.

§ 349. Incest. — Section 317 of the new Code displaces
the Act of March 3, 1887, shown at First Supplement,
4568, and is in the following words:

"Sec. 317. Whoever, being related to another person within and
not including the fourth degree of consanguinity computed accord-
ing to the rules of the civil law, shall marry or cohabit with, or have
sexual intercourse with such other so related person, knowing her or
him to be within said degree of relationship, shall be deemed guilty
of incest, and shall be imprisoned not more than fifteen years."

Incest was not an offense at Common Law, though it
was punished in the churches. The language of the stat-
ute demands knowing intercourse between parties re-
lated within the fourth degree of consanguinity, such re-
lationship to be computed according to the rules of the
Civil Law. It will be borne in mind that the method of
computing relationship differs in the Canon Law, as
adopted into the Common Law, and the Civil Law. In
other words, under the Canon Law, or the Common Law,
the computing begins at the common ancestor, and
reckons downward, and in whatever degree the two per-
sons, or the most remote, is distant from the common
ancestor, that is the degree in which they are related.
The method in the Civil Law is to count upward from
either of the persons related, to the common ancestor, and
then downward to the other, reckoning a degree for each
person, both ascending and descending. In other words,
the Canonists took the number of degrees in the longest
line; the Civilians, the sum of the degrees in both lines.
Anderson's Dictionary of Law, 229; 2 Blackstone's Com-
mentary, 206-207; 4 Kent, 412; 2 Litt. Coke, 158. Under

Certain Offenses in the Territories. 565

this statute, it is also necessary that the indictment al-
lege, and the proof show, the fact of knowledge of such
degree of relationship.

§' 350. Fornication.— Section 318 of the new Code,
which is also a part of the Act of March 3, 1887, First
Supplement, 568, reads as follows:

"Sec. 318. If any unmarried man or woman commits fornication,
each shall be fined not more than one hundred dollars, or imprisoned
not more than six months."

§ 351. Cerificates of Marriage; Penalty for Failure to
Record.— From the Act of March 3, 1887, First Supple-
ment, 568, comes Section 319 of the new Code, as follows:

"Sec. 319. Every ceremony of marriage, or in the nature of a
marriage ceremony of any kind, whether either or both or more of
the parties to such ceremony be lawfully competent to be the sub-
ject of such marriage or ceremony or not, shall be certified by a cer-
tificate stating the fact and nature of such ceremony, the full name of
each of the parties concerned and the full name of every officer, priest,
and person, by whatever style or designation called or known, in any
way taking part in the performance of such ceremony, which certifi-
cate shall be drawn up and signed by the parties to such ceremony and
by every officer, priest, and person taking part in the performance
of such ceremony, and shall be by the officer, priest, or other person
solemnizing such marriage or ceremony filed in the office of the
probate court, or, if there be none, in the office of the court having
probate powers in the county or district in which such ceremony
shall take place, for record, and shall be immediately recorded, and
be at all times subject to inspection as other public records. Such
certificate, or the record thereof, or a duly certified copy of such
record, shall be prima facie evidence of the facts required by this
section to be stated therein in any proceeding, civil or criminal, in
which the matter shall be drawn in question. But nothing in this
section shall be held to prevent the proof of mariages, whether law-
ful or unlawful, by any evidence othewise legally admissible for that
purpose. Whoever shall wilfully violate any provision of this section
shall be fined not more than one thousand dollars, or imprisoned not
more than two years, or both. The provisions of this section shall
apply only within the Territories of the United States."

It will be noted that this section applies only in the
Territories, and, therefore, it would seem that the general
provisions of Section 311 of this chapter are excepted
by this special provision in Section 319.

566 Federal Criminal Law Procedure.

§ 352. Prize Fights, Bull Fights, Etc.— From the Act
of February 7, 1896, Second Supplement, 446, is taken in
substance Section 320 of the new Code, in the following
language:

"Sec. 320. Whoever shall voluntarily engage in a pugilistic en-
counter between man and man or a fight between a man and a bull
or any other animal, for money or for other thing of value, or for
any championship, or upon the result of which any money or any-
thing of value is bet or wagered, or to see which any admission fee
is directly or indirectly charged, shall be imprisoned not more than
five years. The provisions of this section shall apply only within
the Territories of the United States and the District of Columbia."

§ 353. Pugilistic Encounter Defined. — From the same
last above mentioned Act also comes the' definition of
"pugilistic encounters," as shown in Section 321 of the
new Code, as follows :

"Sec. 321. By the term "pugilistic encounter," as used in the sec-
tion last preceding, is meant any voluntary fight by blows by means
of fists or otherwise, whether with or without gloves, between two
or more men, for money or for a prize of any character, or for any
other thing of value, or for any championship, or upon the result
of which any money or anything of value is bet or wagered, or to
see which any admission fee is directly or indirectly charged."

§ 354. Train Robberies in Territories, Etc.— Sec-
tion 322 of the new Code contains all of the elements
of the Act of July 1, 1902, and is in the following words:

"Sec. 322. Whoever shall wilfully and maliciously trespass upon
or enter upon any railroad train, railroad car, or railroad locomotive,
with the intent to commit murder, or robbery, shall be fined not
more than five thousand dollars, or imprisoned not more than twenty
years, or both. Whoever shall wilfully and maliciously trespass upon
or enter upon any railroad train, railroad car, or railroad locomotive,
with intent to commit any unlawful violence upon or against any
passenger on said train, or car, or upon or against any engineer, con-
ductor, fireman, brakeman, or any officer or employee connected with
said locomotive, train, or car, or upon or against any express
messenger, or mail agent on said train or any car thereof, or to com-
mit any crime or offense against any person or property thereon, shall
be fined not more than one thousand dollars, or imprisoned not more
than one year, or both. Whoever shall counsel, aid, abet, or assist
in the perpetration of any of the offenses set forth in this section
shall be deemed to be a principal therein. Upon the trial of any

Certain Offenses in the Territories. 567

person charged with any offense set forth in this section, it shall not
be necessary to set forth or prove the particular person against whom
it was intended to commit such offense, or that it was intended to
commit such offense against any particular person."

The wilful and malicious intent cannot be inferred from
any uncertain statement in the indictment. It must be
specifically alleged.

CHAPTER XVII.

INTERNAL REVENUE.

§ 355. Raising of Revenue, Generally.
355a. Offer of Compromise.

356. Trade or Business Not to Be Carried on Until Revenue Paid:

3232.

357. Partnerships: 3234.

358. Must Exhibit Stamps: 3239.

359. Rectifiers, Liquor Dealers, Etc., Carrying on Business Without

Paying Special Tax, Etc., 3242—16.
359a. Indictment.
359b. Liquor Dealers.

360. C. 0. D. Decisions Under Above.
360a. Delivery to Customer.

361. Fact Cases.

362. Proof of License.

363. Distiller Defrauding or Attempting to Defraud United States

of Tax on Spirits: 3257.
363a. Repeal of Distillery Statute.

364. Breaking Locks, Gaining Access, Etc., 3268.

365. Signs to Be Put Up By Distillers and Realers and Other

Regulations: 3279, 3280, 3281, 3296.
365a. Concealment, Etc.

366. Books to Be Kept by Rectifiers and Wholesale Dealers; Pen-

alty: 3318.

367. Stamps and Brands to be Effaced from Empty Cask 3324.

368. Re-use of Bottles, Etc., Without Removing Stamps 29 Stat. L.,

627—6.
368a. Must be Evidence of Re-filling.

369. Removing Any Liquors or Wines Under Any Other Than

Trade. Names; Penalty: 3449.

370. Oleomargarine.

370a. Oleomargarine — Indictment.

§ 355. The question was early determined by the su-
preme Court, in the license tax cases, 5 Wallace, 462, that
the power of the United States Government to require
licenses to be paid before a given business could be car-
ried on within a State was not contrary to the Constitu-
tion, nor against public policy. The apparent inconsis-
tency of such a position with the principle that the State
shall have exclusive control over internal commerce, or
its own domestic trade, is onlv apparent, and gives wav

(568")

Internal Revenue. 5G9

to the more paramount principle that each Government,
State and National, has such inherent powers as belong
to sovereign governments. The compliance with a Fed-
eral International Revenue tax Statute quarantees no
rights against the State tax statutes. If there be a tax
both by the Federal Government and by the State Gov-
ernment upon the same occupation, each tax must be
paid, and the paying of one does not authorize the car-
rying on of the business with immunity form prose-
cutions by the other power. So, likewise, the punish-
ment of one who fails to comply with the provisions
of both Government does not preclude his punishment
by the other Government upon the doctrine that he
would be twice punished for the same offense. One
convicted under the State law for selling whiskey
and punished, could also be convicted and punished
under the Federal law for the same offense. In
Cross vs. North Carolina, 132 U. S., 131, 33 Law Ed.,
287, the Supreme Court affirmed doctrine that one who
forged note and passed it into books of National Bank
to deceive examiner was liable to prosecution in both
State and Federal Court.

§ 355a. Offer of Compromise. — Agreement of deputy
not to prosecute in consideration therefor. Section 3229
of the Revised Statutes authorizes the Commissioner of
Internal Revenue, with the advice and' consent of the
Secretary of the Treasury, and the Attorney General, to
compromise any civil or criminal case arising under the
internal revenue laws. Such compromise may be made
even after a suit or prosecution has been commenced. In
the case of Willingham vs. U. S., 208 Federal, 137, the.
Court of Appeals for the Fifth Circuit held that where a
deputy internal revenue collector promised the defendant
that if he would pay the tax due and the penalty thereon,
that no prosecution would be commenced, which offer was
accepted by the defendant, and thereafter the Govern-
ment instituted prosecution, that the trial judge should
have submitted to the jury a special charge setting forth
such offer to compromise as a binding agreeement with
the Government and a failure to give such special charge
was error.

570 Federal Criminal Law Procedure.

The decision, instead of being based upon the defend-
ant having purchased immunity, is predicated upon the
statute authorizing the Government's chief revenue of-
ficer to effect compromises and that the defendant had a
right to rely thereon, even though he did not follow
the technical rules prescribed for the making of such of-
fers in compromise.

This case also inferentially speaks of the severity of a
punishment which was a hundred dollars fine and two
years' imprisonment.

Sec. 355b. Compromise, Continued.

The acceptance of the tax and penalty and the state-
ment that there would be no prosecution is a settled rule
under the above statute, Eau vs. U. S., 260 F. 131.

The compromise of a criminal case likewise prevents
the forfeiture of goods seized under libel, U. S. vs. One,
etc., 263 F. 241.

§ 356. Internal Revenue Offenses. — This chapter will
not attempt to deal with all of the Federal Internal Reve-
nue offenses, but only such statutes as are most frequent-
ly violated, and some of which are difficult to find.

Trade or Business Not to be Carried On Until Tax Paid.
— Section 3232 of the Revised Statutes reads as follows:

"Sec. 3232. No person shall be engaged in or carry on any trade
or business hereinafter mentioned until he has paid a special tax
therefor in the manner hereinafter provided."

The case of United States vs. Clair, 2 Federal, page 55,
which construes Section 3232, has never been questioned
as the proper construction; that is, that the provisions
of the Statute leave no room for doubt that the tax
must be paid in advance. The business is prohibited,
except when thus licensed; and until the tax is paid,
it cannot be lawfully pursued. The case of United
States vs. Pressy, 1 Lowell, 319, which arose during the
Reconstruction Period, and which contained some dicta
with reference to carrying on the business after an ap-
plication for assessment, will not be confused into an
authority contradicting the Clair case. The wording of
the statute, and the entire spirit thereof, as well as
the policy of the Government that it shall take no chan-

Internal Revenue. ."., l

ces, supports the construction noted in the Clair case.
The_license must be first secured.

This construction is further supported by the case of
the United States vs. Angell, 11 Federal, page 34, where-
in the Court held that a receipt for a license tax is not
retroactive, and cannot be admitted in evidence on the
charge for selling spiritous liquors by retail during a
period of time prior to its date. To hold otherwise,
would be to permit the violator to pay his tax after he
had become a dealer, and thus, in effect, secure a pardon.
Judge Clark says, in the Angell case:

"Again, the penalty had been incurred before the payment of the
tax, and the receipt given would not operate as a pardon. The law-
makes no provision for such an effect; nor could the collector of
taxes confer it. The collector could not pardon the offense; the
President alone could do that."

See also United States vs. Van Horn, 20 Internal R. E.
C, 145; U. S. vs. Devilin, 6 Blatchf., 71; and Section 53
of the Act of October 1, 1890, page 869, First Volume,
Supplement, which contains the statement that the tax
is due "on commencing any trade or business."

§ 357. Partnerships. — By Section 3234, it is provid-
ed that any number of persons doing business in co-
partnerships at one place shall be required to pay but one
special tax; and so under the authorities of United
States vs. Blab, 99 U. S., 228; and United States vs.
Davis, 37 Federal, 468, the dissolution of such partner-
ship, whereby one of two partners who has paid drops
out, and the remaining member of the firm conducts the
business, a new license is not necessary. If, however,
a new partner buys into the business, a new tax must be
paid.

§ 358. Must Exhibit Stamp.— Section 3239 of the Re-
vised Statutes reads as follows:

"Sec. 3239. Every person engaged in any business, avocation, or
employment, who is thereby made liable to a special tax, except tobac-
co peddlers, shall place and keep conspicuously in his establishment
and place of business all stamps denoting the payment of said special
tax; and any person who shall, through negligence, fail to so place
and keep said (stamp) (stamps), shall be liable to a penalty equal
to the special tax for which his business rendered him liable, and

572 Federal Criminal Law Procedure.

the costs of prosecution; but in no case shall said penalty be less
than ten dollars. And where the failure to comply with the foregoing
provision of law shall be through wilful neglect or refusal, then the
penalty shall be double the amount above prescribed: Provided, That
nothing in this section shall in any way affect the liability of any
person for exercising or carrying on any trade, business, or profession,
or doing any act for the exercising, carrying on, or doing of which
a special tax is imposed by law, without the payment thereof."

§ 359. Rectifiers, Liquor Dealers, Etc., Carrying on
Business Without Paying Special Tax, Etc. — Old Sec-
tion 3242 of the Revised Statutes becomes by the Act of
March 3, 1883, page 60, First Volume Supplement, Sec-
tion 16, which provides punishments for those who carry
on the business of a rectifier, wholesale liquor dealer,
retail liquor dealer, wholesale liquor dealer in malt liq-
uors, retail dealer in malt liquors, or, manufacturer
of stills, in the following language:

"Sec. 16. That any person who shall carry on the business of a
rectifier, wholesale liquor dealer, retail liquor dealer, wholesale dealer
in malt liquors, retail dealer in malt liquors, or manufacturer of stills,
without having paid the special tax as required by law, or who shall
carry on the business of a distiller without having given bond as
required by law, or who shall engage in or carry on the business of
a distiller with intent to defraud the United States of the tax on the
spirits distilled by him, or any part thereof, shall, for every such
offense, be fined not less than one hundred dollars nor more than five
thousand dollars and imprisoned not less than thirty days nor more
than two years."

The use of the word "business" in the statute, of
course, requires its use in the indictment and proof in
the testimony. It is not the making of a sale that the
statute denounces, because one may carry on the busi-
ness without ever making a sale. So, also, one may
make a sale without carrying on the business. The safe
criterion is the Ledbetter decision, 170 U. S., 608; 42
Law Ed., 1162, which approves the opinion of United
States vs. Jackson, 1 Hughes, 531, and United States
vs. Rennecke, 38 Federal, 847, to the effect that,

"While it has been sometimes held that proof of sale to one per-
son was at leas* prima facie evidence of criminality, the real offense
consists in carrying on such business; and if only a single sale were

Internal Revenue. 573

proved, it might be a good defense to show that such sale was ex-
ceptional, accidental, or made under such circumstances as to in-
dicate that it was not the business of the offender.''

An indictment under this section should allege the
carrying on of the business, the day on which it was
carried 'on, the town, country, and district in which it
was carried on. A form of indictment will be found
herein.

§ 359a. Indictment. — Under the authority of Hodge
vs. U. S., 191 Federal, 165, the Circuit Court of Appeals
for the Eighth Circuit, an indictment which charged
directly and succinctly that on a given day at a special
place, within the jurisdiction of the trial Court, the de-
fendant did wilfully, unlawfully and feloniously carry
on the business of a retail liquor dealer without having
paid the special tax therefor as required by law, was un-
questionably good.

Sec. 359b. Liquor Dealers, etc., Continued.

See section 1100.

The internal revenue statutes were not repealed by
the National Prohibition Act unless unconstitutional or
unless punishments differ, etc., U. S. vs. Sohm, 265 F.
910; Pinasco vs. U. S., 262 F. 400.

Decisions to the contrary are U. S. vs. Fortman, 268
F. 873; Farley vs. U. S., 269 F. 721.

For other decisions concerning this statute see, Bill-
iard vs. U. S., 245 F. 837; U. S. vs. Lazzaro, 255 F. 237;
Day vs. U. S., 229 F. 534; Bailey vs. U. S., 259 F. 88.

§ 360. C. O. D. Decisions.— The case in the 23 Fed-
eral, page 134, and the case in the 26 Federal, 515, each
of which holds that in shipments of liquor, C. O. D.,
the shipper is a dealer at the place of destination, are
not the law. By the ranking and best line of authorities,
the sale takes place at the point where the specific quan-
tity is segregated from the mass; and as this takes place
at the point from which the liquor is shipped, the author-
ities are that the sale takes place there, and that is, there-
fore, the place where the license should be paid.

In United States vs. Chevallier, 107 Federal, 434, the
Circuit Court of Appeals for the Ninth Circuit in a case
where the defendant was a wholesale liquor dealer in

574 Federal Criminal Law Procedure.

San Francisco, who maintained a branch house in Port-
land, bearing his sign, and where, presumably, samples
of his trade were kept, and where the public were in-
vited to purchase, the manager of which place was a
salesman, required to sell judiciously, the right to cancel
his contracts being reserved to his principal, who filled
all orders, and without prepaying the freight, deliver-
ed the goods to a carrier at San Francisco, consigned
to purchasers in various parts of the agent's territory;
held, that the sales were made wholly at San Francisco,
notwithstanding the agent may have been authorized
to make binding contracts and collect the purchase
money, and that the defendant was not subject to the
internal revenue tax as an Oregon dealer, even though
his method of transacting business may have been de-
vised purposely to evade such tax.

In United States vs. Adams Express Company, 119
Federal, 240, an express company was charged with be-
ing a retail liquor dealer on a state of facts which show-
ed that it, as a common carrier, received liquors from
liquor companies, and carried them to the consignee,
receiving the money, which it transported to the liquor
company. The Court held that the title to the liquors
passed to the consignee on delivery to the express com-
pany, and that the company acted as the vendee in carry-
ing the liquor and as agent of the vendor in collecting
the money, and was not therefore a dealer. In this case,
Judge McPherson reviews the authorities known as the
C. 0. D. decisions, and holds as first indicated. U. S.
Sup. Court, May 13, 1907, in Adams Express Company
vs. Ky., holds State law making C. 0. D. sale at delivery
point, unconstitutional.

In Burk vs. Piatt, 172 Federal, 777, the Court held ex-
press companies can make reasonable regulations refus-
ing C. 0. D. shipments. See also Jones vs. United
States, 170 Federal, page 1; U. S. vs. Lackey, 120 Fed-
eral, 57; American Express Company vs. Iowa, 196 U.
S., 133; O'Neil vs. Vermont, 144 U. S.; and U. S. vs.
Parker, 121 U. S., 596.

§ 360a. Delivery to Customer. — One who has paid a
special tax entitling him to retail liquor at his regular

Inteenal Revenue. 575

place of business does not violate Section 3242, which
is new Section 16, by delivering liquor to a customer at
the latter 's residence, although the sale be completed
there. The Court held in substance that it might be true
that the title to the liquor did not actually pass to the
purchaser until the delivery and payment were made at
the boarding house, but this legal incident of the transac-
tion did not change the place for carrying on the business
from the drug store, where the supply was kept and
where orders were received, to the boarding house, or
place of delivery. Section 16, old Section 3242, when
read in connection with 3239 which requires a liquor deal-
er to place and keep conspicuously in his establishment
or place of business all stamps denoting the payment of
the special tax required of him, contemplates that the
retail liquor dealer may carry on business under one
license, or by virtue of paying one special tax, only at
one place at one time. Benbrook vs. U. S., 186 Federal,
153.

Sec. 360b. C. 0. D. Decisions Continued.

A tax on C. 0. D. shipments by a state, if on interstate
shipments, is unconstitutional, Rosenberg vs. Pacific
Express Company, U. S. Sup. Ct. October Term, Apr.
1915.

§ 361. Fact Cases. — In United States vs. Allen, 38
Federal, 736, the facts showed that the defendant was en-
gaged in procuring and furnishing to anyone who would
patronize him, liquors in quantities less than five gallons.
He testified that he received orders, requiring the per-
son ordering to pay ten cents down for a bottle of beer,
and when the beer was delivered, an extra fifteen cents
as remuneration for going to neighboring State to pro-
cure it ; but the evidence failed to show that the defendant
bought specific quantities of liquor to correspond with
special orders, but showed that he bought beer by the
case, and paid for it, and sold it to anyone desiring it.
Held, that the defendant was a dealer under this section.
(Syllabus.)

In United States vs. Woods, 28 Federal Cases No. 16759,
it was held that a club formed for the purpose of social
amusement, owning spiritous liquors, keeping them for

576 Fedekal Criminal Law Procedure.

use by the members of the club, who were entitled to such
use upon payment to the janitor, which money went into
the treasury of the Club, the janitor was held to be a
retail dealer. So, also, in United States vs. Alexis Club,
98 Federal, 725, it was held that a culb organized for
social purposes was liable to the payment of special tax
as retail dealer, when it sold drinks to its members. See
also United States vs. Rolinger, 27 Federal Case No.
16190a. Neither can a physician supply spiritous liquors
to his patients. United States vs. Smith, 45 Federal,
115. To the contrary would be the case of United States
vs. Calhoun, 39 Federal Reporter, 604, which decided that
an apothecary who uses spiritous liquors in a bona fide
way, exclusively in the preparation of making up medi-
cines, would not be subject to the tax. A druggist, how-
ever, under the authority of United States vs. White, 42
Federal, 138, is to be weighed by the scales of good faith,
to ascertain whether he is using intoxicants solely for the
compounding of medicines. A clerk or hired servant,
not acting for himself, but as an employee of another,
will not be convicted. United States vs. White, 42 Fed-
eral, 138; United States vs. Logan, 26 Federal Cases No.
15624. In Quinn vs. Diamond, 72 Federal, 993, commis-
sion merchants who made a commission upon sales of
liquors were held to be dealers. In United States vs.
Morfew, 136 Federal, 491, the Court held that a druggist
who sold a medicinal preparation which contained more
alcohol than was necessary to preserve the medicinal
properties of the drugs therein contained, became liable
to the payment of the tax as a retail liquor dealer.

In United States vs. Lewis, decided June '21, 1904, the
Court determined that it was not necessary to make one a
liquor dealer, that the beverage should be intoxicating.
Hop ale is also included in the term of the statute specify-
ing malt-liquor dealers. For decisions with reference to
proprietary medicines, such as Digg's Appetizer, Lemon
Ginger, and tonics, see United States vs. Bray, 113 Fed-
eral, 1009; United States vs. Starnes, 37 Federal, 665;
United States vs. Stubblefield, 40 Federal, 454; United
vs. Cota, 17 Federal, 734. In South Carolina vs. United
States, decided by the Supreme Court on December 5,

Internal Revenue. 5 J 7

1905, it was held that even a State must pay this Federal
tax.

§ 362. Proof of License. — Under the authority of Mor-
ris vs. United States, 161 Federal, 672, the prosecution
makes out its case by proving that the defendant carried
on the business at a certain time and place; the payment
of tax being a matter of defense, which, if relied upon,
must be proved by the defendant.

Sec. 362a. Proof of License Continued.

The proof concerning the possession of a federal license
need not be made by the government, since it is a matter
particularly within the knowledge of the defendant,
Faraone vs. U. S. 259 F. 507.

§ 363. Distiller Defrauding or Attempting to De-
fraud the United States of Tax on Spirits. — Section 3257
of the Revised Statutes is in the following words:

"Sec. 3257. Whenever any person engaged in carrying on the
business of a distiller defrauds or attempts to defraud the United
States of the tax on the spirits distilled by him, or of any part thereof,
he shall forfeit the distillery and distilling apparatus used by him,
and all distilled spirits and all raw materials for the production of
distilled spirits found in the distillery- and on the distillery premises,
and shall be fined not less than five hundred dollars nor more than
five thousand dollars, and be imprisoned not less than six months nor
more than three years."

•

The Court held, in United States vs. Ridnour, 119 Fed-
eral, 401, that the Act establishing bonded warehouses,
dated March 3, 1877, 19 Statute at Large, 393, did not
repeal this section. This same case also held that apple
brandy was included in the general terms "distilled
spirits."

The intent to defraud must exist before there can be
an offense under this section. United States vs. 100
Barrels of Spirits, 2 Abbott, 305. See other cases,- Dob-
bin's Distillery vs. United States, 96 U. S. 395; United
States vs. Three Copper Stills, 47 Federal, 495. On the
authority of Coffee vs. United States, 116 U. S., 44."),
29 Law Ed., 684, a judgment of acquittal in a criminal
prosecution for violation of this section is conclusive in
favor of the defendant as claimant of the property in-
volved in a subsequent suit in rem under the latter part

578 Federal Criminal Law Procedure.

of the statute. See also 109 Barrels of Whiskey vs.
United States, 94 U. S., 86; United States vs. Cushman,
1 Low., 414.

Sec. 363 a. Distilleries, etc., Continued.

Illicit distillery acts were repealed by the rjrohibi-
tion act, U. S. vs. Yuggini, 266 F. 746. See also 274 F.—

See section 3258 E. S. U. S. as to penalty and punish-
ment, U. S. vs. Buckingham, 261 F. 418.

§ 364. Breaking Locks; Gaining Access to Cistern,
Etc., Penalty. — Section 3268 of the Eevised Statutes reads
as follows:

"Sec. 3268. Every person who destroys, breaks, injuries, or tampers
with any lock or seal which may be placed on any cistern-room or
building by the duly authorized officers of the revenue, or opens said
lock or seal, or the door to said cistern-room or building, or in any
manner gains access to the contents therein, in the absence of the
proper officer, shall be fined not less than five hundred dollars nor more
than five thousand dollars, and be imprisoned not less than one year
nor more than three years."

In Pilcher vs. United States, 113 Federal, 248, the
Circuit Court of Appeals for the Fifth Circuit held that
an acquittal of a defendant for a violation of Section
3296 of the Revised Statutes did not preclude prosecu-
tion under this statute.

§ 365. Signs to be Put Up by Distillers and Dealers,
and Other Regulations. — Section 3279 of the old Stat-
utes requires that distillers and wholesale dealers shall
keep on the outside of the place of such business a sign
carrying the name of the firm and other information.

Section 3280 provides that the distiller shall not carry
on business until the law is complied with.

Section 3281 provides for the giving of bond and a
criminal punishment if this is not done.

In Terry vs. United States, 120 Federal, 483, the Cir-
cuit Court of Appeals for the Fourth Circuit held that
an indictment for unlawfully and knowingly carrying
and delivering raw material to a distillery was insuf-
ficient if it failed to state that such distillery was not
for the production of spirits, and was also insufficient
if it did not set forth the kind of raw material which was
furnished.

Internal Revenue. 579

Section 3296 denounces the removal, concealment, etc.,
of spirits contrary to law, and fixes a penalty. The case
of Pilcher vs. United States, 113 Federal, 248, was a case
decided under that section

§ 365a. Concealment, Etc — An indictment under
Section 3296 is sufficient if it charges each element of
the crime enumerated in the statute, and substantially
in the same language and it need not aver that the re-
moval of the spirits was with intent to defraud the
United States. Rosenfeld vs. U. S., 202 Federal, 469.

§ 366. Books to be Kept by Rectifiers and Whole-
sale Dealers; Penalty. — Section 3318 of the Revised
Statutes provides as follows:

"Sec. 3318. Every rectifier and wholesale liquor dealer shall pro-
vide a book, to be prepared and kept in such form as may be pre-
scribed by the Commissioner of Internal Revenue, and shall, on the
same day on which he receives any foreign or domestic spirits, and
before he draws off any part thereof, or adds water or anything there-
to, or in any respect alters the same, enter in such book and in the
proper columns respectively prepared for the purpose, the date when,
the name of the person or firm from whom, and the place whence the
spirits were received, by whom distilled, rectified, or compounded,
and when and by whom inspected, and, if in the original package, the
serial number of each package, the number of wine-gallons and proof-
gallons, the kind of spirit and the number and kind of adhesive stamps
thereon. And every such rectifier and wholesale dealer shall, at the
time of sending out of his stock or possession any spirits, and be-
fore the same are removed from his premises, enter in like manner
in the said book the day when and the name and place of business or*
the person or firm to whom such spirits are to be sent, the quantity
and kind or quantity of such spirits, the number of gallons and frac-
tions of a gallon at proof; and, if in the original packages in which
they were received, the name of the distiller and the serial number
of the package. Every such book shall be at all times kept in some
public or open place on the premises of such rectifier or wholesale
dealer for inspection, and any revenue officer may examine it and
take an abstract therefrom; and when it has been filled up as afore-
said, it shall be preserved by such rectifier or wholesale liquor dealer
for a period not less than two years; and during such time it shall
be produced by him to every revenue officer demanding it. And when-
ever any rectifier or wholesale liquor dealer refuses or neglects to
provide such book, or to make entries therein as aforesaid, or cancels,
alters, obliterates, or destroys any part of such book, or any entry
[therein] [therein], or makes such false entry therein, or hinders or
obstructs such revenue officer from examining such book, or making

580 Federal Criminal Law Procedure.

any entry therein, or taking any abstract therefrom; or whenever
such book is not preserved or is not produced by any rectifier or
wholesale liquor dealer as hereinbefore directed, he shall pay a
penalty of one hundred dollars, and shall [on conviction] be fined not
less than one hundred dollars nor more than five thousand dollars,
and imprisoned not less than three months nor more than three
years."

In the case of Williams vs. United States, 158 Federal,
30, the Circuit Court of Appeals for the Eighth Circuit
held that an indictment under this section need not set
out the quantity of spirits which were sent out without
being recorded in the book provided for in the statute,
because the quantity sent out was not the essential ele-
ment, and, therefore, an indictment charging that the
defendant, a wholesale liquor dealer, sent out of his
stock two casks of distilled spirits, without making any
required entries, was not fatally defective in failing to
specify the quantity shipped. Neither need the indict-
ment specify the name of the consignee or the place
where the casks were sent.

In the cases of United States vs. Amann, 24 Federal
Case No. 14438, a quantity of distilled spirits, 3 Ben.,
552, it was determined in substance, that if it was a mere
accidental omission to enter in the record, the defendant
should not be convicted, but that the defendants were
responsible for the action of their clerks and bookkeep-
ers, and that they were bound to see that their duties
with reference to these entries was fully and properly
performed; and if, through the neglect or carelessness
of the employee, it was not performed, the employer
was responsible. See also United States vs. 1412 Gallons
of Spirits, 10 Blatchf., 428.

§ 367. Stamps and Brands to be Effaced from Empty
Casks. — Section 3324 of the Revised Statutes provides
as follows:

"Sec. 3324. Every person who empties or draws off, or causes to
be emptied or drawn off, any distilled spirits from a cask or package
bearing any mark, brand, or stamp required by law, shall at the
time of emptying such cask or package, efface and obliterate said
mark, stamp, or brand. Every such cask or package from which
said mark, brand, or stamp is not effaced and obliterated, as herein
required, shall be forfeited to the United States, and may be seized

Internal Revenue. 581

by any officer of internal revenue wherever found. And every rail-
road company or other transportation company, or person who re-
ceives or transports, or has in possession with intent to transport, or
with intent to cause or procure to be transported, any such empty
cask or package, or any part thereof, having thereon any brand, mark,
or stamp, required by law to be placed on any cask or package, or
any part thereof, so received or transported, or had in possession
with the intent aforesaid; and every boat, railroad car, cart, dray,
wagon, or other vehicle, and all horses or other animals used in
carrying or transporting the same, shall be forfeited to the United
States. Every person who fails to efface and obliterate said mark,
stamp, or brand, at the time of emptying such cask or package, or
who receives any such cask or package, or any part thereof, with the
intent aforesaid, or who transports the same, or knowingly aids or
assists therein, or who removes any stamp provided by law from any
cask or package containing, or which had contained, distilled spirits,
without defacing and destroying the same at the time of such removal,
or who aids or assists therein, or who has in his possession any such
stamp so removed as aforesaid, or has in his possession any cancelled
stamp, or any stamp which has been used, or which purports to have
been used, upon any package of distilled spirits, shall be deemed
guilty of a felony, and shall be fined not less than five hundred dol-
lars nor more than ten thousand dollars, and imprisoned not less
than one year nor more than five years."

There are no words expressing intention with refer-
ence to this offense in this section, and under the author-
ity of United States vs. Gallant, 177 Federal, 281, an
inadvertent and negligent omission to do the things
demanded by the section is an offense.

§ 368. Re-use of Bottles, Etc., Without Removing
and Destroying Stamps. — The Act of March 3, 1897,
29 Statute at Large, 627, Section 6, provides as follows:

"Sec. 6. That any person who shall re-use any stamp provided
under this Act after the same shall have been once affixed to a bottle
as provided herein, or who shall re-use a bottle for the purpose of
containing distilled spirits which has once been filled and stamped
under the provisions of this Act without removing and destroying the
stamp so previously affixed to such bottle, or who shall, contrary to
the provisions of this Act or the regulations issued thereunder re-
move or cause to be removed from any bonded warehouse any dis-
tilled spirits inspected or bottled under the provisions of this Act, or
who shall bottle or case any spirits in violation of this Act, or of any
regulation issued thereunder, or who shall, during the transportation
and before the exportation of any such spirits, open or cause to be
opened, any case or bottle containing such spirits, or who shall wil-
fully remove, change or deface any stamp, brand, label, or seal affixed

582 Federal Criminal Law Procedure.

to any such case or to any bottle contained therein, shall for each
such offense be fined not less than one hundred nor more than one
thousand dollars, and be imprisoned not more than two years, in the
discretion of the court, and such spirits shall be forfeited to the
United States."

In United States vs. Guthrie, 171 Federal 528, the fol-
lowing points with reference to the above statute were
determined:

First. The offense is complete if the bottle is re-used
without destroying the stamps, and does not depend on
its being done knowingly and wilfully.

Second. The employer is guilty if the act is perform-
ed by his bartender or agent acting within the scope of
his employment.

§ 368 a. Must Be Evidence of Refilling. — A convic-
tion cannot be had under Section 6 without some evi-
dence of refilling or of procuring such refilling. Duff
vs. U. S., 185 Federal, 101.

§ 369. Removing any Liquors or Wines Under any
Other than Trade Names; Penalty. — Section 3449 of the
Revised Statutes reads as follows:

"Sec. 3449. Whenever any person ships, transports, or removes
any spirituous or fermented liquors or wines, under any other than
the proper name or brand known to the trade as designating the kind
and quality of the contents of the casks or packages containing the
same, or causes such act to be done, he shall forfeit said liquors or
wines, and casks or packages, and be subject to pay a fine of five
hundred dollars."

In United States vs. Twenty Casks, etc., 133 Federal,
910, the Court held that this section did not apply to a
cask shipped without a label, nor does it apply when the
cask was labeled, "Glass: with care," etc. In United
States vs. Liquor Dealers' Supply Company, 156 Federal,
219, the Court held that spirituous liquors under this
section contained in bottles and packed in barrels and

shipped, the barrels being marked " " is a

violation of this section, and also that prosecutions
under this section contained no questions of fraud or
fraudulent intent. This case was a case of the indict-
ment of a corporation for a violation of this section.

Internal Revenue. 583

See also United States vs. Sandefulir, 145 Federal, page
849.

This statute lias been held not to apply to private per- '
sons, but only to distillers and dealers.

Sec. 369 a. Removal, etc., of Liquor Continued.

Section 3296, R. S. U. S. concerned with the removal
of liquors was repealed by the Volstead Act, Reed vs.
Thurmond, 269 F. 252.

§ 370. Oleomargarine.— The Act of August 2, 1886,
24 Statute at Large, 209, is what is known as the Oleo-
margarine Act, and contains a definition of butter and
oleomargarine.

Section 3 of the Act provides a schedule of special
taxes upon manufacturers of six hundred dollars, whole-
sale dealers of four hundred eighty dollars, and retail
dealers of forty-eight dollars. The manufacturer is any
person who manufactures oleomargarine for sale, and
also any person who mixes with oleomargarine any arti-
ficial coloration. A wholesale dealer is any person who
sells or offers for sale oleomargarine in the original
manufacturer's packages; and the retailer is any per-
son who sells oleomargarine in quantities of less than
ten pounds at one time.

Section 4 of the Act provides the penalties for the
carrying on of the business without the payment of the
tax; that is if the manufacturer carries on his business
without the payment of his special tax, he shall be fined
not less than one thousand and not more than five thou-
sand dollars; the person who carries on the business of
a wholesale dealer without paying the special tax, be-
sides being liable to the payment of the tax, shall be
fined not less than five hundred, nor more than two
thousand dollars; and every person who carries on the
business of a retail dealer without paying the special
tax, shall, besides being liable for the tax, be fined not
less than fifty, nor more than five hundred dollars.

Section 6 regulates packing and marking oleomarga-
rine, and provides the penalty, and reads as follows:

"Sec. 6. That all oleomargarine shall be packed by the manufactur-
er thereof in firkins, tubs, or other wooden packages not before used
for that purpose, each containing not less than ten pounds, and mark-

584 Federal Criminal Law Procedure.

ed, stamped, and branded as the Commissioner of Internal Revenue,
with the approval of the Secretary of the Treasury, shall prescribe;
and all sales made by manufacturers of oleomargarine, and wholesale
dealers in oleomargarine shall be in original stamped packages.
Retail dealers in oleomargarine must sell only from original stamped
packages, in quantities not exceeding ten pounds, and shall pack the
oleomargarine sold by them in suitable wooden or paper packages,
which shall be marked and branded as the Commissioner of Internal
Revenue, with the approval of the Secretary of the Treasury, shall
prescribe. Every person who knowingly sells or offers for sale, or
delivers or offers to deliver, any oleomargarine in any other form
than in new wooden or paper packages as above described, or who
packs in any package any oleomargarine in any manner contrary to
law, or who falsely brands any package or affixes a stamp on any pack-
age denoting a less amount of tax than that required by law, shall
be fined for each offense not more than one thousand dollars, and be
imprisoned not more than two years."

Section 6, above quoted, has been declared to be Con-
stitutional in in re Kollock, 165 U. S., 536; 41 Law Ed.,
813, and Dougherty vs. United States, 108 Federal, 56,
which affirmed U. S. vs. Dougherty, 101 Federal, 439,
upon the reasoning that the Act does not continue a
delegation of power to the Commissioner of Internal
Revenue and the Secretary of the Treasury to determine
what act shall be criminal, but the Act itself sufficiently
defines the offense, by requiring the packages to be
marked and branded, and the punishment therefor, leav-
ing the mere discretion of the particular marks, stamps,
and brands to be determined by the officers aforesaid.
The Supreme Court, in the Kollock case, said that the
primary object of oleomargarine legislation was to secure
revenue by internal taxation, and to prevent fraud in the
collection of such revenue.

In the case of Hipper vs. United States, 178 Federal,
page 24, the Circuit Court of Appeals held that evidence
secured by the unlawful issuance of a search warrant,
which was itself relevant was not inadmissible because
obtained by such illegal search and seizure; and that
same case held that in order to constitute the offense
of neglect or refusal to destroy the stamp from the
emptied oleomargarine package, it need only appear
that the package had a stamp on it denoting the payment

Internal Revenue. 585

of the tax; that it was emptied of its contents; that it
was in defendant's possession in its emptied condition;
and that he wilfully neglected or refused to destroy the
stamp while the empty package was in his possession.

That same case also reasoned that the Act authorized
three classes of persons to conduct the business of manu-
facturing and selling oleomargarine; namely, the manu-
facturer, the wholesale dealer, and the retail dealer; and
that Section 6 declares that retail dealers must sell only
from original stamped packages, in quantities not ex-
ceeding ten pounds, and that the restriction on retail
dealers violates no Constitutional right, and that per-
sons selling oleomargarine at retail in original packages
in quantities greater than ten pounds at any one time are
violators of the law, and do not form a class outside of
its provisions.

In this case, the Court also held that the penalty pro-
vided in Section 6 does not apply to that part of the
section prohibiting retail dealers from selling in quanti-
ties exceeding ten pounds, such offense being subject
to punishment by a fine of a thousand dollars, without
imprisonment, as prescribed by Section 18 of the Act,
which reads as follows:

"Sec. 18. That if any manufacturer of oleomargarine, any dealer
therein, or any importer or exporter thereof shall knowingly and wil-
fully omit, neglect, or refuse to do, or cause to be done, any of the
things required by law in the carrying on or conducting of his bus-
iness, or shall do anything by this act prohibited, if there be no
specific penalty or punishment imposed by any other section of this
act for the neglecting, omitting, or refusing to do, or for the doing or
causing to be done, the thing required or prohibited, he shall pay a
penalty of one thousand dollars; and if the person so offending be
the manufacturer or a wholesale, dealer in oleomargarine, all the
oleomargarine owned by him, or in which he has any interest as
owner, shall be forfeited to the United States."

In Dougherty vs. United States, 108 Federal, 56, the
Court of Appeals for the Third Circuit, in passing upon
the case originating under Section 6 of the Act, said
that the section first requires manufacturers to pack
oleomargarine in new wooden or paper packages, mark-
ed, stamped, and branded as prescribed; and sales by

586 Federal Criminal, Law Procedure.

manufacturers and wholesale dealers are also required
to be "in original stamped packages." Thereafter, it
provides that they shall pack it "in suitable wooden or
paper packages, marked and branded as prescribed."
The penal clause thereof provides that every person
who knowingly sells oleomargarine otherwise than in
new wooden or paper packages as above described, shall
be fined, and held that such clause applied to retail deal-
ers as well as others.

The Court also passed upon the form of an indictment.

A new indictment, in conformity with the ruling of
the Court in United States vs. Lockwood, 164 Federal,
772, was found, and a conviction resulted, which con-
viction was affirmed in Lockwood vs. United States, 178
Federal, 437, wherein the Court re-affirmed the Con-
stitutionlity of the Act. In the Lockwood case, 164
Federal, 772, it was held that when the indictment was
for selling in packages that were not as prescribed by
the Commissioner of Internal Eevenue, the particular
in which such packages did not conform therewith should
be set out in the indictment. The regulations of the
Commissioners provide that retail packages must have
the name and address of the dealer printed or branded'
thereon; likewise, the words "pound" and "oleomarga-
rine" in letters not less than one quarter of an inch
square, so as to be plainly visible to the purchaser at
the time of delivery to him, and the color of the ink
must be in the strongest contrast to the color of the
packages.

In Wesoky vs. United States, 175 Federal, 333, the
Circuit Court of Appeals for the Third Circuit passed
upon certain evidence that was admitted, and holds
the rulings of the trial judge not erroneous, in an oleo-
margarine prosecution. In this case it was held, follow-
ing Graves vs. United States, 105 U. S., 121, 37 Law
Ed., 1021, that the wife of a defendant indicted in a
Federal Court, is not a competent witness.

In United States vs. Lamson, 173 Federal, 673, the
Court held that the Oleomargarine Act, which provides
that wholesale dealers shall keep such books and render
such returns as the Internal Revenue Commissioner may

Internal Eevenue. 587

require, did not limit the power of the commissioner to
the sole making of regulations requiring the returns; but
he was authorized thereunder to adopt regulations re-
quiring such dealers to make monthly returns, showing
the packages and pounds received, quantity disposed
of, and the names and addresses of the consignees, and
that such regulation was reasonable, and when such
names were fictitious and erroneous, there was a viola-
tion of the regulation.

In United States vs. Union Supply Company, the Su-
preme Court of the United States, in an opinion ren-
dered November 8, 1909, held that a corporation was a
person, within the meaning of Section 6 of the Act of
May 9, 1902, 32 Stat. L., 193, which required wholesale
dealers in oleomargarine to keep certain books and make
certain returns, and this although Section 5 of the same
Act applies in express terms to corporations. In Ver-
mont vs. United States, 174 Federal, 729, the Circuit
Court of Appeals for the Eighth Circuit held that the
term "any person" in the Act of 1886, as amended by
the Act of May 9, 1902, is not limited to licensed whole-
sale or retail dealers, but is comprehensive enough to
embrace all persons, whether licensed dealers or not.
This case also affirms the doctrine heretofore mentioned
with reference to elements of that portion of the Act
relating to the destruction of stamps.

In United States vs. Joyce, 138 Federal, 455, the Court
held that that portion of the Act of 1886 relating to the
payment of tax by wholesale dealers, might be prosecut-
ed by either information or indictment. A form of in-
dictment is also approved in that case for wholesale
dealers who do not pay the tax.

In United States vs. Ford, 50 Federal, 467, the Court
held that an indictment under Section 6 for neglect to
properly mark the package of oleomargarine should set
out the regulation of the commissioner covering the
marks and brands in substance.

In apparent contradiction of Vermont vs. United
States, 174 Federal, cited supra, seems to be the case of
Morris vs. United States, 168 Federal, 682. In the Mor-
ris case, the Circuit Court of Appeals for the Eighth

588 Federal Criminal Law Procedure.

Circuit, in passing upon Section 6 of the Act of 1886,
and referring to the words "every person" should be con-
strued to refer solely to manufacturers and dealers pre-
viously therein mentioned, so that an indictment for
violating such section which fails to charge that the
accused was either a manufacturer or dealer in oleomar-
garine would state no offense. The safe rule, therefore,
is to allege that the defendant is either a manufacturer
or a wholesale or retail dealer, and that the facts of
each prosecution will substantiate the allegation; other-
wise, there should be no prosecution.

Prosecution for sale and delivery, though different of-
fenses, if same transaction, may be under different counts
in same indictment, Goll vs. U. S., 166 F., 419.

In U. S. vs. Eaton, 144 U. S., 688, 36 Law Ed., 591,
Section 18 of Act requiring certain reports and books
by wholesale dealers was held inoperative.

§ 370 a. Oleomargarine — Indictment. — Enders vs. U.
S., 1887 Federal, 754; May vs. U. S., 199 Federal, 42;
Hart vs. U. S., 183 Federal, 368.

Sec. 370 b. Artificial Coloring of Butter.

For decisions with reference to this violation see Til-
lingast vs. Richards, 233 F. 7 JO; U. S. vs. Or. 233 F. 717.

CHAPTER XVIII.

.NATIONAL BANKS.

§ 371. General Provisions.
371a. Federal Reserve Bank.
371b. Aiding and Abetting.

372. Falsely Certifying Checks.

373. Wilfully.

374. Acting by Others.

374a. Acting by Another Continued.

374b. Heinze Case.

375. Embezzlement, Abstraction, Misapplication, False Entries,

Etc. — Penalty.
375a. Misapplication and Other Cases.
375aa. New sec. 5209.
375b. False Entries, Mistakenly Made.
375bb. Decisions Under sec. 5209.
37C. Abstraction.

377. Misapplication.

377a. Cases of Misapplication and Indictment.
377b. Indictment Duplicitous. When.

378. False Entries.

378a. False Entries and False Reports Continued.
378b. Admission of Books.

379. Other Cases.

379a. Federal Reserve Act — Decisions and Acts.

§ 371. Any number of persons not less than five may
form an association for the purpose of conducting a
national bank. The Articles of Association and organ-
ization certificate should state the name assumed, the
place where operations are to be carried on, the amount
of capital stock, and the number of shares thereof, the
names and residences of the share-holders, and the num-
ber of shares held by each. When these dockets are filed
with the Comptroller of the Currency, the association
becomes a body corporate, empowered to use a corporate
seal, have a life for twenty years, the right to make
contracts, to sue and to be sued, elect directors, and ap-
point other officers; to have by-laws which are not in-
consistent with the law for the conduct of the general
business, and the exercise of its national banking privi-
leges. No other bank, of course, is authorized to use

(589)

590 Federal Criminal Law Procedure.

the word "national" as a portion of its title. An as-
sociation may exist with or without power to use circula-
tion. To obtain circulation notes, an association must
deposit with the Comptroller of the United States bonds
as security for the redemption of such notes as it may
issue, whereby, within limits, notes of various denomina-
tions may be furnished by the Comptroller. The States
can exercise only such control over national banks as
Congress permits, Farmers' National Bank vs. Deering,
91 U. S., 33.

The sections in the Revised Statutes relating to the
organization and powers, etc., of national banks are from
5133 to 5156, inclusive. The sections in the Revised
Statutes relating to the obtaining and issuing of circulat-
ing notes are from 5757 to 5189, inclusive. The sections
relating to the regulation of the banking business are
from 5190 to 5219, inclusive. The sections relating to
dissolution and receivership are from 5220 to 5243, in-
clusive.

§ 371 a. Federal Reserve Bank.— By the Act of De-
cember 23, 1913, page 260, 1914 Supp. Fed. Stats. Ann.
Federal reserve banks were established in as many dis-
tricts as the Federal reserve board might consider neces-
sary, in accordance with which the Board established
eleven such banks. This legislation contained no pro-
visions which modify the scope or vitality of Section
5209 which has stood so long as the legal watchdog over
the integrity of the national bank system. Later, or to
wit, on August 15, 1914, the Act was amended as shown
at Section 9801 Federal Stats. Compiled. Such amend-
ment dealt largely with the matter of percentums of de-
posit to remain in the vaults of the national banks and
the authorization of the Federal reserve privilege to the
State bank. Section 22 of the parent Act created a
new misdemeanor by declaring that no bank nor any
officer, director or employee thereof shall make any loan
or grant any gratuity to any bank examiner, the penalty
for so doing being imprisonment not to exceed oe year or
a fine of not more than $5000 or both, and may be fined
a further sum equal to the amount of money so loaned
or gratuity so given. The section also provides for the

National Banks. 591

punishment of the bank examiner who accepts any such
favor, by the same penalty.

The same section also declares that any officer, direct-
or or employee of a member bank shall not receive any
compensation or gratuity whatsoever in any way in ad-
dition to his regular salary and that no examiner shall
disclose the names of borrowers or the collateral for loans
to other than the proper officers without first obtaining
written permission from the Comptroller of the Treas-
ury, unless ordered to do so by competent civil jurisdic-
tion, all of which acts are punished by a fine not exceed-
ing $5000 or by imprisonment not exceeding one year,
or both. See also Sec. 375aa for new 5209. .

§ 371 b. Aiding and Abetting. — The last paragraph
of Section 5209 provides for the punishment of such
persons as aid or abet any officer or clerk or agent in
the commission of any of the violations of that section,
provided such aiding or abetting is with the same intent
that the principal must have before he can be guilty
thereunder, to wit, the intent to injure or defraud the
persons or bodies therein enumerated, or to deceive the
persons therein enumerated. See Section 375.

For indictments and illustrations of prosecutions un-
der this paragraph of the section, see Hillegass vs. U. S.,
183 Federal, 200; Prettyman vs. U. S., 180 Federal, 30;
Keliher vs. U. S., 193 Federal, 8, in which it was decided
that aiding and abetting may be done by an officer of the
bank as well as by an outsider. To the same effect is
the case of Kettenbach vs. U. S., 202 Federal, 377.

§ 372. Falsely Certifying Checks.— Section 5208 of
the Revised Statutes of 1878, which reads as follows:

"Sec. 5208. It shall be unlawful for any officer, clerk, or agent of
any national banking association to certify any check drawn upon
the association unless the person or company drawing the check has
on deposit with the association, at the time such check is certified,
an amount of money equal to the amount specified in such check.
Any check so certified by duly authorized officers shall be a good and
valid obligation against the association; but the act of any officer,
clerk, or agent of any association, in violation of this section, shall
subject such bank to the liabilities and proceedings on the part of the
comptroller as provided for in Section fifty-two hundred and thirty-
four."

592 Federal Criminal Law Procedure.

relates to the penalty for falsely certifying checks. The
penalties of the section, it will be noted, are both against
the individual and against the association. The comp-
troller has the authority to place the association whose
officer is guilty of a violation of this section, in the hands
of a receiver, as provided in Section 5234.

This section includes four criminal offenses: first, the
wilful certification of checks drawn upon the association
by any person or company, unless such person or com-
pany has, at the time such check is certified, on deposit
with the association, an amount of money equal to the
amount specified in such check; second, the resorting
to any devise, in order to evade the provisions of the
of the section; third, the receipt of any fictitious obli-
gation, directly or collaterally, in order to evade the
provisions of the section; and fourth, the certifying of
checks before the amount shall have been regularly en-
tered to the credit of the dealer upon the books of the
association.

Anderson's Dictionary of Law, under the head of the
words "Certified Check," says it "implies that there
are funds in the bank with which to pay. it; that the
same are set apart for its satisfaction; and that they will
be so applied when the check is presented for payment. ' '

The act of certifying is equivalent to an acceptance of
the check. The object is to enable the holder to use
the check as money. The bank charges the check to the
account of the drawer; credits it in a certified check
account; and when paid, debits that account with the
amount. The bank thus becomes the debtor of the hold-
er, Merchants' Bank vs. The State Bank, 11 Wallace,
647; Espy vs Bank of Cincinnati, 18 Wallace, 619; Bank
vs. Whitman, 94 IT. S., 343; same case, 100 U. S., 689;
Bank of British North America, 91 N. Y., 110. It will
be borne in mind that the statute relates alone to
" check. ': Draft, or letter, or telegram, or any other
certificate that is not included in the technical and legal
term " check, ': is not included within the statute.

In Potter vs. United States, 155 U. S., 444; 39 Law Ed.,
216, the Supreme Court held that the word "certified,"
as commonly understood, implies that the check upon

National Banks. 593

which the words of certification have been written has
passed from the custody of the bank into the hands of
some other party; and when the charge is, that the de-
fendant "did unlawfully, knowingly," and wilfull}7 certify
a certain check," the import of that accusation is not
simply that he wrote certain words upon the face of the
check, but that he did it in such a manner as to create
an obligation of the bank, in such a way as to make an
instrument which can properly be called a certified
check.

Sec. 372 a. Falsely Certified Checks, Continued.

Section 5208 has been amended to read as follows : —

(R. S. *5208, as amended, Act Sept. 26, 1918, c— , *7.)
Falsely certifying checks; penalty; punishment.

It shall be unlawful for any officer, director, agent, or
employee of any Federal reserve bank, or of any member
bank as defined in the Act of December twenty-third,
nineteen hundred and thirteen, known as the Federal
reserve Act, to certify any check drawn upon such Fed-
eral reserve bank or member bank unless the person,
firm, or corporation drawing the check has on deposit
with such Federal reserve bank or member bank, at the
times such check is certified, an amount of money not
less than the amount specified in such check. Any check
so certified by a duly authorized officer, director, agent,
or employee shall be a good and valid obligation against
such Federal reserve bank or member bank; but the act
of any officer, director, agent, or employee of any such
Federal reserve bank or member bank in violation of this
section shall, in the discretion of the Federal Reserve
Board, subject such Federal reserve bank to the penalties
imposed by section eleven, subsection (h), of the Federal
reserve Act, and shall subject such member bank if a
national bank to the liabilities and proceedings on the
part of the Comptroller of the Currency provided for in
section fifty-two hundred and thirty-four, Revised Stat-
utes, and shall, in the discretion of the. Federal Reserve
Board, subject any other member bank to the penalties
imposed by section nine of said Federal reserve Act for
the violation of any of the provisions of said Act. Any
officer, director, agent, or employee of any Federal reserve

59-4 Federal Criminal Law Procedure.

bank or member bank who shall wilfully violate the
provisions of this section, or who shall resort to any
devise, or receive any fictitious obligation, directly or
collaterally, in order to evade the provisions thereof, or
who shall certify a check before the amount thereof shall
have been regularly entered to the credit of the drawer
upon the books of the bank, shall be deemed guilty of
a misdemeanor and shall, on conviction thereof in any
district court of the United States, be fined not more
than $5,000, or shall be imprisoned for not more than
five years, or both, in the discretion of the court.

§ 373. Wilfully.— The use of the word "wilfully" in
the statute implies on the part of the officer who commits
the offense, knowledge and purpose to do wrong. Some-
thing more is required than the act of certification made
in excess of the actual deposit but in ignorance of that
fact, but without a purpose to evade or disobey the man-
dates of the law. In Potter vs. United States, cited

supre, this language is used:

"The significance of the word "wilfully" in criminal statutes has
been considered by this Court. In Felton vs. United States, 96 U. S.,
699, 24 Law Ed., 875, it was said: 'Doing or omitting to do a thing
knowingly and wilfully implies not only knowledge of the thing; but
a determination, with a bad intent, to do it. The word 'wilful,' says
Chief Justice Shaw, in the ordinary sense in which it is used in
statutes, means not merely voluntary, but with a bad purpose, Com.
vs. Kneeland, 20 Pick, 220. It is frequently understood, says Bishop,
as signifying an evil intent without justifiable excuse, I. Bishop, as
signifying an evil intent and later, in the case of Evans vs. United
States, 153 U. S., 584, 38 Law Ed., 830, there was this reference to
the words 'wilfully misapplied': 'In fact the gravamen of the offense
consists in the evil design with which the misapplication is made,
and a count which should omit the words "wilfully, etc., and with

intent to defraud," would be clearly bad.' As wilful wrong

is of the essence of the accusation, testimony bearing directly on
the question of wilfulness is of vital importance, and error in re-
jecting it cannot be regarded otherwise than as material and mani-
festly prejudicial."

The original Potter case, which was treated in the writ
of error above, will be found in 56 Federal, page 93.
The Supreme Court, in Spurr vs. United States, 174 U.
S., 728, held that the trial judge, in answering a question

National Banks. 595

of the jury in a prosecution, under this section, when
tliev came in after consulation, and asked for the law
ing of ''wilful violation," when he was requested so to
as to certification when on money appeared to the credit
of the drawer, which answer failed to explain the mean-
do bv the defendant's counsel, was reversible error.

United States vs. Heinze, 161 Federal, 425, holds that
Section 5208 creates no criminal offense until read in con-
nection with Section 13 of the Act of July 12, 1882, 22
St. L., 166, Section 13 of said Act fixing the punishment.
Judge Hough, in the Heinze case, said that Courts were
bound to take judicial notice of the meaning of the word
"certified" as applied to bank checks, and that such
meaning was that certain words have been written or
printed on a check, and that the check has passed from
the custody of the bank into the hands of some other
party, and that thereby the person certifying created an
obligation of the bank. That case also held that an in-
dictment was not fatally defective for failure to set out
totidem verbis the written certifications under the rule
that in an indictment in Federal Courts it is not neces-
sary to allege the tenor of an instrument, unless it touches
the gist of the crime, such rule limiting, in the Federal
Courts, the setting out in full of the instrument main-
ly, if not wholly, to the cases of forgery, counterfeiting,
and sending threatening letters.

Sec. 373 a. Wilfully, Continued.

For further definitions of the word wilfully and know-
ingly see 252 F. 213 and Bentall vs. U. S., 262 F. 744.

§ 374. Acting by Others. — In the Heinze case, the
facts as alleged in the indictment were that the defend-
ant did not certify in the sense of personally signing the
certification stamped on the checks in question; and a
motion to quash was made upon the ground that, there-
fore, he personally could not be indicted under this sec-
tion. The Court answered this objection by stating that,
"The whole indictment taken together shows that the
first fifteen counts must fail unless the prosecution can
prove that the individuals who actually executed the
certification endorsed were but physical instruments
of the defendant in doing what was done; and that an

596 Federal Criminal Law Procedure.

indictment will lie for causing or procuring a coerced
subordinate to do the forbidden act, is distinctly held by
Judge Putnam in the Potter case."

§ 374 a. Acting by Another Continued. — The mak-
ing of false entries in the book of a national bank is
equally an offense whether it is done by the bank officer
charged, or whether he procures it to be done through
the medium of other, and where an indictment charged
an officer with making false entries, in that he caused
and procured them to be made, proof of either Of such
charges was sufficient after verdict to sustain a convic-
tion, even though the other was not proved. Richard-
son vs. U. S., 181 Federal, 1.

§ 374 b. Heinze Case.— In Sections 373 and 374, the
Heinze case in 161 Federal, 425, is mentioned. Indict-
ment was held sufficient by the Supreme Court of the
United States, and 161 Federal, 425, reversed in U. S.
vs. Heinze, 218 U. S. 532, and the Court held that a charge
in the indictment that a note for an amount was receiv-
ed for discount which was wholly unsecured, and which
sum was lost to the bank, amounts to a direct allegation
that the loss was caused by the discount,

§ 375. Embezzlement, Abstraction, Misapplication,
False Entries, Etc., Penalty. — By long odds, the most
important Federal statute for the preservation of the
people's property and the integrity of the national bank-
ing system, is Section 5209, which reads as follows:

i i

Sec. 5209. Every president,' director, cashier, teller, clerk, or
agent of any association, who embezzles, abstracts, "or wilfully mis-
applies, any of the moneys, funds, or credits of the association; or
who, without authority from the directors, issues or puts in circula-
tion any of the notes of the association; or who, without such au-
thority, issues or puts forth any certificate of deposit, draws any
order or bill of exchange, makes any acceptance, assigns any note,
bond, draft, bill of exchange, mortgage, judgment, or decree; or who
makes any false entry in any book, report, or statement of the as-
sociation, with intent, in either case, to injure or defraud the associa-
tion or any other company, body politic or corporate, or any individual
person, or to deceive any. officer of the association, or any agent ap-
pointed to examine the affairs of such association; and every per-
son who with like intent aids or abets any officer, clerk, or agent in
any violation of this section, shall be deemed guilty of a misdemeanor,
and shall be imprisoned not less than five years nor more than ten."

National Banks. 597

The statute, it will be noted, punishes every president
director, cashier, teller, clerk, or agent, who (1) embez-
zles, (2) abstracts, (3) wilfully misapplies, any of the
(1) moneys, (2) funds, or (3) credits, of the association
In other words, as stated by Terrell, in his book on na-
tional banking at page 13, the statute covers embezzle-
ment by the persons named, of any of the money, funds,
or credits of the association, provided such embezzle-
ment be with the intent to injure or defraud (1) the
association, (2) any other company, body politic or cor-
poriate, or (3) any individual person. The word "embez-
zle, ' ' as used in this statute, says Terrell, has well defined
technical meaning. It is the unlawful conversion, by
an officer of a bank, to his own use, of the moneys, funds,
or credits of the association entrusted to him, with the
intent to injure or defraud the bank, United States vs.
Youtzey, 91 Federal, 867. It involves a breach of trust
or duty in respect of the moneys, goods, or properties
entrusted to the party's possession, belonging to another,
and also the wrongful appropriation thereof to the
party's own use. Though kin to theft or larceny
embezzlement is a separate and distinct offense
In order to constitute this crime, it is necessary that the
property, money or personal effects embezzled should
have previously come lawfully into the hands, posses-
sion, or custody, of the party charged with such offense
and that while so entrusted to his possession and custo-
dy, and held for the use and benefit of the real owner,
he wrongfully converts the same to his own use, United
States vs. Harper, 33 Federal, 474. The Supreme Court,
in Moore vs. United States, 160 U. S., 269, defines em-
bezzlement to be "The fraudulent appropriation of prop-
erty, by a person to whom such property has been en-
trusted, or into whose hands it has lawfully come. Such
custody need not be actual, manual possession. United
States vs. Harper, 33 Federal, 475.

In United States vs. Northway, 120 U. S., 336; 30 Law
Ed., 664, the Court held in substance that the wilful
and criminal misapplication of the funds of a national
bank, as defined by this section, may be made by an offi-
cer or agent, without having previously received them

598 Federal Criminal Law Procedure.

into his manual possession. There is a distinction between
said offense and embezzlement. In the former it is unnec-
essary to charge possession in the indictment,' while in
the latter a charge of possession is required in describ-
ing the offense.

§ 375a. Misapplication and Other Cases. — Pearce vs.
U. S., 192 Federal, 561. In this case the discounting of
notes was the basis of the offense. Prettvman vs. U. S.,
180 Federal, 30.
Sec. 375. a. a. Embezzlement, etc., Continued.

Sec. 5209 was amended by the Act of September 26,
1918, to read as follows: —

"Any officer, director, agent, or employee of any Federal reserve
bank, or of any member bank as defined in the Act of December
twenty-third, nineteen hundred and thirteen, known as the Federal
reserve Act, who embezzles, abstracts, or wilfully misapplies any
of the moneys, funds, or credits of such Federal reserve bank or
member bank, or who, without authority from the directors of such
Federal reserve bank or member bank, issues or puts in circulation
any of the notes of such Federal reserve bank or member bank, or
who, without such authority, issues or puts forth any certificate of
deposit, draws any order or bill of exchange, makes any acceptance,
assigns any note, bond, draft, bill of exchange, mortgage, judgment,
or decree, or who makes any false entry in any book, report, or
statement of such Federal reserve bank or member bank, with in-
tent in any case to injure or defraud such Federal reserve bank or
member bank, or any other company, body politic or corporate, or
any individual person, or to deceive any officer of such Federal re-
serve bank or member bank, or the Comptroller of the Currency, or
any agent or examiner appointed to examine the affairs of such
Federal reserve bank or member bank, or the Federal Reserve
Board; and every receiver of a national banking association who,
with like intent to defraud or injure, embezzles, abstracts, purloins,
or wilfully misapplies any of the moneys, funds, or assets of his
trust, and every person who, with like intent, aids or abets any offi-
cer, director, agent, employee, or receiver in any violation of this
section shall be deemed guilty of a misdemeanor, and upon convic-
tion thereof in any district court of the United States shall be fined
not more than $5,000 or shall be imprisoned for not more than five
years, or both, in the discretion of the court.

Any Federal reserve agent, or any agent or employee of such
Federal reserve agent, or of the Federal Reserve Board, who em-
bezzles, abstracts, or wilfully misapplies any moneys, funds, or se-
curities intrusted to his care, or without complying with or in vio-
lation of the provisions of the Federal reserve Act, issues or puts in
circulation any Federal reserve notes shall be guilty of a misde-

National Banks. 599

meanor and upon conviction in any district court of the United
States shall be fined not more than $5,000 or imprisoned for not
more than five years, or both, in the discretion of the court."

§ 375b. False Entries Mistakenly Made. — An entry
made by mistake which is false is not an offense. Graves
vs. U. S., 165 U. S., ; 41 L. ed., 732.

Sec. 375 b. b. Decisions and Suggestions With Ref-
ference to Foregoing Act.

Liberty bonds are "funds" and the intention to re-
turn funds is no defense to the charge of embezzlement,
U. S. vs. Jenks, 264 F. 697.

A cashier's check is a bill of exchange, Hoos vsA
U. S., 232 F. 328.

The intent to defraud is essential in all prosecutions
under this statute, U. S. vs. Jenks, 258 F. 763.

Jurisdiction over bank offenses is exclusive to the
United States, Easton vs. U. S. 188 U. S. 220, 47 Law
Ed. 452.

Under the new statute this is now a felony, U. S. vs.
Hoos, 232 F. 328.

The payment of a note out of the funds of a bank
is a violation, when, Showalter vs. U. S., 260 F. 719.

A receiver of a National Bank is not an "agent", U.
S. vs. Weitzel, U. S. Sup. Ct. April, 1918.

Loans on wheat bills of lading, etc., may support a
charge of misapplication, Stout vs. U. S., 227 F. 799

The offense is to be determined by the facts at the
time and subsequent payment is not a defense, Matters
vs. U. S., 261 F. 826.

For a case wherein the evidence was held insufficient
to sustain a conviction for abstraction see McCallum vs.
U. S., 247 F. 27.

For conspiracy to abstract see Oppenheim vs. U. S.,
241 F. 625.

Intent in prosecutions under this statute cannot be
ignored nor charged against by the court. Cummins vs.
U. S., 232 F. 844.

The appropriation of a special deposit is an offense,
Sheridan vs. U. S., 236 F. 305.

A misapplication evidence furnished by a reporter
which failed to show an overdraft is admissible, Garanflo
vs. U. S., 246 F. 910.

600 Federal Criminal Law Procedure.

►

As to different defendants and different offenses and

questions of duplicity see U. S. vs. ; Boone vs. U.

S., 257 F. 963; Simpson vs. U. S., 229 F. 940.

For a case on false entries an intent see Galbreatli
vs. U. S., 257 F. 648.

As to the liability of a bank for bonds deposited
with the cashier see First vs. Mercantile, 273 F. 119.

§ 376. Abstraction. — The president, director, cashier,
teller, clerk, or agent of any national banking associa-
tion who abstracts any of the (1) moneys, (2) funds, or
(3) credits, of the association, with the intent to injure
or defraud (1) the association, (2) any other company,
body politic or corporate, or (3) any individual person,
is guilty of abstraction. Abstraction from definitions
taken from United States vs. Eno, 56 Federal, 220, and
United States vs. McKnight, 115 Federal, 972, means to
take or withdraw from; so that, to abstract the funds of
a bank, or a portion of them, is to take and withdraw
from the possession and control of the bank the moneys
and funds alleged to be so abstracted. Such abstrac-
tion must be, of course, without its knowledge and con-
sent, and with the intent to^Tnjure or defraud it or some
other person or company. The Supreme Court, in speak-
ing of the word "abstraction" in the Northway case, 120
U. S., says:

"We do not admit the proposition that the offense ,of abstracting the
funds of the bank under this section is necessarily equivalent to
the offense of larceny. The offense of larceny is not complete without
the animus furandi, the intent to deprive the owner of his property;
but under Section 5209, an officer of the bank may be guilty of ab-
stracting the funds and money and credits of the bank without that,
particular intent. The statute may be satisfied with an intent to
injure or defraud some other company or body politic or corporate,
or individual person, than the banking association, whose property
is abstracted, but merely to deceive some other officer of the associa-
tion or an agent appointed to examine its affairs, This intent may
exist in a case of abstracting, without that intent which is necessary
to constitute the offense of stealing. Previous possession is not neces-
sary in order to the commission of this offense. United States vs.
Harper, 33 Federal, 480. In United States vs. Breese, 131 Federal,
921, abstraction is defined as the act of one who, being an officer of a
national banking association, wrongfully takes or withdraws from
it any of its moneys, funds, or credits, with intent to injure or de-

National Banks. 601

fraud it, or some other person or company, and without its knowl-
edge and consent. It may be done by one act, or by a succession of
acts. It may be done under color of loans, discounts, checks, or the
like. The means does not change the nature of the act."

§ 377. Misapplication. — Wilful misapplication is the
misapplying by any president, director, cashier, teller,
clerk, or agent, etc., of (1) moneys, (2) funds, or (3)
credits of the association, with the intent to injure or
defraud (1) the association, (2) any other company,
body politic or corporate, or (3) any individual person,
or_with the intent to deceive (1) any officer of the as-
sociation, or (2) any agent appointed to examine the
affairs of the association. Misapplication, as defined by
the Supreme Court in the Northway case, 120 U. S.,
may be comprehended by the following language:

"In order to misapply the funds of the bank, it is not necessary
that the officer charged should be in actual possession of them by
virtue of a trust committed to him. He may abstract them from the
other funds of the bank unlawfully, and afterwards criminally mis-
apply them; or, by virtue of his official relation to the bank, he may
have such control, direction, and power of management as to direct
an application of the funds in such a manner and under such circum-
stances as to constitute the offense of wilful misapplication. And
when it is charged, as in the counts of this indictment, that he did
wilfully misapply certain funds belonging to the association, by caus-
ing them to be paid out to his own use and benefit in unauthorized
and unlawful purchases, without the knowledge and consent of the
association, and with the intent to injure, it, it necessarily implies
that the acts charged were done by him in his official capacity, and
by virtue of the power, control, and management which he was en-
abled to exert by virtue of his official relation. This, we think, com-
pletes the offense intended by the statute, of a wilful misapplication
of the moneys and funds of a national banking association."

§ 377a. Cases of Misapplication and Indictment. — U.
S. vs. Heinze, 183 Federal, 907; U. S. vs. Heinze, 218
U. S., 542; U. S. vs. Norton, 188 Federal, 256. The
renewal of a note is not misapplication. Adler vs. U.
S., 182 Federal, 464.

§ 377b. Indictment Duplicitous, When. — Indictment
Duplicitous which says "injure and defraud," etc.
Since the statute uses the disjunctive "or" instead of
the conjunctive "and" between the words 'njure, de-
fraud, deceive, it was held in the case of Norton vs.

602 Federal Criminal Law Procedure.

U. S., 18b Federal, 256, that an indictment which charg-
ed that the defendant did the acts therein complained of
with the intent to injure or defraud and deceive was
duplicitous and upon the question being properly raised
the indictment was quashed. The defendant was reindict-
ed in deference to such judgment and the conviction was
affirmed in Norton vs. U. S., 205 Federal, 593.

In the case of U. S. vs. Corbett, 215 U. S., 233, the
opinion shows that the conjunctive was used in that in-
dictment and while the Supreme Court holds the indict-
ment good, the question now being discussed was not
before the Court and was not in any way whatsoever
mentioned. It, therefore, remains without further
authority than the Norton case, and Billingly vs. U. S.,
178 Federal, 653. It does seem, however, that the deci-
sions in the Norton and Billingsly cases are correct,
because manifestly one could do the acts enumerated in
the statute with intention to either injure or the inten-
tion to defraud or with the intention to deceive and the
three words are not in any sense synonymous and it
therefore seems that the doing of the .acts denounced
by the statute, with the three separate intents, become as
many separate felonies, no more than one of which, of
course, can be laid in the same count of the indictment.

§ 378. False Entries. — Every president, director,
cashier, teller, clerk, or agent of any national banking-
association who makes any false entry in (1) any book,
(2) any report, or (3) any statement, of the association,
with the intent, (1) to injure, (2) or defraud, (1) the
association, (2) or any company, body politic, or cor-
porate, or (3) any individual person, or (4) with the
intent to deceive (1) any officer of the association, or (2)
any agent appointed to examine the affairs of such as-
sociation, is guilty of the offense of making false entries,
within the meaning of the statute.

It will be borne in mind that Section 5211 of the Ee-
vised Statutes provides for the making of five reports to
to Comptroller of the Currency of the condition of the
affairs of the association, at such time and upon such
dates as the Comptroller may demand, and it is of these
reports that the statute, in speaking of false entries in
reports, relates.

National Banks. 603

All of the offenses denounced in the statute rest for
their complete fulfillment upon the "intent" to either
injure or defraud the association, or any other company,
body politic or corporate, or any individual person, or
to deceive any officer of the association, or any agent
appointed to examine the affairs of such association.
This_mtent is an essential ingredient of the indictment
and the offense, U. S. vs. Britton, 170 U. S., 655; United
States vs. Voorhes, 9 Federal, 143; McKnight vs. U. S.,
Ill Federal, 735. The cases of Agnew vs. United States,
165 U. S., 36; United States vs. Youtsey, 91 Federal, 864;
United States vs. Allis, 73 Federal, 165; Peters vs. Unit-
ed States, 94 Federal, 127; United States vs. Kenney,
90 Federal, 257; and Evans vs. United States, 153 U.
S., 584, announce no new doctrine in the criminal law
when they hold, in substance, that such intent does not
necessarily involve malice or ill-will toward the bank,
for the law presumes that a person intends the necessary
and natural consequences of his acts, and it is sufficient
that the wrongful or fraudulent act will necessarily or
naturally injure or defraud the bank as set forth in the
statute.

In Flickenger vs. United States, 150 Federal, page 1,
the Circuit Court of Appeals for the Sixth Circuit adopt-
ed this view, and said:

"There could be no proper presumption that the directors, in the
ordinary course of business, would consent to the discount, by the
president, of worthless and fictitious paper, with intent to injure and
defraud the bank, and, therefore, no necessity to insert in the in-
dictment an averment to negative such authority."

Any entry which is intentionally made to represent
what is not true, or does not exist, is a false entry, Agnew
vs. United States, 165 U. S., 36. An entry of a note as
paid, when it has only been endorsed by the bank and
re-discounted, is a false entry,, Dorsey vs. United States,
101 Federal, 746. An entry as money deposited of a sum
of money left with the bank in a sack as a special de-
posit, is a false entry, United States vs. Peters, 87 Fed-
eral, 985. The entry on a bank book of a transaction
just as it occurred, although such transaction be a fraud

604 Federal Criminal Law Procedure.

on the bank, is not a false entry, Dow vs. United States,
82 Federal, 904; U. S. vs. Young, 128 Federal, 111. And
the crime of making false entries may be committed
personally or_by direction, and an officer directing the
making of false entries is liable therefor, Agnew vs.
United States, 165 U. S., 36; United States vs. Youtsey,
91 Federal, 864; Scott vs. United States, 130 Federal,
429; United States vs. Allis, 73 Federal, 165; United
States vs. Harper, 33 Federal, 480; United States vs.
Fisk, 24 Federal, 585; 5 Federal Statutes Annotated,
150. Entries in the book of a national bank, which .cor-
rectly record actual transactions of the bank, although
such transactions may have been unauthoried, or even
fraudulent, are not false entries, and will not sustain
an indictment, Twining vs. United States, 141 Federal,
41. That the including of an account of an accommoda-
tion note, given to cover overdrafts, in a report made to
the Comptroller was not a false entry within the mean-
ing of the statute, was decided by the Circuit Court of
Appeals for the Eighth Circuit in Hayes vs. United
States, 169 Federal, 101. Any false entry made in a
report to the Comptroller is within the meaning of this
statute Cochran vs. United ' States, 157 U. S., 293;
United States vs. Bartow, 10 Federal, 874; United States
vs. Means, 42 Federal, 599; United States vs. Hughitt,
45 Federal, 47; United States vs. Allen, 47 Federal, 696;
United States vs. French, 57 Federal, 382.

In Harper vs. United States, 170 Federal, 385, the Cir-
cuit Court of Appeals for the Eighth Circuit held that
the section makes it a criminal offense for any officer
or agent of a national bank to make any false entry in
a report of the association, with the intent to deceive
any officer of the association, etc., whether the report was
voluntarily made, or was one required by law, if the
false entry was made with the request unlawful intent.
This case also passes upon the sufficiency of an indict-
ment and its requisite averments in the matter of setting
out the report and holds that if the indictment shows
the date upon which the report was made and that it
was a report made to the comptroller showing resources

National Banks. 605

and liabilities on a certain date, it is sufficient to author-
ize the presumption that it was a report made by the
association under Section 5211.

District Judge Sanborn, in United States vs. Corbett,
162 Federal, 687, held that an indictment which charged
as officer of a bank with making a false entry in a report
made by him, "with intent to deceive an agent appoint-
ed to examine the affairs of the association, to wit, the
Comptroller of the Currency of the United States," did
not charge as offense; holding that the Comptroller was
not charged with the duty to examine national banks.
Without accepting this doctrine as the law, it is suggest-
ed that in the drafting of indictments under this portion
of the statute, the allegation should be made that the
intent was to deceive an agent appointed to examine the
affairs of the association, to wit, a national bank ex-
aminer.

In United States vs. Morse, 161 Federal, 429, the
Court held that the word "entry" in the statute means
"any item in an account." In United States vs. Wilson,
176 Federal, 806, District Judge Sheppard held that the
intent to deceive may be inferred from the making of
flic entry, and such false entry may be made either per-
sonallv, or bv direction. In Morse vs. United States, 174
Federal, 539, the Circuit Court of Appeals for the Second
Circuit affirmed the doctrine that false entries may be
made by direction. In other words the defendant, in
that case did not make the entries with his own pen.
All of them were made by the employees of the company,
as a part of their routine work. The Court held that it
was wholly immaterial whether such officer acts through
a pen or a check controlled by him.

§ 378a. False Entries and False Reports Continued.
— One is guilty under this section for causing or pro-
curing the making of false entries. Richardson vs. U.
S., 181 Federal, 1. The concealment of facts necessary
to enable the bookkeeper to make entries would not be
a false entry by the officer so concealing. U. S. vs. Mc-
Clarty, 191 Federal, 532.

False reports made by a clerk under the direction of

606 Federal Criminal Law Procedure.

one of the persons mentioned in the statute is the same
as though such person himself made the false report.
Kettenbach vs. U. S., 202 Federal, 377.

§ 378b. Admission of Books. — The books of the na-
tional bank in which the offense is charged to have oc-
curred are always admissable without proof that they
were correctly kept. In other words, they are admitted
in evidence after proof that they are such books. When,
however, books of a bank not involved in the prosecu-
tion are sought to be introduced there must first be the
proof that they were correctly kept, etc. Phillips vs.
U. S., 201 Federal, 260.

§ 379. Other Cases.— In United States vs. Morse, 161
Federal, 429, the Court held that the subsequent return
of the money was no defense to a prosecution for misap-
plication, such fact being only evidence to negative the
officer's intent to defraud at the time of the alleged of-
fense, and thus testimony could be introduced for jury
purposes. In United States vs. Hillegass, 176 Federal,
444, will be found a copy of indictment for aiding and
abetting under this statute. See also Brown vs. United
States, a prosecution for aiding and abetting, 142 Fed-
eral, page 2. In Walsh vs. United States, 174 Federal,
621, the defendant was convicted, and his conviction was
affirmed while he was on bond. After the affirmance,
the United States filed a motion to have him appear and
show cause why his bail should not be set aside. The
Court refused the petition, on the ground that no un-
usual reason was shown why he was not likely to remain
within the jurisdiction pending a motion for re-hearing
which he had made. In Walsh vs. United States, 174
Federal, 615, the Court held that it was misapplication
for an officer of a national bank, who is ajso a promoter
of various enterprises, to obtain the funds of the bank
on the security of unmarketable bonds of his own enter-
prises at the risk of the interests of the bank. In that
case, it was also determined on the same writ of error
that a juror on a criminal case cannot afterwards im-
peach a verdict in which he joined.

In Woods vs. United States, 174 Federal, 651, the Cir-

National Banks. 607

cuit Court of Appeals for the Fifth Circuit affirmed the
well-established doctrine in a bank case applicable in
all Federal criminal cases, that a general verdict and
judgment on an indictment containing several counts,
cannot be reversed on error, if one of the counts is good
and warrants the judgment.

It has been held, of course, that a conspiracy to violate
this section is indictable under Section 5440 of the old
Code, Scott vs. United States, 130 Federal, 429.

For a definition of "moneys, funds, and credits," see
United States vs. Smith, 152 Federal, 542 which holds, ,
in substance that the word "moneys" refers to the cur-
rency or circulating medium of the country; the word
"funds" refers to Government, State, county, munici-
pal, or other bonds, and to other forms of obligations and
securities in which investments may be made; and the
word "credits" refers to notes and bills payable to the
bank, and other forms of direct promises to pay money
to it.

In Thompson vs. United States, 159 Federal, 801, the
Circuit Court of Appeals for the First Circuit approves
an indictment against a cashier, which charged that that
officer unlawfully "converted" certain moneys, funds,
and credits to the use of another. The Court said :

"The word 'convert' has such force at Common Law that when used
in an indictment with a statement as to whose use the conversion was
made, it needs no amplification, any more than the word 'embezzle'
or the words 'take, steal, and carry away' (citing the Jewett case,
100 Federal, 832). It is true that the word 'convert' is also awkward
in the place where we find it here, but no objection was attempted
on that ground, and its use, as used here, has been accepted by the
Supreme Court in a like connection for the same purpose, Coffin vs.
United States, 156 U. S., 432, 39 Law Ed., 481; same case, 162 U. S.,
666, 40 Law Ed., 1109. The word 'convert' under the circumstances,
must be accepted as intending exactly the same thing as when spoken
in connection with the use of the person who was guilty of the con-
version."

In the case of United States vs. Steinman, 172 Federal,
913, the Circuit Court of Appeals for the Third Circuit
held that wilful misapplication of the funds of a national
bank, in order to constitute an offense under this section,

608 Federal Criminal Law Procedure.

must be a wilful misapplication, for the use or benefit
of the accused, or of some person or company other
' than the banking association, with intent to injure and
entirely different from facts constituting unofficial mal-
administration, subjecting the bank to a forfeiture of
its charter, and an unintentional overdraft by a deposit-
or in good standing and possessing ample means to pay,
or an overdraft to be paid pursuant to a prior agreement,
resting on abundant credit, does not constitute misap-
plication.

In that case also, there was a count for aiding and
abetting, and the Court held that in a prosecution for
aiding and abetting the officers of a national bank to
wilfully abstract the funds of the bank, by means of
certain overdrafts, evidence that prior to the making of
such overdrafts, it was agreed that the bank should
furnish funds for the operations of certain corporations,
in which the accused and the bank's president and cash-
ier were officers, and that from time to time notes should
be given by such corporations to take up the overdrafts,
and that at the time of the advances the value of the
corporation's property was more than three hundred
thousand dollars, while the overdrafts aggregated only
thirty thousand dollars, was admissible to show absence
of criminal intent.

Sec. 379 a. Federal Reserve Banks Statute Contin-
ued.

The elaboration and enlargement of sections 5208 and
5209 loses entirely the words National Banking Associa-
tion and substitutes the words "member bank" and Fed-
eral reserve bank, etc.,

A member bank is any National Bank because every
national bank under the Federal reserve Act musf be-
come a member bank or lose its charter. Arry_^ta^bank
may become a member bank see Arts. 9284-9308, 1919

•* 7

Barnes Federal Code.

Indictments should carefully include a sufficient dis-
tinction to show the federal jurisdiction.

Sec. 379 b. Limit of Liability to be Incurred bv an
Individual.

National Banks. 609

Since section 5200 of the old statute is often valuable
for both the defense and prosecution in a criminal case
under 5208 and 5209 as amended, the new 5200, as amend-
ed in 1906, and 1918, is given as follows: —

"The total liabilities to any association, of any person, or of any
company, corporation, or firm for money borrowed, including in the
liabilities of a company or firm the liabilities of the several mem-
bers thereof, shall at no time exceed 10 per centum of the amount
of the capital stock of such association, actually paid in and unim-
paired, and 10 per centum of its unimpaired surplus fund: Pro-
vided, however, That (1) the discount of bills of exchange drawn
in good faith against actually existing values, (2) the discount of
commercial or business paper actually owned by the person, compa-
ny, corporation, or firm, negotiating the same, and (3) the purchase
or discount of any note or notes secured by not less than a like
face amount of bonds of the United States issued since April 24,
1917, or certificates of indebtedness of the United States, shall not
be considered as money borrowed within the meaning of this sec-
tion; but the total liabilities to any association, of any person or
of any company, corporation, or firm, upon any note or notes pur-
chased or discounted by such association and secured l\y such bonds
or certificates of indebtedness, shall not exceed (except to the ex-
tent permitted by rules and regulations prescribed by the Comp-
troller of the Currency, with the approval of the Secretary of the
Treasury) 10 per centum of such capital stock and surplus fund of
such association."

CHAPTER XIX.

BANKRUPTCY.

$ 380. Section 29 of the Act.

381. Other Offenses of the Section.

382. Illustrative Cases and Decisions.
382a. Decisions Continued.

383. Failure to Pay Over Money.

§ 380. The National Bankrupt Act, passed in 1898,
in answer to a universal demand, and under the authority
of the Constitution, has been amended twice by Congress
in matters that do not relate to its criminal sections.
Original Section 29 of the Bankrupt Act, which is the
law today with reference to offenses against that Act,
reads as follows:

"Sec. 29a. A person shall be punished, by imprisonment for a
period not to exceed five years, upon conviction of the offense of hav-
ing knowingly and fraudulently appropriated to his own use, em-
bezzled, spent, or unlawfully transferred any property or secreted or
destroyed any document belonging to a bankrupt estate which came
into his charge as trustee.

ub. A person shall be punished, by imprisonment for a period
not to exceed two years, upon conviction of the offense of having
knowingly and fraudulently (1) concealed while a bankrupt, or after
his discharge, from his trustee any of the property belonging to his
estate in bankruptcy; or (2) made a false oath or account in, or in
relation to, any proceeding in bankruptcy; (3) presented under oath
any false claim for proof against the estate of a bankrupt, or used
any such claim in composition personally or by agent, proxy, or at-
torney, or an agent, proxy, or attorney; or (4) received any material
amount of property from a bankrupt after the filing of the petition,
with intent to defeat this act; or (5) extorted or attempted to ex-
tort any money or property from any person as a consideration for
acting or forbearing to act in bankruptcy proceedings.

"c. A person shall be punished by fine, not to exceed five hundred
dollars, and forfeit his office, and the same shall thereupon become
vacant, upon conviction of the offense of having knowingly (1) acted
as a referee in a case in which he is directly or indirectly interested;
or (2) purchased, while a referee, directly or indirectly, any prop-
erty of the estate in bankruptcy of which he is referee; or (3) re-
fused, while a referee or trustee, to permit a reasonable opportunity
for the inspection of the accounts relating to the affairs of, and the

(610)

Bankruptcy. 611

papers and records of, estates in his charge by parties in interest
when directed by the court so to do.

"(Z. A person shall not be prosecuted for any offense arising under
this act unless the indictment is found or the information is filed in
court within one year after the commission of the offense."

Section a of the Act relates alone and exclusively to
punishment of the trustee for having knowingly and
fraudulently appropriated to his own use, embezzled, or
spent, or transferred, or secreted, or destroyed any of the
property, or any document belonging to an estate which
he administers as such officer of the Court.

A satisfactory indictment under this secttion must
necessarily allege an adjudication, the time and date
of the appointment of the trustee, and his qualification,
and then set out specifically the property he is charged
to have converted, destroyed, or transferred, as fully and
specifically as if the offense was for larceny, with the
exception that consent of the bankrupt is unnecessary,
for the reason that the title vests in the trustee under
the statute. The section includes not only an appropria-
tion to the trustee's own use, but an unlawful transfer
of the property for the use of another. It is true the
word "unlawfully' as used with reference to the trans-
fer would perhaps include some sort of a gain or motive
beneficial, or supposedly beneficial, to the trustees. If,
however, the proof showed a reckless disregard of his
obligations and duties as trustee, in the way of wilful
destruction or secretion of the property or documents
of the estate, manifestly for the purpose of defeating a
proper administration of the trust, a case would be made
out under this section.

§ 381. Other Offenses of the Section. — Paragraphs 1,
2, and 5, of sub-division b of Section 29, relate to offenses
committed by the bankrupt. Paraghaph 2, 3, 4, and 5
of subdivision b of Section 29, create offenses that may
be committed by persons who are not bankrupts. Sec-
tion c of subdivision b of Section 29 relates to offenses
by the referee in bankruptcy, and sub-division d of the
section creates a particular statute of limitation for all
the bankrupt offenses described in the entire section, to

612 Fedeeal Ceiminal Law Peoceduee.

wit, that the indictment must be found, or the informa-
tion filed, within one year.

§ 382. Decisions. — An indictment in the terms of the
section, which charges the knowing and fraudulent con-
cealment, while a bankrupt, or after his discharge, from
his trustee, of any of the property belonging to his estate
in bankruptcy, sets forth the elements of the offense, and
is sufficient. United States vs. Comstock, 161 Federal,
644. It is not necessary to allege in the indictment that
the bankrupt, at the time of the concealing of his prop-
erty, knew either the fact that a trustee had been ap-
pointed for his estate, or the name of such trustee,
United States vs. Comstock, 161 Federal, 644.

The word "conceal" as used in the section, is of plain
import, and when coupled in an indictment with the
words "unlawful, knowingly, and fraudulently," clearly
excludes unintentional acts, United States vs. Comstock,
161 Federal, 644. The offense of concealing property,
by a bankrupt, form his trustee, consists of a continuous
concealment of the property from the trustee during the
whole course of the bankruptcy proceedings, or beyond,
and is, therefore, not necessarily consummated by an
omission of the property from the schedules, Johnson vs.
United States, 163 Federal, 30.

In an indictment against a bankrupt and others for a
conspiracy to conceal assets of the estate from his trus-
tee in bankruptcy, an averment that the trustee was
"duly" appointed trustee is sufficient; the matter of
appointment being an incidental matter only, and not
a vital element of the crime.

In United States vs. Lake, 129 Federal, 499, Judge
Treber held, on demurrer, that an indictment against
the president of a bankrupt corporation, for making a
false oath to its schedules, which showed that the defend-
ant, as its president, in compliance with the bankrupt
law, did file in the bankruptcy proceedings, with the ref-
eree, the schedules required by law, subscribed and
sworn to him, as president; that the defendant stated
on his oath that such schedules contained a true and
complete statement of all the corporation's property;

Bankruptcy. 613

and that the statement that the bankrupt corporation
had then on hand onlv the sum of a hundred dollars,
which was all the money the corporation then and there
had — was false, such an indictment followed the strict
language of the Act, and sufficiently showed the ma-
teriality of the false statement, without the express aver-
ment thereof.

An indictment for conspiracy to fraudulently conceal,
etc., property from a trustee, is not insufficient because
it charges that the property was removed and concealed
prior to the bankruptcy, where it also avers that the con-
cealment was continued after the bankruptcy, and after
the appointment of the trustee, and that the property
was not scheduled by the bankrupt.

A charge of conspiracy to conceal, etc., may be sup-
ported by evidence that the property was sold under a
chattel mortgage, given by the bankrupt prior to the
bankruptcy, where it is shown that such mortgage and
sale were merely colorable and that the property in fact
remained that of the bankrupt. In United States vs.
Grodson, 164 Federal, 157, the Cohen case is affirmed,
but Judge Sanborn holds that an indictment charging
a conspiracy to sell, etc., where it shows that the con-
spiracy was formed and the property removed and con-
cealed, prior to the bankruptcy, but does not aver that it
was in contemplation of bankruptcy, or that any overt
act was committed after the bankruptcy, although it
charges a further conspiracy thereafter to continue the
concealment, is insufficient. The officer of a bankrupt
corporation, who is not, and has not been, a bankrupt,
is not liable under this section for having frauduently
and knowingly concealed the property of the estate of
the corporation in bankruptcy from its trustee. The
present or past bankruptcy of the accused is an indis-
pensable element of the offense denounced by the statute.
A penal statute which creates and denounces a new of-
fense, must be strictly construed. Where it is plain
and unambiguous, the courts may not lawfully extend
it by interpretation, to a class of persons who are ex-
cluded from its effect by its terms, for the reason that

614 Federal Criminal Law Procedure.

their acts may be as mischievous as those of the class
whose deed it denounces, Circuit Court of Appeals for the
Eighth Circuit in Field vs. United States, 137 Federal,
page 6.

To the same effect is United States vs. Lake, 129 Fed-
eral, 499, where it was held that paragraph b of the Act,
providing that a person shall be punished on conviction
for having knowingly and fraudulently concealed, while
a bankrupt, or after his discharge, from his trustees,
any of the property belonging to his estate in bank-
ruptcy, must be strictly construed, and does not include
officers of a corporation declared a bankrupt. A bank-
rupt corporation may commit the criminal offense of
knowingly and fraudulently concealing its property from
its trustee, denned and made punishable by the Act, and
individuals who conspire to cause a corporation to com-
mit such offense are indictable under old Section 5440,
and it is immaterial that the corporation is not, or can-
not be, indicted as one of the conspirators, Circuit Court
of Appeals for the Second Circuit, in Cohen vs. United
States, 157 Federal, 651.

From the above decisions, will be drawn this line of
law to wit:

First, that an officer of a bankrupt corporation cannot
be indicted for concealing the property of the bankrupt
from the trustees, because he, the officer, is not the bank-
rupt.

Second, The bankrupt corporation may be indicted for
concealing its property from the trustee.

Third, Individuals who conspire to conceal the prop-
erty of a bankrupt corporation may be indicted for an
offense under the general conspiracy statute, which was
old Section 5440, as amended.

The case of Johnson vs. United States, 170 Federal,
581, by the Circuit Court of Appeals for the First Cir-
cuit, permits the trustee in bankruptcy to testify that he
had never learned from the bankrupt that there was
pro])erty belonging to the bankrupt stored in the places
where the goods covered by the indictment were found,
and that the trustee himself found the goods in question,
apparently without the assistance of the bankrupt, even

Bankruptcy. 615

though such testimony was objected to on the ground
that it was an attempt to disclose the bankrupt's testi-
mony before the referee. The decision distinguishes the
cases of Jacobs vs. United States, 161 Federal, 694,
and Johnson vs. United States, 163 Federal, page 30,
which two cases those respective Courts held to be in-
direct methods of introducing the bankrupt's schedule
of assets and liabilities against him in criminal cases;
the Johnson and Jacobs cases holding that this cannot be
done, of course, directly or indirectly.

The .Circuit Court of Appeals for the First Circuit, in
Kerrch vs. United States, 171 Federal, 366, held that on
the trial of an involuntary bankrupt for conspiracy to
conceal property from its trustees, it was not error to
admit in evidence, over the defendant's objection and
claim of privilege his books of account, which had been
taken possession of by a receiver appointed by the bank-
ruptcy court.

In Wechsler vs. United States, 158 Federal, 579, the
Circuit Court of Appeals for the Second Circuit held that
Section 7 of the Bankrupt Act, which requires the bank-
rupt to submit to an examination under oath as to vari-
ous matters specified, with the proviso that "no testi-
mony given by him shall be offered in evidence against
him in any criminal proceeding, ' ' does not give immunity
from prosecution for giving false testimony upon any
such examination. That case further holds that if there
be false testimony upon such examination, it may be
prosecuted under the old perjury statute, which was old
Section 5392, or under the bankrupt statute, now being
considered, for making a false oath. See also United
States vs. Bartlett, for perjury in schedules, 106 Federal,
page 884; and for other cases bearing upon this section
United States vs. Owen, 32 Federal, 534; United States
vs. Bozer, 4 Dillion, 407; also cases in 5 Federal, 681,
and 7 Federal, 715; United States vs. Jackson, 2 Federal,
502; United States vs. Bayer, 4 Dillon, 407, Federal Case
No. 14547; United States vs. Houghton, 14 Federal, 544.
In Johnson vs. United States, 158 Federal, page 69,
the Circuit Court of Appeals for the Fifth Circuit re-
versed a judgment of conviction and dismissed the in-

616 Federal Criminal Law Procedure.

dictrnent and discharged the defendant under an indict-
ment which charged a conspiracy under old Section 5440,
to conceal property from the trustee, where the indict-
ment alleged that the conspirators were the trustee, the
bankrupt, and a third party; the bankrupt and the third
party having been convicted. The Court of Appeals
dismissed the indictment, and discharged the trustee,
holding that the trustee could not conspire to conceal
from himself. A consideration of this opinion is ad-
vised, together with the reasoning in Cohen vs. United
States, 157 Federal, 651, where the Court of Appeals for
the Second Circuit held that in a conspiracy prosecution,
it was immaterial that the corporation is not, or can-
not be, indicted as one of the conspirators; also with the
case of 3 Howell's State Trials, 402, where a husband
was convicted for conspiring to rape his own wife, even
though he himself could not commit such rape.

§ 382a. Decisions Continued. — Perjury may be assign-
ed for swearing falsely on the examination provided for
by the statute. Daniels vs. U. S., 196 U. S., 459. Indict-
ment for concealing must be brought within one year
from the date of actual concealment. U. S. vs. Philips,
196 Federal, 574; also upon the question of limitation
see Warren vs. United States., 199 Federal, 753. Bank-
rupt is entitled to the presumption of innocence upon
charge of concealment. Chadkowski vs. U. S., 194 Fed-
eral, 858. Indictment will lie for concealing an interest
in property. Leders vs. U. S., 210 Federal, 419. For
making false oath and proof thereof, see Kavoloff vs.
U. S., 202 Federal, 475; Kahn vs. U. S., 214 Federal,
54. It is not necessary to allege the appointment of a
trustee in an indictment charging a conspiracy to con-
ceal. Steigman vs. U. S., 220 Federal, 63. For cases
charging conspiracy to conceal assets from trustee see
Radin vs. U. S., 189 Federal, 568. Roukous vs. U. S.,
195 Federal, 353. A corporation may be one of the con-
spirators, Ronkous vs. U. S., 195 Federal, 353. One who
is not a bankrupt may conspire to conceal, provided
there is included in the conspiracy the bankrupt. Kauf-
man vs. U. S., 212 Federal, 613. Perjury cannot be as-
signed on an examination of the bankrupt where such

Bankruptcy. 617

examination was ex parte and when there was no issue.
U. S. vs. Rhodes, 212 Federal, 518. The constitutional
provision that no man shall be compelled to be a witness
against himself is applicable to bankrupt and entitles
him to refuse not only to give oral testimony, but to
produce books and papers which will tend to incriminate
him. U. S. vs. Rhodes, 212 Federal, 518, which case will
have to be circumspectly read in order to give very
much weight to it in view of the decision of the Supreme
Court in re Harris, 221 IT. S., 274, where it was held
that the right under the Fifth Amendment not to be com-
pelled to be a witness against one's self is not a right
to appropriate property that may tell one's story and
that a bankrupt is not deprived of his constitutional
right not to testify against himself by an order requir-
ing him to surrender his books to the duly authorized
receiver. The decision distinguishes the case of Counsel-
man vs. Hitchcock, 142 U. S., 547, which seemed to
announce a somewhat broader doctrine in favor of the
constitutional guaranty than does the Harris case. A
conspiracy to conceal assets must include the bankrupt
in the conspiracy in order to be against the law. Nem-
cof vs. U. S., 202 Federal, 911; U. S. vs. Rhodes, 212
Federal, 513.

Sec. 382 b. Decisions Continued.

A partner may be convicted for concealing though
only the "partnership" was adjudicated, Cannetto vs.
U. S., 275 F. 42, Malvin vs. U. S., 252 F. 449.

For a definition of concealment and the necessity to
prosecute where the concealment actually took place, see
Gretsch vs. U. S., 231 F. 57.

Whether it was a voluntary on an involuntary adjudi-
cation is immaterial — different kind of property and dif-
ferent modes of concealment do not render the indict-
ment duplicitous, Tugendhaft vs. U. S., 263 F. 562.

For extortion bv attorney see U. S. vs. Dunkley, 235
F. 1000.

For conspiracv charges and indictment see Frankfurt
vs. U. S., 231 F. 903; Friedman vs. U. S., 236 F. 816; Kno-
ell vs. U. S., 239 F. 16; 238 U. S. 78.

618 Federal Criminal Law Procedure.

The officers of a corporation may be convicted for con-
cealing under this statute, Wolf vs. U. S., 238 F. 903.

Proof of the appointment of a trustee may be made by
parol and a failure to give bond is no defense to the crim-
inal, Sharf sin vs. U. S., 265 F. 916.

Evidence given by a bankrupt may not be used against
him in a criminal case but objection must be made to its
use, Bain vs. U. S., 262 F. 664.

§ 383. Failure to Pay over Money. — From the power
of a court of equity, administering the Bankrupt Statute,
to require the bankrupt to pay over money or other prop-
erty shown clearly to be in his possession, or go to jail for
contempt, has arisen what may be termed another crim-
inal feature of the law. One of the earliest cases under
this power of the statute is in re Purvine, 96 Federal, 192
wherein a commitment to the Dallas County Jail, by Dis-
trict Judge Meek, of the bankrupt for failure to pay over
certain funds shown to be in the possession of the bank-
rupt, was affirmed by the Circuit Court of Appeals for the
Fifth Circuit. In that opinion, the Court says:

"If the court of bankruptcy is powerless in this respect, persons,
by becoming bankrupts, obtain an immunity not allowable in any
other court of equal dignity, either Federal or State, in this country."

A similar jurisdiction was invoked under the Act of 1867.
In in re Mize et al, 172 Federal, 945, District Judge
Grubb maintains the same power, and cities a number of
similar decisions, and holds:

"The courts have been very careful not to permit contempt pro-
ceedings to be converted into a means of coercing payment of debts
from funds other than assets wrongfully withheld by the bankrupt,
and for this reason, have required the clearest evidence that the
bankrupt had the assets in his possession, and the present ability
to turn them over to the trustee, as directed by the order."

See also Clay vs. Waters, 178 Federal, 385, and in re
Marks, 176 Federal, 1018, where it was held that a bank-
rupt should not be committed for contempt for a failure
to comply with an order requiring him to turn over
money to his trustee, alleged to have withheld, where the
Court is convinced that the bankrupt is without physical
ability to comply; citing also 171 Federal 281.

CHAPTER XX.

FOOD AND DRUGS.

§ 384. Act of June 13, 1906, Generally.

385. Criminal Sections.

385a. Amendment Allowing Variations.
385b. Criminal Practice Under.

386. Decisions.

386a. Decisions Continued.

386b. Misbranded Under New Amendment.

387. Importation of Opium.
387a. Additional Opium Statutes.
387b. These Statutes Constitutional.
387bb. Opinions Decisions.

§ 384. The Act of June 30, 1906, 34 Stat. L., 768, is
what is known as the Pure Food Act. This statute con-
tains thirteen sections, the first two of which create crim-
inal offenses. The third provides for rules and regula-
tions by the Secretary of the Treasury, the Secretary of
Agriculture, and the Secretary of Commerce and Labor.
The fourth provides for certain chemical examinations,
hearings, etc. The fifth provides for legal proceedings
by the District Attorney. The sixth defines drags
and food. The seventh defines adulterations, etc.
The eighth defines misbranding, etc. The ninth
relates to a guaranty by the manufacturer. The tenth
fixes a method for seizure of original packages. The
eleventh provides for an examination of imported foods
and drugs. And the twelfth includes the insular posses-
sions, and defines "person."

§ 385. Criminal Sections. — The first two sections are,
therefore, of interest to us here. The first section pro-
vides that it shall be unlawful for any person to manu-
facture, within any Territory, or the District of Columbia,
any article of food, or drugs, which is adulterated or mis-
branded, within the meaning of the Act, and fixes a penal-
ty of a fine not to exceed five hundred dollars, or one
year's imprisonment, or both such fine and imprisonment,
the second section is more comprehensive, because it ap-
plies to all interstate commerce, and reads as follows:

(619)

620 Federal Criminal Law Procedure.

"Sec. 2. That the introduction into any State or Territory or the
District of Columbia from any other State or Territory, or the Dis-
trict of Columbia, or from any foreign country, or shipment to any
foreign country of any article of food or drugs which is adulterated
or misbranded, within the meaning of this Act, is hereby prohibited;
and any person who shall ship or deliver for shipment from any
State or Territory or the District of Columbia to any other State or
Territory or the District of Columbia, or to a foreign country; or
who shall receive in any State or Territory or the District of Columbia
from any other State or Territory or the District of Columbia, or
foreign country, and having so received, shall deliver, in original un-
broken packages, for pay or otherwise, or offer to deliver to any other
person, any such article so adultered or misbranded within the mean-
ing of this Act, or any person who shall sell or ofier ror sale in the
District of Columbia or the Territories of the United States any such
adulterated or misbranded foods or drugs, or export or offer to export
the same to any foreign country, shall be guilty of a misdemeanor, and
for such offense be fined not exceeding two hundred dollars for the
first offense, and upon conviction for each subsequent offense not ex-
ceeding three hundred dollars or be imprisoned not exceeding one
year, or both, in the discretion of the court. Provided, That no article
shall be deemed misbranded or adulterated within the provisions of
this Act when intended for export to any foreign country and prepared
or packed according to the specifications or directions of the foreign
purchaser when no substance is used in the preparation or packing
thereof in conflict with the laws of the foreign country to which said
article is intended to be shipped; but if said article shall be in fact
sold or offered for sale for domestic use or consumption, then this
proviso shall not exempt article from the operation of any of the
other provisions of this Act."

§ 385a. Amendment Allowing Variations. — The Act
of March 3, 1913, allows for variations in weight, measure
and amount in small packages.

The breaking of Government seals on interstate ship-
ments under this statute relates to all persons. U. S. vs.
Lewis, U. S. Supreme Court, Oct. Term, 1914.

§ 385b. Criminal Practice Under. — It is not a condi-
tion precedent to prosecution that a hearing be had by the
Department of Agriculture, U. S. vs. Morgan, 222 U. S.,
274. The Secretary of Agriculture, after an investigation
of an alleged violation, should certify to the District At-
torney in whose district prosecution for the offense should
be had. U. S. vs. Hopkins, 199 Federal, 649.

While the statute provides that proceedings for the
seizure of goods under the same shall be by libel and con-

Foods and Drugs. 621

form as near as may be to proceedings in admiralty, such
proceeding does not include appellate proceedings, since
the action of the District Court on a libel can only be re-
viewed as at common law by writ of error and not by ap-
peal. Four Hundred, etc., vs. U. S., 226 U. S., 173, re-
versing U. S. vs. Four Hundred, etc., 193 Federal, 589.
A writ of error may not be prosecuted when the only
question involved is the costs of the original proceeding.
Charles vs. U. S., 183 Federal, 566. The prosecution may
be by information for the first offense. U. S. vs. Wells,
186 Federal, 248.

Since the crime denounced by statute is the shipping
or delivering for shipment rather than the introduction,
though of course the shipment must be interstate, the
venue for the prosecution is at the point of shipment or
offering for shipment rather than at the point of introduc-
tion. U. S. vs. Hopkins, 199 Federal, 649, and a corpora-
tion cannot compel the Government to bring its action in
the district in which the corporation is a resident. U. S.
vs. Hopkins, 199 Federal, 649. The preliminary exami-
nation provided for in the law is not necessary before
criminal prosecution, nor is it necessary to allege in the
indictment that there was a preliminary examination. U.
S. vs. Morgan, 222 U. S., page 274; Schraubstadter vs. U.
S., 199 Federal, 568.

§ 386. Decisions. — In in re Wilson, 168 Federal, 566,
District Judge Brown held that syrup, 10 per cent of
which is made from maple sugar and 90 per cent from
white sugar, put up in bottles having thereon labels con-
taining the name ' ' Gold Leaf Syrup, ' ' with a trade-mark
consisting of a gold leaf in the form of maple leaf, and
stalks of sugar cane, and the words ' ' composed of maple
and white sugar" in plain and distinct letters, with the
name of the maker, cannot be said to be misbranded,
so that its shipment in interstate commerce constitutes
a misdemeanor under this Act.

There seems to have been some trend toward including
within the spirit of the statute such articles of food and
drugs as may claim more, in an advertising way, than can
actually be done; but the purpose of the statute was to
rid the streams of commerce of deleterious and poisonous

622 Federal Criminal Law Procedure.

food and drugs. That is the spirit of the statute, the evil
that prompted its passage ; and a construction of the stat-
ute that would run from the market food and drugs that
may be advertised in a high-sounding way, but which
are not in any sense injurious to the health of the people,
would be unjustified. There is a distinction between the
enforcement of law and the abuse of law.

Under the authority of the United States vs. Maufield,
177 Federal, 765, the officers of a corporation which man-
ufactured a food product, shipped by its manager in in-
terstate commerce, and which was adulterated or mis-
branded, are subject to prosecution under the Act, where
they employed the manager and authorized him to oper-
ate the plant and sell the product without restriction, and
the previous course of business had been to ship on orders
to other states.

That case also determined that the provision of the
Act, Section 9, that no dealer shall be prosecuted there-
under for shipping in interstate commerce any adulter-
ated or misbranded article of food or drugs, when he can
establish a guaranty signed by the manufacturer, that
such article is not adulterated or misbranded, is not avail-
able to a dealer only when such guaranty relates to the
indentical article shipped by him, and affords no defense
to him where it relates only to a constituent used by him
in manufacturing the articles shipped.

In United States vs. 779 Cases of Molasses, the Circuit
Court of Appeals for the Eighth Circuit, in 174 Federal
325, held that an article of food put up and sold in cases
bearing labels describing the contents as a particular
brand of molasses, but plainly stating, in three separate
places, that the product is a compound of molasses and
corn syrup, and also containing all the other information
required by the Act and the regulations thereunder, and
which article is in fact a compound of molasses and com-
mercial glucose, is not adulterated or misbranded, within
the meaning of the Act, it being shown that it contains
nothing deleterious to health.

To the same effect is United States vs. Boeckmann, 176
Federal, 382, where it was held that a food product, la-
beled "Compound; pure comb and strained honey and

Foods and Drugs. 6'2

corn syrup," is not misbranded, within the meaning of
this Act, merely because the percentage of corn syrup
in the compound largely exceeds that of honey. So, also,
in the case of United States vs. 68 Cases of Syrup, 172
Federal, 781, it was held that all of the label will be con-
strued together, and that construing all the words of
the bottle labels together, the same meaning was intended
as in the labels on the cases, namely, that the bottles and
the boxes contained blended maple syrup. That case con-
tinues to hold that the Act provides that an article which
does not contain any added poisonous or deleterious
ingredients, shall not be adulterated or misbranded, if
labeled so as to plainly indicate that it is a compound
imitation or blend, and the word "blend" is plainly
stated on the package, which term shall be construed to
mean a mixture of like substances, not excluding harm-
less coloring or flavoring ingredients, used for coloring-
purposes only.

The term "offal," under the authority of United States
vs. 650 Cases of Tomato Catsup, 166 Federal, 773, does
not have an exact legal signification to make it equivalent
to "filthy, decomposed, or putrid vegetable substance,"
as used in the Act, and, therefore, that a libel containing
that term was insufficient, it being essential that the
label shall set forth branding and facts inconsistent with
the Act. The Court held, in United States vs. 50 Barrels
of Whiskey, that it was no defense to proceedings under
this Act that the brand was placed upon the packages con-
taining such liquor by the United States gauger, upon
information received from the distiller, in accordance
with the usual practice, or that the same kind of liquor
had, for a number of years, been so branded and sold
under such brand, to the knowledge of the agents and
officers of the United States.

This, of course, is a statement of the well established
rule that sovereignty cannot be bound by the omission or
commission of its agents.

The same case held that a preliminary examination
by the Department of Agriculture, as provided for in
Section 4, is not at all a necessary condition precedent
to the filing of a libel for the condemnation of the product.

624 Federal Criminal Law Procedure.

Judge Cochran, in Savage vs. Scovell, 171 Federal, 566,
in passing upon the objection to the Kentucky Pure Food
Law, that the Federal Pure Food Law had done away
with the Kentucky Statute, said:

"It is questionable whether Congress can affect a State inspection
law, simply by legislation covering the same subject — whether, in
order to do so, it must not enact legislation under Clause, 2, Section 10,
Article I., of the Federal Constitution, expressly revising and controll-
ing same; but, this apart, the two laws do not cover the same terri-
tory. The Federal law merely covers the subject ot adulteration and
misbranding. The State law has nothing to do with either. It has to
do with the subject of disclosing the ingredients of the articles cover-
ed by it. Its policy is to compel a statement of ingredients, so that
purchasers thereof, in Kentucky, may know exactly what they are
buying, There may be no adulteration or misbranding — no violation
of the Federal law, and yet there may be a violation of the State law
in not disclosing the ingredients."

§ 386a. Decisions Continued. — In the original text of
Section 386 is the statement that it is not thought that
the law was intended to punish for the sale of such
articles as were neither deleterious nor poisonous. Since
the text was written the Courts have passed upon this
question and have clearly established the correctness of
that position. In the case of U. S. vs. Johnson, 177 Fed-
eral, 313, Judge Phillips held that a medical prepara-
tion cannot be said to be misbranded and its sale or ship-
ment in interstate commerce a criminal offense under
this act merely because of a misrepresentation on the
label as to its curative effect. This case was carried to
the Supreme Court by the United States under the Act
of March 2, 1907, 34 Stats. 1246, and that Court, in U.
S. vs. Johnson, 221 U. S., 488, affirmed Judge Phillips'
decision and held that a statement on the labels of
bottles of medicine that the contents are effective as a
cure for cancer, even if misleading, is not covered by the
statute. To the same effect is^the decision in the case
of Lexington Mill & Elevator Co. vs. U. S., 202 Federal,
615, where it was held that bleached flour must be in-
jurious to health before its shipment in interstate com-
merce is violative of this statute. Under the authority
of U. S. vs. Hipolite Egg Co., 220 U. S., 45, the Act is
construed to prevent the shipment of inhibited articles,

Foods and .Drugs. 625

even though they are not transported for sale and that
Section 10 applies not only to the article itself, but to all
ingredients thereof.

Decomposed canned eggs which are not denatured and
therefore can be used either for food or tanning pur-
poses cannot be shipped in interstate commerce from one
warehouse of the owner to another without violating this
law, even though it be contended that the owner intend
ed that they should be used only for tanning purposes.
U. S. vs. 13 Crates, 208 Federal, 950.

Oysters, although shipped unopened and as taken
from the water, may come within the prohibitions where,
by reason of the condition of the waters in which they
are grown, they contain harmful bacteria which renders
them filthy, decomposed or putrid, and therefore adulter-
ated within the meaning of subdivision 6 of Section 7
of the Act. U. S. vs. Sprague, 208 Federal, 419.

A sale and shipment from Ohio to Washington of a
bottle of medicine containing cocaine, without a label in-
dicting its presence, the seller knowing when he solicited
the order that the transaction, if completed, would neces-
sitate interstate transportation, was interstate commerce,
whether the sale was made before or after shipment,
and is within the law. U. S. vs. Tucker, 188 Federal, 741.

For a fact case on lemon extract, see U. S. vs. Frank,
189 Federal, 195.

Sec. 386 a. a. Decisions Continued.

For cases on civil libel, pepper, U. S. vs. Six Barrels,
253 F. 199; insecticide, Parke Davis vs. U. S., 255 F. 933;
Coco cola case, U. S. vs. Forty Barrels, U. S. Sup. Ct.
May, 1916; candy, U. S. vs. Watson, 251 F. 310; U. S.
vs. Direct Sales Company, 252 F. 882.

The branding must be both false and fraudulent, U.
S. vs. Tuberclecide Company, 252 F. 938; Hall vs. U. S.,
267 F. 795; Bradley vs. U. S., 264 F. 79; Weeks vs. U.
S., February 1918, U. S. Sup. Ct.

At the trial other offenses may be proven, when
Mitchell vs. U. S., 229 F. 357.

An article which shows by the label to be unfit is not
in violation of the statute, U. S. vs. W. W. Fishing Com-
pany, 224 F. 274.

. 40

626 Federal Criminal Law Procedure.

The United States attorney must verify his libels and
a notary public is not known to the United States stat-
utes, U. S. vs. Schallinger, 230, F. 290.

The food and drugs act is constitutional, Seven Cases
vs. U. S., U. S. Sup. Ct. October Term, 1915.

For rules as to determination of medical opinion, testi-
monials and misbranding see McLean vs. U. S., 253 F.
694.

For a definition of when an article is misbranded see
U. S. vs. Schider, U. S. Sup. Ct. April, 1918, and for an
indictment for misbranding see Simpson vs. U. S., 241
F. 841.

For decisions treating of the curative powers of reme-
dies and the difference between remedies and cure see
U. S. vs. Natura Company, 250 F. 925; Eleven vs. U.
S., 233 F. 71.

For treatment of motions to release misbranded
articles and the holding that such release is discretionary
see U. S. vs. Two Cans, 268 F. 866.

False representations in circulars enclosed within the
package cannot be considered as violations of the Food
and Drugs act of June 30, 1906, relating to misbranding,
U. S. vs. Newton, 275 F. 394.

§ 386b. Misbranded Under New Amendment. — By
the Act of August 23, 1912, Section 8 of the original Act
was so amended as to read as follows:

"Sec. 8. That the term misbranded as used herein, shall apply to
all drugs or articles of food or articles which enter into the composi-
tion of food, the package or label of which shall bear any statement,
design or device regarding such article, or the ingredients or sub-
stances contained therein, which shall be false or misleading in any
particular, and to any food or drug product which is falsely branded
as to the State, territory, or country in which it is manufactured or
produced.

"That for the purpose of this Act an article shall also be deemed to
be misbranded. In case of drugs: First. If it be an imitation of or
offered for sale under the name of another article. Second. If the
contents of the package as originally put up shall have removed, in
whole or in part, and other contnets shall have been placed in such
package, or if the package fail to bear a statement on the label of
the quantity or proportion of any alcohol, morphine, opium, cocaine,
heroin, alpha or beta eucaine, chloroform, cannabis indica, chloral
hydrate, or acetanilide or any derivative or proportion of any such sub-

Foods and Drugs. 627

stance contained therein. Third. If its package or label shall bear or
contain any statement, design or device regarding the curatice or
therapeutic effect of such article or any of the ingredients or substances
contained therein, which is false and fraudulent." (37 Stats. L. 416,
page 146, 1914 Fed. Stats. Ann.).

In the case of U. S. vs. American Laboratories, 222 Fed-
eral, 104, it was held that Congress had the power to
enact this Amendment.

In that same case it was held that one may not be con-
victed merely because he advocates a theory of medicine
which at the time has not received the sanction of the
medical profession, but one guilty of fraud may not
escape conviction merely because someone may honestly
believe^ in the theory which he fraudulently sets forth.
A difference of this sort is one of fact for the jury, as
is also the charge of misbranding.

On March 3, 1913, the Congress added another Amend-
ment to the Act of 1906 by changing the original third
section thereof to read as follows:

"Sec. 3. If in package form the quantity of the contents, be not
plainly and conspiciously marked on the outside of the package in
terms of weight, measure or numerical count; provided, however, that
reasonable variations shall be permitted and tolerances and also ex-
emptions as to small packages shall be established by rules and regula-
tions made, in accordance with the provisions of Section 3 of this Act."
[37 Stats. L. 732, page 146, 1914 Fed. Stats. Ann.].

§ 387. Importation of Opium. — The Act of February
9, 1909, Chapter 100, 35 Stat. L., 614, reads as follows:

"Sec. 1. That after the first day of April, ninteen hundred and
nine, it shall be unlawful to import into the United States opium in
any form or any preparation or derivative thereof; Provided, That
opium and preparations and derivatives thereof, other than smoking
opium or opium prepared for smoking, may be imported for medicinal
purposes only, under regulations which the Secretary of the Treasury
is hereby authorized to prescribe, and when so imported shall be sub-
ject to the duties which are now or may hereafter be imposed by law.

"Sec. 2. That if any person shall fraudulently or knowingly import
or bring into the United States or assist in so doing, any opium or
any preparation or derivative thereof contrary to law, or shall receive,
conceal, buy, sell, or in any manner facilitate the transportation, con-
cealment, or sale of such opium or preparation or derivative thereof

628 Federal Criminal Law Procedure.

after importation, knowing the same to have been imported contrary
to law, such opium or preparation or derivative thereof shall be for-
feited, and shall be destroyed, and the offender shall be fined in any
sum not exceeding five thousand dollars nor less than fifty dollars,
or by imprisonment for any time not exceeding two years, or both.
Whenever, on trial for a violation of this section, the defendant is
shown to have, or to have had, possession of such opium or prepara-
tion or derivative thereof, such possession shall be deemed sufficient
evidence to authorize conviction unless the defendant shall explain
the possession to the satisfaction of the jury."

§ 387a. Additional Opium Statutes. — The Act of Jan.
uary 17, 1914, provided that "On or after July 1, 1913,
smoking opium or opium prepared for smoking, found
within the United States shall be presumed to have been
imported after the 1st day of April, 1909, and the bur-
den of proof shall be on the claimant or the accused to
rebut such presumption." Sections 8800-8801f, U. S.
Compiled Statutes.

Section 1 of the Act of January 17, 1914, provides,
"That an internal revenue tax of $300 per pound shall
be levied and collected upon all opium manufactured in
the United States for smoking purposes; and no person
shall engage in such manufacture who is not a citizen
of the United States and who has not given the bond re-
quired by the Commissioner of Internal Revenue. Every
person who prepares opium suitable for smoking purposes
from crude gum opium, or from any preparation thereof,
or from the residue of smoked or partially smoked opium
commonly known as yen shee, or from any mixture of
the above, or any of them, shall be regarded as a manu-
facturer of smoking opium within the meaning of this
Act."

Section 2 provides certain regulations for the conduct
of the business, including a bond in the sum of $1000.

Section 3 provides for certain stamps that shall be
placed on the manufactured product, as does also Sec-
tion 4.

Section 5 provides as follows: "That a penalty of
not less than ten thousand dollars or imprisonment for
not less than five years or both, in the discretion of the
Court, shall be imposed for each and every violation of

Foods and Drugs. 629

the preceding sections of this Act, relating to opium by
any person or persons; and all opium prepared for smok-
ing wherever found within the United States without
the stamps required by this Act, shall be forfeited and
destroyed.

The Circuit Court of Appeals in Shelly vs. U. S., 198
Federal, 88, had held that the mere mixing of smoking
opium with the residue of opium that has been smoked,
and heating the same, was not a manufacture of opium
for smoking purposes, within the meaning of the inter-
nal revenue Act of 1890 which imposed a tax on smok-
ing opium and regulated the business of its manufac-
ture. It would appear that Congress answered this de-
cision by providing the Act just above quoted wherein
it is said that the preparation of opium suitable for
smoking purposes from crude gum opium or from any
preparation thereof, or from the residue of smoked or
partially smoked opium, etc., shall be regarded as a
manufacture within the meaning of the Act.

In Marks vs. U. S., 196 Federal, 476, it was held under
the old statute that any process by which crude opium
is converted into a product fit for smoking constitutes
a manufacture of smoking opium, but the limiting of
the Marks decision by the Shelly decision made the new
opium Act most understandable and any mixture what-
soever of opium which may be smoked will now be con-
sidered a manufacture thereof.

Under the old law the offense of illegal importation
was committed whenever the smoking opium was fraud-
ulently and knowingly brought within the territorial
limits of the United States, although the opium may not
have been landed from the ship or carried across the
custom lines, U. S. vs. Caminata, 194 Federal, 903.

§ 387b. These Statutes Constitutional.— The Act of
1909, and the Act of January 17, 1914, which declare
certain presumptions against the defendant, are held
to be constitutional in the case of U. S. vs. Yee Fing,
222 Federal, 154, and that they do not deny due process
of law, provided in the case there is a rational connec-
tion between the facts proved and the Facts therefrom

630 Federal Criminal Law Procedure.

inferred, and provided the party affected is free to op-
pose them.

Sec. 387 b. b. Opium Decisions.

For rule of construction of the statutes see U. S. vs.
Sischo, 262 F. 1001.

For an invalid indictment against Chinamen and of-
fenses individual see Lee vs. U. S., 240 F. 408.

For many questions relating to prosecutions under
these statutes see Lee Lin vs. U. S., 250 F. 694.

For consumers rights see U. S. vs. "Woods, 224 F. 278.

Possession constitutes the offense unless the possessor
rebuts the presumption, U. S. vs. Johnson, 228 F. 251.

Under these statutes the government must show that
the commissioner had required a bond, the existence of
a stamp, etc., Chin Sing vs. U. S., 227 F. 397.

The court will take judicial notice that opium is not
grown in the United States, U. S. vs. Brown, 224 F. 135.

CHAPTER XXI.

PANDERING AND PROHIBITING IMMORAL USE OF WOMEN AND

GIRLS.

§ 388. The Act of February 20, 1907, Prohibiting Importation for
Prostitution.

389. Decisions.

389a. Additional Decisions.

390. Importing Contract Labor.

391. Pandering.

392. White Slave Act.

392a. Decisions Under White Slave and Pandering Act.
392b. Harboring Prostitutes and Making Reports Thereof.

§ 388. The Act of February 20, 1907, 34 Stat. L.,
898, contains forty-four sections, relating to immigra-
tion. It prohibits the importing of women for prosti-
tution, the importing of contract labor, the advertising
for labor abroad, the soliciting by vessel owners, and the
illegal landing of aliens. Sections 3 and 4 of the Act are
the ones most frequently made use of to cleanse, as far
as possible, the stream of immigration. Section 3 reads
as follows:

"Sec. 3. That the importation into the United States of any alien
woman or girl for the purpose of prostitution, or for any other im-
moral purpose, is hereby forbidden; and whoever shall, directly or
indirectly, import, or attempt to import, into the United States, any
alien woman or girl for the purpose of prostitution, or for any other
immoral purpose, or whoever shall hold or attempt to hold any such
woman or girl for any such purpose in pursuance of such illegal im-
portation, or whoever shall keep, maintain, control, support, or harbor
in any house or other place, for the purpose of prostitution, or for
any other immoral purpose, any alien woman or girl, within three years
after she shall have entered the United States, shall, in every such
case, be deemed guilty of a felony, and on conviction thereof be im-
prisoned not more than five years and pay a fine of not more than five
thousand dollars; and any alien woman or girl who shall be found an
inmate of a house of prostitution or practicing prostitution, at any
time within three years after she shall have entered the United States,
shall be deemed to be unlawfully within the United States, and shall
be deported as provided by sections twenty and twenty-one of this
Act."

(631)

632 Federal Criminal Law Procedure.

§ 389. Decisions. — Judge Hough, in United States
vs. Bitty, 155 Federal, 938, held that the words "any
other immoral purpose," as used in the above section
must be construed with reference to the preceding word
"prostitution," and to relate only to a like immoral
purpose, and, so construed, cannot be held to include
concubinage; and he, therefore, sustained a demurrer to
the indictment. The Government went, by writ of
error, direct to the Supreme Court of the United States,
by virtue of the Act of March 2, 1907, 34 Stat. L., 1246,
authorizing writs of error by the United States, and the
Supreme Court held, in United States vs. Bitty, 208 U.
S., 393, 52 Law Ed., 544, that the importation of an alien
woman into the United States in order that she may
live with the person importing her, as his concubine,
is for an immoral purpose, within the meaning of the
above section, making it a crime against the Unitr
States to import alien women for the purpose of prosti-
tution, or for any other immoral purpose.

In Keller vs. United States, 213 U. S., 138, the Su-
preme Court held that that portion of the above section
which makes it a felony to harbor alien prostitutes
was unconstitutional, as to one harboring such a prost:
tute without knowledge of her alienage, or in connection
with her coming into the United States, as a regulation
of a matter within the police power reserved to the state,
and not without any power delegated to Congress by the
Constitution. The portion, therefore, of the section held
to be unconstitutional on this state of facts, begins at
the words "whoever shall keep," and ends with the
words "not more than five thousand dollars."

In line with this decision was the case of ex parte
Lair, 177 Federal, 789, which held that in so far as the
section provides for the criminal punishment of th3
mere keeping maintaining, supporting, or harboring an
alien woman within three years after entry for the pur-
poses of prostitution, it is unconstitutional, such offense
being within the police power of the State, and not sub-
ject to Congressional regulation. That case also held
that the Act of March 3, 1903, 32 Stat. L., 1214, in so
far as it places no limitation on the length of the hold-

Pandering, Etc. 633

ing of a female alien for prostitution, for which the
holder might be prosecuted, was repealed by the Act
under discussion. That case also held that the venue
for the importing of a female for immoral purposes
was within the district of the seaport where the alien
first landed and entered the United States. In the case
of United States vs. Sibray, 178 Federal, 144, the Court
held, upon a writ of habeas corpus, that a warrant by
an immigration inspector under the Act, which author-
izes the inspectors to proceed without going before any
other United States Courts or United States Commis-
sioner, while not required to have the formality and
particularity of an indictment, it must, in charging that
the relator was an alien who was a member of the ex-
cluded class, in that he imported a woman for immoral
purposes, and that he had been convicted of, or had
admitted, having committed a felony or other crime or
misdemeanor involving moral turpitude, prior to his
entry into the United States, was fatally defective for
failure to specify the specific act or acts which it was
claimed brought the relator within the excluded classes. In
other words, the decision throughout demands that such
warrants must state facts, and not mere conclusions.
The Court also held that proof that an alien, prior to
his emigration, committed a single act of adultery or
fornication in the country from which he came, was in-
sufficient to justify his deportation as an alien having
been convicted of, or having admitted, committing a
felony or other crime or misdemeanor involving moral
turpitude; also that an alien living in adultery within
the United States is not ground for deportation; such
conduct being solely within the police power of the stat-
ute. See also United States vs. Sibray, 178 Federal,
150, where it was held that a warrant for a woman stating
generally that she entered the United States for an im-
moral purpose, was not sufficiently specific.

§ 389a. Additional Decisions Under Act of February
20, 1907.— All that portion of Section 3 of the Act of
February 20, 1907, reading as follows: "Whoever shall
keep, maintain, control, support, or harbor in any house
or other place for the purpose of prostitution or for any

634 Federal Criminal, Law Procedure.

other immoral purpose, any alien woman or girl, with-
in three years after she shall have entered the United
States, shall in every such case be deemed guilty of a
felony, and on conviction thereof be imprisoned not more
than five years and pay a fine of not more than $5,000,"
is declared to be unconstitutional by the Supreme Court
of the United States, in Jeller vs. U. S., 213 U. S. 138.
for the reason that while Congress has power to exclude
aliens from and to prescribe the terms and conditions
on which aliens may come into the United States, that
power does not extend to controlling dealings with aliens
after their arrival, merely on account of their alienage.
That portion of the Act of February 20th, quoted above,
is unconstitutional because it is the attempt to regu-
late a matter within the police power reserved to the
State, and not within any power delegated to Congress
by the Constitution.

'The Act of March 26, 1910, 36th Statute 264, reads as
follows: "Any alien who shall be found an inmate of or
connected with the management of a house of prostitu-
tion, or practicing prostitution, after such alien shall

have entered the United States shall be deemed to

be unlawfully within the United States, and shall be de-
ported in the manner provided by Sections 20 and 21 of
this Act," thereby doing away with the three year limi-
tation of time provided for in the last paragraph of th^
original Section 3. In other words, when an alien is found
engaged in the inhibited practices, irrespective of the
length of time in the United States, deportation may be
had. U. S. vs. Prentis, 182 Federal, 894; U. S. vs. Weis,
181 Federal, 860.

Under the authority of United States vs. Lavoie, 182
Federal, 943, which was a prosecution under the first part
of Section 3 for importing for the purpose of prostitu-
tion an alien woman, a space of time elapsing after
importation of as much as two years, and then the re-
sumption of illegal relations, such illegal relations will
not be held to be pursuant to the illegal importation.
Prosecution for illegal importation under this section
should be had in the district of the port where the

Pandering, Etc. 635

ailen was landed. U. S. vs. Krsteff, 185 Federal, 201;
U. S. vs. Lavoie, 182 Federal, 943.

Sec. 389 b. Additional Decisions.

Crossing the line of a state and returning* to the first
state with the girl is no offense under the authority of
Fisher vs. U. S., 266 F. 667 and U.. S. vs. Wilson/ 266
F. 712.

The indictment may fix the venue by -the place from
which transportation was made, Yeates vs. U. S., 254 F. 60.

An indictment which charges the offense in the lan-
guage of of the statute is held good in Huffman vs. U. S.,
259 F. 35; also in the case of U. S. vs. Brand, 229 F. 847.
In the case of Elrod vs. U. S., 266 F. 55, it was held that
an excursion with a girl from one state to another where
they engaged in immoralities was sufficient to go to the
jury notwithstanding there were no commercial relations
between the parties.

Venue and intent are regulated by the inception of the
journey, Biggerstaff vs. U. S., 260 F. 926. Appropriate
instructions should be given as to the purpose of the
transportation, Griffith vs. U. S., 261 F. 159; as to ques-
tions of evidence, etc., see Blackstone vs. U. S., 261 F.
150.

An indictment saying "purpose" and not "intent"
was held good in Carey vs. U. S., 265 F. 515.

An auto driver who serves men and women carrying
them across the state line is guilty of a violation of this
statute, Freed vs. U. S. 266 F. 1012; auto transportation
is a violation, Growling vs. U. S., 269 F. 215; IT. S. vs.
Burch, 226 F. 974. The instruction of the court should
not limit the government 's duty in the matter of showing
inducement and if it does do so it will be reversable error,
England vs. U. S., 272 F. 102.

The woman in the case is an accomplice and it is the
duty of the court to charge thereon, was held in Freed
vs. U. S., 266 F. 1012; but there was a different holding
in Hays vs. U. S., 231 F. 106.

The intent and purposes must be specifically alleged
and proven, Gillette vs. U. S., 236 F. 215.

636 Federal Criminal Law Procedure.

A trip for immoral purposes alone, which is in inter-
state commerce, is a violation, Caminetti vs. U. S., U.
S. Sup. Ct. Nov. 1916.

Though the defendant accompanied the woman when
she went to be confined it would not necessarily make
him guilty, Van Pelt vs. U. S., 240 F. 347.

For taking a negro girl see Young vs. U. S., 242 F.
788.

In a prosecution under these statutes it may be shown
that the defendant had others engage in prostitution
Kinser vs. U. S., 231 F. 856.

The ignorance of the girl as to the purpose is no
defense, Prdjun vs. U. S., 237 F. 799.

For a case where co-conspirators testified for the state
see Heitler vs. IT. S., 244 F. 140.

Inducing one to go from one state to another state to
open a house of prostitution is a violation, Simpson vs.
U. S., 245 F. 278.

Under the White Slave Act the offense of transporting
a woman in interstate commerce for the purpose of pros-
titution is complete when the transportation has been
accomplished without regard to whether later the pur-
pose is accomplished; one cannot be convicted for aiding
and abetting an offense of which he had no knowledge
until after it was complete, Rizzo vs. U. S., 275 F. 51.

Hiring girls in the United States to go to Mexico to
work in a dance hall where liquors are sold and prosti-
tutes are waiters is a violation, Beyer vs. U. S., 251 F. 40.

§ 390. Importing Contract Labor. — Section 4 of the
Act reads as follows:

"That it shall be a misdemeanor for any person, company, partner-
ship, or corporation, in any manner whatsoever, to prepay the trans-
portation or in any way to assist or encourage the importation or mi-
gration of any contract laborer or contract laborers into the United
States, unless such contract laborer or contract laborers are exempted
under the terms of the last two provisions contained in section two
of this Act." [34 Stat. L., 900.].

See United States vs. Tsokas, 163 Federal, 129.
§ 391. Pandering.— The Act of June 25, 1910, to de-
fine and punish pandering, reads as follows:

Pandering, Etc. 637

"That any person who, by threats by himself, or through another,
induces, or by any device or scheme inveigles, any female into a
house of prostitution, or of assignation, in the District of Columbia,
against her will, or by any threat or duress detains her against her
will, for the purpose of prostitution or sexual intercourse, or takes
or detains a female against her will with intent to compel her by
force, threats, menace, or duresS to marry him, or to marry any other
person, or if any parent, guardian, or other person having legal cus-
tody of the person of a female consents to her taking or detention by
any person for the purpose of prostitution or sexual intercourse, is
guilty of pandering, and shall be punished by imprisonment for a
term of not less than one nor more than five years and fined not
more than one thousand dollars.

"Sec. 2. That any person who, against her will, shall place any
female in the charge or custody of any other person or persons or in
a house of prostitution with the intent that she shall live a life of
prostitution, or any person who shall compel any female, against her
will, to reside with him or with any other person for the purpose of
prostitution, or compel her against her will to live a life of prostitu-
tion, is guilty of pandering and shall be punished by a fine of not
less than one thousand dollars and imprisonment for not less than
one nor more than five years.

"Sec. 3. That any person who shall receive any money or other valu-
able thing for or on account of procuring for or placing in a house of
prostitution or elsewhere any female for the purpose of causing her
illegally to cohabit with any male person or persons shall be guilty of
a felony, and upon convision thereof shall be imprisoned for not less
than one nor more than five years.

"Sec. 4. That any person who by force, fraud, intimidation, or
threats places or leaves, or procures any other person or persons to
place or leave, his wife in a house or prostitution, or to lead a life
of prostitution, shall be guilty of a felony, and upon conviction thereof
shall be imprisoned not less than one nor more than ten years.

"Sec. 5. That any person or persons who attempt to detain any girl
or woman in a disorderly house or house of prostitution because of any
debt or debts she has contracted, or is said to have contracted, while
living in said house of prostitution or disorderly house shall be guilty
of a felony, and on conviction thereof be imprisoned for a term not
less than one nor more than five years."

Pandering is denned by the Century Dictionary to
mean to cater for the lusts of others; to administer to
others' passions or prejudices for selfish ends; to pimp
for; one who administers to the gratification of any of
the baser passions of others. It is sometimes written
pandar, formerly pandor, and was doubtless taken from

638 Federal, Criminal Law Procedure.

the name of a man, Pandare, who procured for Troilus
the love and good grace of Cressida.

§ 292. White Slave Act.— The Act of June 25, 1910,
entitled an Act to further regulate interstate and foreign
commerce by prohibiting the transportation therein for
immoral purposes of women and girls, and for other pur-
poses, was directed at what is called the "White Slave"
evil, and as far as it relates to the criminal features, is
as follows:

"That the term 'interstate commerce,' as used in this Act, shall
include transportation from any State or Territory or the District of
Columbia to any other State or Territory or District of Columbia, and
the term 'foreign commerce,' as used in this Act, shall include trans-
portation from any State or Territory or the District of Columbia to
any foreign country and from any foreign country to any State or
Territory or the District of Columbia.

"Sec. 2. That any person who shall knowingly transport or cause
to be transported, or aid or assist in obtaining transportation for, or
in transporting, in interstate or foreign commerce, or in any Territory
or in the District of Columbia, any woman or girl for the purpose of
prostitution or debauchery, or for any other immoral purpose, or with
the intent and purpose to induce, entice, or compel such woman or girl
to become a prostitute or to give herself up to debauchery, or to
engage in any other immoral practice; or who shall knowingly pro-
cure or obtain, or cause to be procured or obtained, or aid or assist in
procuring or obtaining, any ticket or tickets, or any form of trans-
portation or evidence of the right thereto, to be used by any woman or
girl in interstate or foreign commerce, or in any Territory or the
District of Columbia, in going to any place for the purpose of prosti-
tution or debauchery, or for any other immoral pui-pose, or with the
intent or purpose on the part of such person to induce, entice, or
compel her to give herself up to the practice of prostitution, or to
give herself up to debauchery, or any other immoral practice, whereby
any such woman or girl shall be transported in interstate or foreign
commerce, or in any Territory or the District of Columbia, shall be
deemed guilty of a felony, and upon conviction thereof shall be punished
by a fine not exceeding five thousand dollars, or by imprisonment
of not more than five years, or by both such fine and imprisonment
in the discretion of the court.

"Sec. 3. That any person who shall knowingly persuade, induce,
entice, or coerce, or cause to be persuaded, induced, enticed, or co-
erced, or aid or assist in persuading, inducing, enticing, or coercing
any woman or girl to go from one place to another in interstate or
foreign commerce, or in any Territory or the District of Columbia,
for the purpose of prostitution or debauchery, or for any other immoral
purpose, or with the intent and purpose on the part of such person thar

Pandering, Etc. 639

such woman or girl shall engage in the practice of prostitution or
debauchery, or any other immoral practice, whether with or without
her consent, and who shall thereby knowingly cause or aid or assist
in causing such woman or girl to go and to be carried or transported
as a passenger upon the line or route of any common carrier or car-
riers in interstate or foreign commerce, or any Territory or the Dis-
trict of Columbia, shall be deemed guilty of a felony, and on con-
viction thereof shall be punished by a fine of not more than five,
thousand dollars, or by imprisonment for a term not exceeding five
years, or by both such fine and imprisonment in the discretion of
the court.

"Sec. 4. That any person who shall knowingly persuade, induce,
entice, or coerce any woman or girl under the age of eighteen years
from any State or Territory or the District of Columbia, with the
purpose and intent to induce or coerce her, or that she shall be in-
duced or coerced to engage in prostitution or debauchery, or any other
immoral practice, and shall in furtherance of such purpose knowingly
induce or cause her to go and to be carried or transported as a
passenger in interstate commerce upon the line or route of any common
carrier or carriers, shall be deemed guilty of a felony, and on convic-
tion thereof shall be punished by a fine of not more than ten thousand
dollars, or by imprisonment for a term not exceeding ten years, or by
both such fine and imprisonment, in the discretion of the court.

"Sec. 5. That any violation of any of the above sections two, three,
and four shall be prosecuted in any court having jurisdiction of crimes
within the district in which said violation was committed, or from,
through, or into which any such woman, or girl may have been car-
ried or transported as a passenger in iterstate or foreign commerce,
or in any Territory or the District of Columbia, contrary to the pro-
visions of any of said sections."

§ 392a. Decisions Under White Slave and Pandering
Act. — The legislation is constitutional. U. S. vs. Hoke,
187 Federal, 992; Hoke vs. U. S., 227 U. S., 308; Kalen
vs. U. S., 196 Federal, 888; Paulsen vs. U. S., 199 Federal,
423; Bennett vs. U. S., 194 Federal, 630; affirmed in Ben-
nett vs. U. S., 227 U. S., 333. The right to be transport-
ed in interstate commerce is not a right to employ inter-
state transportation as a facility to do wrong, and the
Congress may prohibit such transportation to the extent
of the White Slave Traffic Act. Hoke vs. U. S., 227 U.
S., 308. One may violate the Act through a third party
acting for him. Hoke vs. U. S., 227, 309. The transporta-
tion inhibited by the Act is not confined to transportation
by common carrier, nor need such a limitation be em-
ployed in order to sustain the constitutionality of the Act.

640 Federal Criminal Law Procedure.

Wilson vs. U. S., 232 U. S., 563. The debauchery used
in the statute means sexual intercourse, or that the Act
does not extend to any vice or immorality other than
that applicable to sexual actions. Athanasaw vs. U.
S., 227 U. S., 326. The woman is an accomplice, Diggs
vs. U. S., 220 Federal, 546. The woman who is the victim
niay be indicted for a conspiracy to act as such victim.
U. S. vs. Holte, 236 U. S., 140. This holding opens a
new method for rendering prosecutions futile, because
if the woman may be indicted she may claim her con-
stitutional privilege not to testify, and thereby the pro-
secution will be deprived of the one who is most often
its most valuable witness. The old rule that the spouse
cannot testify against the husband unless it relate to
injuries to herself, is recognized by the Courts in cases
under this statute, and it is held that where a husband
persuades his wife to go from one State to another for
the immoral purpose of the Act she may testify against
him, because such a transaction is a personal injury to
her person. U. S. vs. Rispoli, 189 Federal, 271; U. S.
vs. Gwynne, 209 Federal, 993. The exception, therefore,
which permits a wife to testify against her husband as
to injuries received to her own person only, allows such
testimony when the offense was committed at the time
that she was in fact his wife. In other words, the wife
would not be permitted to testify against 'her husband
to facts or injuries to her person that occurred before
she became his wife. One who transported a woman
in interstate commerce in violation of the section under
discussion, and after such violation married her, would
thereby protect himself against her testimony, because
the offense against her person occurred when she was
not his wife, and having become his wife, she is prevent-
ed from disclosing anything to his deteriment, except
such as would detail an injury to her when she was his
wife. U. S. vs. Gwynne, 209 Federal, 994. The exception
deals with the parties in the marriage relation and not as
to acts ommitted before the marriage. Public policy
is the basis of the rule and the relaxation of the rule
grows out of the necessity of protecting the wife from
personal or other injury at the hands of the husband

Pandering, Etc. 641

during the marital relation. Against this reasoning,
however, is the case of Johnson vs. U. S., 221 Federal,
250, which is a ranking case since it is by the C. C. A.
8th Circuit and holds to the old common-law rule that
wife cannot testify against her husband. Reverses 215
Federal, 679.

A trip made from one State to another for the purpose
of illicit cohabitation is in violation of this Act. U.

5. vs. Flashpoller, 205 Federal, 1006. Diggs vs. U. S.,
220 Federal, 545. Witnesses testifying are liable to all
of the usual tests for veracity, such as lack of virtue,
etc. Filasto vs. U. S., 211 Federal, 329. One may be
sentenced after conviction under this statute in a pen-
itentiary for a longer or shorter period than one year.
U. S. vs. Thompson, 202 Federal, 346. For other fact
cases, see Weddel vs. U. S., 213 Federal, 208; Johnson
vs. U. S., 215 Federal, 679; Harris vs. U. S., 194 Federal,
634; affirmed in 227 U. S. 340; Bennett vs. U. S., 194
Federal, 630; affirmed in 227 U. S., 333. Suslak vs. U.

6, 213 Federal, 913; Welsch vs. U. S., 220 Federal, 764.
Sec. 392 a. a. Decisions Permitting Wife to Testify,

Continued.

Under section 392 a. there is a discussion of the rule
with respect to a wife testifying against her husband
during a prosecution under these statutes when she is
the woman in the case. In that discussion the Johnson
case, 221 F. 250, is cited. That case is criticised in Pap-
pas vs. U. S., 241 F. 665, by the Circuit Court of Appeals
for the ninth circuit and the doctrine is laid down that
the wife may testify against her husband on the ground
that such a transaction is a personal injury to her and
cites their former decision in Cohen vs. U. S., 214 F.
23, to the same effect, from which a certiorari was denied
by the Supreme Court, 235 U. S., 696, 35 Sup. Ct. Rep. 199.

To the same effect is Denning vs. U. S., 247 F. 463;
U. S. vs. Bozeman, 236 F. 432, and 235 U. S. 696.

So the rule seems to stand as announced by the writer
in 1910, in Sec. 392 a, that the wife may testify to what
occurred while she was the wife but cannot testify to
what occurred before she was the wife.

642 Federal Criminal Law Procedure.

§ 392b. Harboring Prostitutes and Making Reports
Thereof. — The statement required by the Act of June
25, 1910, to be made to the Commissioner General of Im-
migration, giving certain facts with reference to alien
females held for immoral purposes, requires the making
of such statements only when such females are from the
countries who are parties to the arrangement to file such
statement, and an indictment which failed to show that
a female so harbored is from one of such countries is
fatally defective. U. S. vs. Davin, 189 Federal, 244.
If one violates the provisions of this Act he is guilty
thereunder, even though he is not also guilty of pro-
curing the entry of such female into the United States.
U. S. vs. Davin, 189 Federal, 244. See also same case
for form of indictment. The doctrine that one must file
this statement even though such person did not import
the alien female, directly or indirectly, is affirmed in the
case of U. S. vs. Portale, U. S., Supreme Court, Oct. Term,
1914, page 1.

Sec. 392 b. b. Harboring Prostitutes and Making Re-
ports Thereof, Continued.

The section with reference to the making of reports
is unconstitutional and is in violation of section 6, of
article 5, U. S. vs. Lombardo, 228 F. 980. The venue for
prosecution under the foreign provision is at Washing-
ton, D. C. the place where the "filing" is required, TJ.
S. vs. Lombardo, 228 F. 980; affirmed in U. S. vs. Lom-
bardo, 241 U. S. 73.

CHAPTER XXII.

SOME GENERAL PROVISIONS.

§ 393. Punishment of Death by Hanging.

394. No Conviction to Work Corruption of Blood or Forfeiture of
Estate.

395. Whipping and the Pillory Abolished.

396. Jurisdiction of State Courts.

397. Ilustrations.

398. Other Decisions.

399. Pardoning Power.

399a. Pardon, Acceptance of and President's Power.

400. Qualified Verdicts in Certain Cases.

401. Body of Executed Offender May be Delivered to Surgeon for

Dissection.

402. Who Are Principals.
402a. Aiding and Abetting.

403. Punishment of Accessories.

404. Felonies and Misdemeanors.

405 Omission of Words, "Hard Labor" Not to Deprive Court of

Power to Impose.
405a. Imprisonment, and Where.

406. Repealing Provisions.

407. Parole of United States Prisoners.
407a. For Construction of Parole Act.

408. Witnesses for Poor Accused.

409. Publicity of Contributions.

§ 393. Punishment of Death by Hanging.— Section
323 of the new Code, is in the exact word of old Statute
5325, to wit:

"Sec. 323. The manner of inflicting the punishment of death shall
be by hanging."

Sec. 393 a. Punishment, etc.

Punishment for "unreasonable charge" is not permit-
ted, U. S. vs. Cohen Grocery Company, 41 Sup. Ct. 300,
April, 1921.

§ 394. No Conviction to Work Corruption of Blood
or Forfeiture of Estate. — Section 324 of the new Code
is in the identical words of the old Statute 5326, as fol-
lows:

"Sec. 324. No conviction or judgment shall work corruption of
blood or any forfeiture of estate."

(643)

644 Federal Criminal Law Procedure.

In England, felony comprises every species of crime
which at Common-Law worked a forfeiture of goods and
lands.

§ 395. Whipping and the Pillory Abolished, — Section
325 of the new Code uses the words of old Statute 5327,
as follows:

"Sec. 325. The punishment of whipping and of standing in the
pillory shall not be inflicted."

§ 396. Jurisdiction of State Courts. — Section 326 of
the new Code uses the words of the old Statute 5328, as
follows:

"Sec. 326. Nothing in this Title shall be held to take away or im-
pair the jurisdiction of the courts of the several States under the
laws thereof."

The word "Title" used in the above section must neces-
sarily mean all of the sections in the new Code; that is,
from Section 1 to Section 325, inclusive. It could not be
limited to the few sections in Chapter XIV. of the new
Code, which treats alone of general and special provi-
sions.

Decisions. — The effort of the Courts to maintain the
sovereignty of the Federal and State Governments with-
out impingement from either side have been both com-
mendable and successful. It is true that at times the
line has been difficult to trace, and conflict seemed im-
minent, but careful reasoning and a thorough determina-
tion to preserve the autonomy and virgin jurisdiction
of each Government have usually triumphed. Even the
Supreme Court of the United States has not hesitated to
distinguish its own decisions so as to keep the line as
distinct as possible. In the case of New York vs. Eno,
155 U. S., page 89, hereinafter noticed, it became neces-
sary for the preservation of the State lines to distinguish
in re Loney, 134 U. S., 372, and the Court did so by an-
nouncing that the Loney decision was one of urgency,
which involved the authority and operation of the general
Government.

It may be announced as the general rule, gathered from
the decisions, that where there is an apparent conflict of

Some General Provisions 645

authority, and the State Court secures jurisdiction of
the person, that person must exhaust all State remedies
before appealing to the Federal Courts for relief. If,
however, as in the Loney case, immediate action is ur-
gent, not to the interests of the person, but to the in-
terests of the general Government, then and in that event
the Courts of the general Government will interfere be-
fore all State remedies have been exhausted. So, too,
if Congress has taken exclusive jurisdiction of an offense
interference by similar prosecutions in the State Courts
are not permitted.

Sec. 396 a. Jurisdiction of State Courts in Conflict
With Federal Courts.

For a discussion of the two sovereignties see Easton
vs. The State, 188 U. S., 220; 47 Law Ed. 452.

As to "comity" between the two sovereignties see U.
S. vs. Marrin, 227 F. 314.

A defendant under sentence in a state court and at
large on bail may be tried and convicted in the federal
court, U. S. vs. Vane, 254 F. 28.

The power of the United States Supreme Court to re-
view state court decisions is limited to federal questions,
Cincinnati vs. Kentucky, U. S. Sup. Ct. April 1920.

An acquittal in a state court is no defense nor evidence
in the federal Court, Martin vs. U. S., 271 F. 685.

The removal of internal revenue cases to the federal
courts under the authority of section 643 R. S. U. S. does
not authorize the removal of a case against a party who
had the approval of the United States Internal Revenue
Commissioner to sue, Shumpka, 268 F. 686.

Violations of the Volstead Act may be prosecuted in
both state and federal courts but, U. S. vs. Reagan, 273
F. 727.

It was held in ex parte Crook shank, 269 F. 980, that
the state may legislate more drastically, but not more
liberally than Congress on the same subject, the subject
being the Volstead Act; see also 270 F. 639 and 270 F. 665.

§ 397. Illustrations. — In the case of Cross vs. North
Carolina, 132 U. S., 140, 33 Law Ed., 287, the Supreme
Court held that where an officer of a national bank forged
a promissory note and entered it upon the books of the

646 Federal Criminal. Law Procedure.

bank for the purpose of sustaining false entries in the
books and in order to deceive the United States Bank
Examiner, he could be tried and convicted of forgery of
the note in the State Court although the offense of mak-
ing such false entries is one against the United States,
of which its Courts have exclusive cognizance. In other
[words, the crime of forgery against the State could not
'be excused or obliterated by committing another and
distinct crime against the United States; and the act,
or series of acts, constituting an offense equally against
the United States and the State, subjects the guilty party
to punishment under the laws of each Government. In
Thomas vs. Loney, 134 U. S., 377, 33 Law Ed., 949, the
Supreme Court of the United States discharged, upon
habeas corpus, applicant Loney from imprisonment under
a warrant of arrest from a justice of the peace of Vir-
ginia, upon a complaint charging him with perjury in
giving his deposition as a witness before a notary public
of the city of Richmond, in the case of a contested elec-
tion of a member of the House of Representatives of the
United States, and held, in substance, that the notary
public designated by Congress to take depositions in case
of a contested election of a member of the House of
Representatives of the United States, performs this func-
tion under the authority of Congress, and not under that
of the State, and testimony taken in such a case stands
on the same ground as if taken before a judge or officer
of the United States, and a witness giving his testimony
in such a case is accountable for the truth of his testi-
mony to the United States only, and the power to punish
such witness belongs exclusively to the Government in
whose tribunals that proceeding is had.

This case affirms the same case in 38 Federal, 101. In
the same report, on page 380, 33 Law Ed., 951, in the
case of Fitzgerald vs. Green, the Supreme Court reversed
the decision of the Circuit Court of the United States,
discharging upon habeas corpus Green from imprison-
ment under a judgment of the Court of Virginia, impos-
ed upon him for unlawfully voting for presidential elec-
tors, and held, in substance, that the State has the power
to punish for illegal and fraudulent voting for presi-

Some General Provisions 647

dential electors, because Congress lias never undertaken
to interfere with the manner of appointing electors, or
the mode of appointment prescribed by the law of the
State to regulate the conduct of such election, or to punish
any fraud in voting for electors, but has left these mat-
ters to the control of the States.

In McPherson vs. Blacker, 146 U. S., page 1; 36 Law
Ed., page 869, the Supreme Court of the United States
maintained its right, under Section 709 of the Revised
Statutes of the United States, to inquire into the method,
upon proper petition, pursued by a State in the selec-
tion of its presidential electors; and after so maintain-
ing its jurisdiction, determined that the Constitution did
not provide that the appointment of electors shall be by
popular vote, nor that the electors shall be voted for
upon a general ticket, nor that the majority of those
who exercise the elective franchise can alone choose the
electors, and that the appointment and mode of appoint-
ment of the electors was exclusively left to the States
under the Constitution of the United States, and upheld
the Michigan Act, even though the same was questioned
as being repugnant to the Constitution of the United
States.

In Pettibone vs. United States, 148 U. S., 197, 37 Law
Ed., 419, the Supreme Court held that persons cannot
be convicted of obstructing the administration of justice
in a Federal Court under United States Revised Statute
5399, because of a criminal intent on their part to commit
a crime against the State, in the deciding of which the
Court affirmed the doctrine that United States Courts
have no jurisdiction over offenses not made punishable
by the Constitution, laws, or treaties of the United States.

In the case of Ohio vs. Brooks, 173 U. S., page 299,
43 Law Ed., page 699, the Supreme Court discharged,
upon habeas corpus, Thomas, who was the Superintendent
of the United States Soldiers' Home, and who had been
convicted in the State Court for serving oleogarmarine
in violation of the State law, to disabled soldiers under
his charge at the said home, and held that the Governor
of a Soldiers' Home, which is under the sole jurisdiction
of Congress, even though jurisdiction has not been ceded

648 Federal Criminal Law Procedure.

to the land upon which the home is situated by the
State Legislature, is not subject to the State Law con-
cerning the use of oleomargarine when he furnishes that
article to the inmates of the home, as a part of the rations
furnished for them under appropriations made by Con-
gress therefor.

United States vs. Eno, 155 U. S., page 89, 39 Law
Ed., page 80, arose upon a writ or habeas corpus sued
out by Eno, who alleged that he was in the city prison
of New York City, by reason of certain bench warrants
issued upon indictment against him in a State Court
of New York for certain offenses over which the State
Courts had no jurisdiction; such offenses being the mak-
ing of false entries in the books of a national bank.
He was discharged by the Circuit Court of the United
States, and the State of New York appealed to the Su-
preme Court, which Court reversed the judgment of
the Circuit Court of the United States, and held, in sub-
stance, that the Circuit Court of the United States should
not, except in cases of urgency, discharge upon habeas
corpus from custody under warrants issued by a State
Court, one charged with the offense committed while
president of a national bank, of forgery by making false
entries in the books of the bank, with intent to defraud,
where he is not indicted in any Court of the United
States for such offense. The claim of the accused to
immunity from prosecution under the State Court should
be first passed upon by the highest Court of the State;
and if any Federal right is denied him, he may then take
the case to the Supreme Court of the United States for
redress.

In referring to the Loney case, 134 U. S., cited supra,
the Court said:

"It may be well to refer to the case of Thomas vs. Loney, 134 U. S.
It will be observed that this Court, in ex parte Royall, recognized cer-
tain cases as constituting exceptions to the general rule — among which
are cases of urgency, involving the authority and operations of the
general government. Loney's case was of that class. It appeared from
the record that he was duly summoned to give his deposition in a
contested election case, pending in the House of Representatives of
the Congress of the United States — a summons he was obliged to obey,
unless prevented by sickness or unavoidable accident, under the penalty

Some General Provisions 019

of forfeiting a named sum to the party at whose instance he was sum-
moned, and of becoming subject to fine and imprisonment, that he
appeared before a notary public in obedience to such summons, and
proceeded to give his deposition; and that while in the office of an
attorney, for the purpose of completing his testimony, he was ar-
rested under a warrrant issued by a justice of the peace based upon
the affidavit of one of the parties in the contested election case, charg-
ing him with wilful perjury, committed in his deposition It is

clear from this statement that that case was one of urgency, involving,
in a substantial sense, the authority and operations of the general
Government."

Exclusive Jurisdiction of the United States. — It will
be well, in considering this line of decisions, and ofttiines
in viewing just where the jurisdiction of the State Court
ends and the jurisdiction of the Federal Court begins,
and just where the Federal Court will exercise exclusive
jurisdiction, to bear in mind Section 711 of the Revised
Statutes of the United States; wherein the Courts of the
United States are given exclusive jurisdiction over such
matters as are therein named, to wit; all crimes and of-
fenses cognizable under the authority of the laws of
the United States; all suits for penalties and forfeitures
incurred under the laws of the United States; all civil
cases of admiralty and maritime jurisdiction; all seizures
under the laws of the United States on land or on sea;
all cases arising under the patent-right or copy-right
laws of the United States; all matters and proceedings
in bankruptcy; all controversies of a civil nature, where
a State is a party, except between a State and its citi-
zens, or between a State and citizens of other States or
aliens; and all suits or proceedings against ambassadors
or other public ministers or their servants, or against
consuls or vice consuls. See Hopkins Judicial Code, 1911.

§ 398. Other Decisions. — In United States vs. Lackey.
99 Federal, 952, which was a case arising upon prosecu-
tion for alleged violations of Section 5507 and 5508,
growing out of indictments for alleged interference with
the rights secured by the Fifteenth Amendment, the
Court held that neither the Fifteenth Amendment, nor
the statutes enacted for its enforcement, were intended
in any primary sense, to protect any right or interest of
the United States, and the fact that the national Govern-

650 Federal Criminal Law Procedure.

ment had no direct interest in an election does not affect
the applicability of such statutes, or constitute a defense
to an indictment for their violation in connection with
such election. In other words, this decision holds, and
it seems to be the law, that one may be prosecuted in
the Federal Courts for a violation of the acts of Congress
which are made to give life to the Fifteenth Amendment,
even though the rights interfered with under the Fifteenth
Amendment were civil rights under the State.

In in re Welch, 57 Federal, 576, Circuit Judge La-
combe held that the question as to whether the State
Court has jurisdiction over a pilot indicted for man-
slaughter, in causing the death of another person on
another boat, by causing the boat in his charge to collide
therewith, cannot be raised by an application for a writ
of habeas corpus, when the prisoner may raise it by
appeal or otherwise in the State Courts, and may carry
it thence, should the decision be advised, to the United
States Supreme Court by writ of error.

In in re Waite, 81 Federal, 359, District Judge Shiras
held that an officer or agent of the United States engaged
in the performance of a duty arising under the laws
and authority of the United States, is not liable to a
criminal prosecution in the Courts of a State for acts
done by him in his official capacity, and such agent or
officer need not wait to carry the case to the highest
Court, and then, by writ of error, to the United States
Supreme Court, but may have his release at once upon
habeas corpus, if necessary, since the operations of the
Federal Government would in the meantime be obstruct-
ed by the confinement of its officer. This decision was
affirmed in Campbell vs. Waite, by the Circuit Court of
Appeals for the Eighth Circuit, in 88 Federal, page 102.

In in re Miller, 42 Federal, 307, the Court held that
where a United States Marshal is arrested under State
authority, on a charge of forgery, the fact that at the time
of his arrest he was on his way to serve process issued by
a United States Commissioner, did not oust the State
authorities from jurisdiction, where it does not appear
that he was arrested for any act done in pursuance of

Some General Provisions 651

Federal authority, or with the intent to interfere with
the service of the process in his hands.

The case of ex parte Geisler, 50 Federal, 411, recites the
clause in the counterfeiting statute which authorizes
prosecution for that offense in the State Courts, and holds,
of course, that the State Courts have power to punish
counterfeiting under the State statutes.

§ 399. Pardoning Power — Section 327 of the new
Code is in the exact words of old Section 5330, and reads
as follows:

"Sec. 327. Whenever, by the judgment of any court or judicial
officer of the United States, in any criminal proceeding, any person is
sentenced to two kinds of punishment, the one pecuniary and the
other corporeal, the President shall have full discretionary power to
pardon or remit, in whole or in part, either one of the two kinds
without, in any manner, impairing the legal validity of the other kind,
or of any portion of either kind, not pardoned or remitted."

This section does not mean that a pardon releases the
offender from all of the disabilities imposed by the of-
fense, to the extent of undoing any rights which have
vested in others directly, as property rights, Knote vs.
United States, 94 U. S., 157, 24 Law Ed., 442.

Under the rules of the Department of Justice, those
who seek pardons should make their applications direct
to the President, who, in turn, refers the papers to the
Attorney General, who thereafter refers them to the
District Attorney in the proper District, with instruc-
tions to report thereon, and obtain, if possible, the views
of the trial Judge. Both trial Judges and District At-
torneys are requested by the Department of Justice not
to make recommendations or give letters for commuta-
tion until requested so to do by the Department of Justice.

§ 399a. Pardon — Acceptance of — and President's
Power. — In order that a pardon be effective it must bex
accepted. Burdick vs. U. S., 236 U. S., 79. Over-
ruling U. S. vs. Burdick, 211 Federal, 493. The Presi-
dent's power with reference to pardons is constitutional
and cannot be abridged by Congress. Thompson vs.
Duehay, 217 Federal, 484. The Parole Act of June 25,
1910, 36th Statute at Large, 819, will not be so construed
as to interfere in any way whatsoever with the constitu-

652 Federal Criminal Law Procedure.

tional right of the President to pardon as to him may
seem proper. Thompson vs. Duehay, 217 Federal, 484.

Sec. 399 b. Pardon, etc., Continued.

In Pablo vs. U. S., 242 F. 905, it was held that a tele-
gram to the United States attorney from Washington ad-
vising that a witness which he presented had been par-
doned was sufficient to authorize the court to rule that
he could testify.

§ 400. Qualified Verdicts in Certain Cases. — Section
330 of the new Code, re-enacts the Act of the fifteen of
January, 1897, 29 Stat. L., 487, Second Supplement, 538,
and is in the following words:

"Sec. 330. In all cases where the accused is found guilty of the
crime of murder in the first degree, or rape, the jury may qualify their
verdict by adding thereto 'without capital punishment,; and whenever
the jury shall return a verdict qualified as aforesaid, the person con-
victed shall be sentenced to imprisonment for life.--

§ 401. Body of Executed Offender May be Delivered
to Surgeon for Dissection. — Section 5340 of the old stat-
utes becomes, in substance, Section 331 of the new Code,
as follows:

"Sec. 331. The court before which any person is convicted of murder
in the first degree, or rape, may, in its discretion, add to the judg-
ment of death, that the body of the offender be delivered to a surgeon
for discretion; and the marshal who executes such judgment shall
deliver the body, after execution, to such surgeon as the court may di-
rect; and such surgeon, or some person appointed by him, shall receive
and take away the body at the time of execution."

§ 402. Who Are Principals.— Section 5323 and 5427
becomes 332 of the new Code, in the following words:

"Sec. 332. Whoever directly commits any act constituting an o:-
fense defined in any law of the United States, or aids, abets, counsels,
commands, induces, or procures its commission, is a principal."

§ 402a. Aiding and Abetting, Continued. — Under the
above section where the accused was charged in differ-
ent counts of an indictment, first with aiding and abet-
ting another to feloniously introduce intoxicating liquors
being a principal in the commission of the same crime,
into the Indian Territory, and in another count with

Some General Provisions 65

•>

and it appeared that accused ordered and directed his
co-defendant to procure and bring in the liquor, acquit-
tal of the latter was no objection to a conviction of ac-
cused. Rooney vs. U. S., 203 Federal, 928. In the
absence of a statute abolishing the distinction between
principal and accessory in felonies, all who are present
aiding and abetting when a felony is committed are
principals in the first or second degree, and if in the
second degree may be arrainged and tried before the
principal in the first degree, and may be convicted,
though the party charged as the principal in the first de-
gree is acquitted. Rooney vs. U. S., 203 Federal, 928.
It is not necessary where the defendant was charged with
knowingly and fraudulently aiding and abetting a bank-
rupt corporation, of which he was president and general
manager, to conceal its assets from its trustee, that the
corporation should be first convicted before the convic-
tion of accused. Kaufman vs. U. S., 202 Federal, 614.

Sec. 402 b. Who are Principals, Continued.

In Vane vs. U. S., 254 F. 32, it was held that one who
aids or abets may be directly charged as a principal and
such charge will be supported by evidence that he aided
and abetted.

§ 403. Punishment of Accessories. — Section 333 of
the new Code comprises the substantial elements of 5533,
5534, and 5535 of the old statutes, and is in the following
words :

"Sec. 333 Whoever, except as otherwise expressly provided by law,
being an accessory after the fact to the commissions of any offense
defined in any law of the United States, shall be imprisoned not ex-
ceeding one-half the longest term of imprisonment, or fined not ex-
ceeding one-half the largest fine prescribed for the punishment of the
pirncipal, or both, if the principal is punishable by both fine and im-
prisonment; or if the principal is punishable by death, then an ac-
cessory shall be imprisoned not more than ten years."

§ 404. Felonies and Misdemeanors. — Section 335 of
the new Code is one of the most important and most
practical of the entire Act, because it settles for all time
that much mooted question often raised upon challenges

654 Federal Criminal Law Procedure.

and elsewhere as to when a given offense is a misdemean-
or or a felony. The Section is in the following words:

"§ Sec. 335. All offenses which may be punished by death, or
imprisonment for a term exceeding one year, shall be deemed felonies.
All other offenses shall be deemed misdemeanors."

Sec. 404 a. Felonies and Misdemeanors Continued.

Though a statute denounces an offense as a misdemean-
or, if it contains a felonious punishment the offense
is a felony and not a misdemeanor, Hoss vs. U. S., 232
F. 328.

§ 405. Omission of Words "Hard Labor" Not to De-
prive Court of Power to Impose. — Section 338 of the new
Code reads as follows:

"Sec. ;>38. The omission of the words "hard labor" from the pro-
visions prescribing the punishment in the various sections of this
Act, shall not be construed, as depriving the court of the power to
impose labor as a part of the punishment, in any case where such
power now exists."

§ 405a. Imprisonment, and Where. — Where the sen-
tence is for one year only the Court is without authority
to prescribe hard labor as a term of the sentence or to or-
der his confinement in a Government penitentiary. Mit-
chell vs. U. S., 196 Federal, 874. Sections 5541 and 5542 of
the Revised Statutes authorize confinement in a peni-
tentiary when the sentence is for a period longer than
one year, or to imprisonment and confinement at hard
labor. Baird vs. U. S., 196 Federal, 778; Thompson vs.
Duehay, 217 Federal, 484.

Sec. 405 b. "Hard Labor" and Imprisonment,
etc., Continued.

In Robertson vs. U. S., 262 F. 984, it was held that
section 338 did not apply to a statute subsequently en-
acted.

The punishment must be over one year in order to
authorize a penalty of confinement or to hard labor, Hick-
son vs. U. S., 258 F. 867.

A statute saying "not less than five years" supports
a sentence for five, Lee Lin vs. U. S., 250 F. 694.

Time spent in jail awaiting a habeas corpus writ is
to be credited on the penitentiary sentence, Price vs.

Some General Provisions 655

McGuinness, 269 F. 977. This rule would not be opera-
tive unless the prisoner, at the time of his application,
has already been committed on his prison warrant,

As to cumulative sentence, etc., see Brinkman vs. Mor-
gan, 253 F. 553.

§ 406. Repealing provisions, Chapter XV. of the new
Code which includes Sections 341 to 345, repeal such sec-
tions of the old Code as are necessary to make effective
the new Code; providing that accrued rights shall not be
affected, and announcing that prosecutions and acts of
limitations are not affected.

§ 407. Parole of United States Prisoners.— The Act
of Congress dated June 25, 1910, provides that the Super-
intendent of Prisons of the Department of Justice and
the warden and physician of each United States Peni-
tentiary, shall constitute a board of parole of such prison,
and provides, in general terms, for the release on parole
of convicts so recommended by the Board. The Act is
in ten sections.

§ 407a. For Construction of Parole Act. — For com-
plete construction of the Parole Act, see ex parte Marcie,
207 Federal, 809.

§ 408. Witnesses for Poor Accused. — Section 878 of
the old statutes provides that when any person is indicted
in any Court of the United States who is unable to pay
for witnesses in his behalf, he shall make an affidavit
setting forth facts in accordance with the terms of the
section, in which event the Court orders the process at
the expense of the United States.

The Act of June 25, 1910, authorizes suits, writs of
error, etc., by poor persons upon making of certain cer-
tificates and oaths therein provided for.

§ 409. Publicity of Contributions. — An Act approved
June 25, 1910, provides for the publicity of the contribu-
tions made to all political parties, which shall in two or
more States influence the result, or attempt to influence
the result, of an election at which representatives in Con-
gress are to be elected. The Act is in ten sections, and
provides in Section 6 that the public statements shall
give the name and address of each contributor, the total
sum contributed, the total sum of all promises and loans

G5G Federal Criminal Law Procedure.

and advances, the total sum disbursed, advanced, or
promised, and provides a penalty in Section 10, as follows:

"That every person wilfully violating any of the provisions of this
Act shall, upon conviction, be fined not more than one thousand dol-
lars or imprisoned not more than one year, or both."

CHAPTER XXIII.

SMUGGLING.

§ 410. Collection of Duties.

411. Passengers.

412. Offenses.

413. Offenses Continued.

414. Securing Entry by False Samples.

415. Concealing or Destruction of Invoices.

§ 410. Collection of Duties. — To make the collection
of duties more certain Congress lias provided a few crim-
inal statutes among which are the following:

"Sec. 2802. Whenever any article subject to duty is found in the
baggage of any person arriving within the United States, which was
not at the time of making entry for such baggage, mentioned to the
collector before whom such entry was made, by the person making
entry, such article shall be forfeited, and the person in whose bag-
gage it is found shall be liable to a penalty of treble the value of such
article."

Section 2799, Revised Statutes United States, which
must be read in connection with the foregoing section,
provides two independent systems of formalities for the
importation of personal effects and merchandise not per-
sonal effects, each complete in itself, such section read-
ing as follows:

"Sec. 2799. In order to ascertain what articles ought to be exempt-
ed as wearing apparel, and other personal baggage, and the tools
or implements of a mechanical trade only, of persons who arrive in
the United States, due entry thereof, as of other merchandise, but
separate and distinct from that of any other merchandise, imported
from a foreign port, shall be made with the collector of the district
in which the articles are intended to be landed by the owner thereof,
or his agent, expressing the persons by whom or for whom such entry
is made, and particularizing the several packages, and their contents,
with their marks and numbers; and the person who shall make the
entry shall take and subscribe an oath before the collector, declaring
that the entry subscribed by him and to which the oath is annexed
contains, to the best of his knowledge and belief, a just and true ac-
count of the contents of the several packages mentioned in the entry,
specifying the name of the vessel, of her master, and of the port from
which she has arrived; and that such packages contain no merchan-

(657)

658 Federal Criminal Law Procedure.

dise whatever other than wearing apparel, personal baggage, or, as
the case may be, tools of trade, specifying it; that they are the
property of a person named who has arrived, or is shortly expected
to arrive in the United States, and are not directly or indirectly im-
ported for any other or intended for sale."

§ 411. Passengers. — It cannot have been intended that
both the statutes provided for in Section 2799 should be
applicable to merchandise which was imported bv a pas-
senger arriving in the United States but which was not
attempted to be concealed by addressing it as baggage.
United States vs. One Trunk, 175 Federal, 1012.

Inasmuch as the articles for sale, which accompany a
passenger arriving in the United States, are not required
to be declared at the same time as the passenger's per-
sonal baggage, an intentional mistatement of the value
of such articles does not make the articles forfeitable,
because the importer was under no obligation to enter
them, or declare their value at that time under Section
2799, relating to baggage. United States vs. One Trunk,
175 Federal, 1012.

Jewelry worn upon the person openly is held to be sub-
ject to declaration as baggage rather than under the
regulations for the importation of merchandise. One
Pearl Chain vs. United States, 123 Federal, 371.

Merchandise for sale is not baggage within the mean-
ing of this section. United States vs. One Trunk, 175
Federal, 1012.

When one purchases wearing apparel and jewelry for
personal use and made a declaration, on board the vessel,
"Wearing apparel, value not known," and proceeded to
that portion of the vessel roped off for convenient ex-
amination of passengers' effects, to give necessary in-
formation to complete the entry, he is not liable to have
the article seized under Section 2802. United States
vs. One Pearl Chain, 139 Federal, 513.

A declaration by an importer that she had one trunk
for "public store," such being the place where upon
landing articles are examined and appraised, and later,
the filing of a written entry at the Custom House, com-
plies with the section under discussion. United States
vs. One Trunk, 184 Federal, 317.

Smuggling 659

The list made out by the passenger should contain
sufficient information for the officers to require as to the
dutiable character of the contents of baggage. Harts vs.
United States, 140 Federal, 843.

Entry made subsequent to the accrual of the right of
forfeiture does not waive such right. United States vs.
One Purple Cloth Costume, 158 Federal, 899.

Mentioning of one trunk under the heading of dutiable
articles is sufficient within this section. United States
vs. One Trunk, 171 Federal, 772. Fraudulent intent is
not necessary to forfeiture. United States vs. Harts, 131
Federal, 866; 140 Federal, 843.

Precious stones found in the pockets of a passenger
are forfeitable. Emeralds vs. United States, 154 Federal,
839.

§ 412. Offenses. — When this section is knowingly or
fraudulently violated a misdemeanor is committed as de-
fined in Section 3082, which reads as follows:

Sec. 3082. If any person shall fraudulently or knowingly import
or bring into the United States, or assist in so doing, any merchandise,
contrary to law, or shall receive, conceal, buy, sell, or in any manner
facilitate the transportation, concealment, or sale of such merchandise
after importation, knowing the same to have been imported contrary
to law, such merchandise shall be forfeited and the offender shall be
fined in any sum not exceeding five thousand dollars nor less than
fifty dollars, or be imprisoned for any time not exceeding two years,
or both. Whenever, on trial for a violation of this section, the defend-
ant is shown to have or to have had possession of such goods, such
possession shall be deemed evidence to authorize conviction, unless
the defendant shall explain the possession to the satisfaction of the
jury.

Sec. 412 a. Illustrative Cases.

Rope being brought in for another vessel by sailors is
a violation of section 2872, Goldman vs. U. S., 263 F. 340.

For a forfeiture of feathers see 267 F. 964; for a cattle
violation see Estes vs. U. S., 227 F. 818; for a case in-
volving a violation, 3082 and 2865 sections R. S. U. S.
see Sierra vs. U. S., 233 F. 37.

For a case based upon a conspiracy to defraud the
United States of duties see Smith vs. U. S., 231 F. 25.

In a prosecution under section 3082 the possession of
intoxicating liquor and the admission of tax ownership

660 Federal Criminal Law Procedure.

is insufficient to show the liquor was wrongfully import
ed, the same being Mexican liquor, Sherman vs. U. S.,
268 F. 516.

§ 413. Offenses, Continued.— Section 2865 of the Old
Revised Statutes was repealed by the Forty-third Con-
gress, shown on Page 32, First Vol. of Supplement, and
among the provisions of the new Act are the following:

Sec. 4. That whenever any officer of the customs or other person
shall detect and seize goods, wares, or merchandise, in the act of being
smuggled, or which have been smuggled, he shall be entitled to such
compensation therefor as the Secretary of the Treasury shall award
not exceeding in amount one-half of the net proceeds, if any, resulting
from such seizure, after deducting all duties, costs and charges con-
nected therewith:

Provided, That for the purposes of this act smuggling shall be con-
strued to mean the act, with intent to defraud, of bringing into the
United States, or, with like intent, attempting to bring into the
United States, dutiable articles without passing the same, or the
package containing the same, through the custom house, or submitting
them to the officers of the revenue for examination.

And whenever any person not an officer of the United States shall
furnish to a district attorney, or to any chief officer of the customs,
original information concerning any fraud upon the customs-revenue,
perpetrated or contemplated, which shall lead to recovery of any
duties withheld, or of any fine, penalty, or forfeiture incurred, whether
by importers or their agents, or by any officer or person employed in
the custom-service, such compensation may, on such recovery be
paid to such person so furnishing information as shall be just and
reasonable, not exceeding in any case the sum of five thousand dollars;
which compensation shall be paid, under the direction of the Secre-
tary of the Treasury, out of any money appropriated for that pur-
pose.

Sec. 5. That in all suits and proceedings other than criminal
arising under any of the revenue-laws of the United States, the attor-
ney representing the Government whenever, in his belief, any busi-
ness-book, invoice, or paper, belonging to or under the control of the
defendant or claimant, will tend to prove any allegation made by the
United States, may make a written motion, particularly describing
such book, invoice, or paper, and setting forth the allegation which
he expects to prove; and thereupon the court in which the suit or
proceeding is pending may, at its discretion, issue a notice to the
defendant or claimant to produce such book, invoice, or paper in
court, at a day and hour to be specified in said notice, which together
with a copy of said motion, shall be served formally on the defendant
or claimant by the United States marshal by delivering to him a
certified copy thereof, or otherwise serving the same as original
notices of suit in the same court are served;

Smuggling 661

And if the defendant or claimant shall fail or refuse to produce
such book, invoice, or paper in obedience to such notice, the allegations
stated in the said motion shall be taken as confessed unless his fail-
ure or refusal to produce the same shall be explained to the satis-
faction of the court.

And if produced, the said attorney shall be permitted, under the
direction of the court, to make examination (at which examination
the defendant or claimant, or his agent, may be present) of such en-
tries in said book, invoice, or paper as relate to or tend to prove the
allegation aforesaid, and may offer the same evidence on behalf of the
United States.

But the owner of said books and papers, his agent or attorney,
shall have, subject to the order of the court, the custody of them,
except pending their examination in court as aforesaid.

Sec. 6. That no payment shall be made to any person furnishing
information in any case wherein judicial proceedings shall have been
instituted, unless his claim to compensation shall have been estab-
lished to the satisfaction of the court or judge having cognizance
of such proceedings, and the value of his services duly certified by
said court or judge for the information of the Secretary of the Treas-
ury, but no certificate of the value of such services shall be conclusive
of the amount thereof.

And when any fine, penalty, or forfeiture shall be collected with-
out judicial proceedings, the Secretary of the Treasury shall, before
directing payment to any person claiming such compensation, require
satisfactory proof that such person is justly entitled thereto.

Sec. 7. That except in cases of smuggling as aforesaid, it shall
not be lawful for any officer of the United States, under any pretense
whatever, directly or indirectly, to receive, accept, or contract for
any portion of the money which may, under any of the provisions
of this or any other act, accrue to any such person furnishing infor-
mation; and any such officer who shall so receive, accept, or contract
for any portion of the money that may accrue as aforesaid shall be
guilty of a misdemeanor, and, on conviction thereof, shall be liable to
a fine not exceeding five thousand dollars, or imprisonment for not
more than one year, or both, in the discretion of the court, and shall
not be thereafter eligible to any office of honor, trust, or emolument.

And any such person so furnishing information as aforesaid, who
shall pay to any officer of the United States, or to any person for
his use, directly or indirectly, any portion of said money, or any other
valuable thing, on account of or because of such money, shall have u
right of action against such officer or other person, and his legal
representatives, to recover back the same, or the value thereof.

Sec. 8. That no officer, or. other person entitled to or claiming
compensation under any provision of this act, shall be thereby dis-
qualified from becoming a witness in any action, suit, or proceeding
for the recovery, mitigation, or remission thereof, but shall be sub-
ject to examination and cross-examination in like manner with other

662 Federal Criminal Law Procedure.

witnesses, without being thereby deprived of any right, title, share, or
interest in any fine, penalty, or forfeiture to which such examination
may relate; and in every such case the defendant or defendants may ap-
pear and testify and be examined and cross-examined in like man-
mer.

[Sections 9, 10, 11, 12, 14 and 16 expressly repealed by 1890, June
10, ch. 407 No. 29, p. 755.]

Sec. 13. That any merchandise entered by any person or persons
violating any of the provisions of the preceding section (1) but not
subject to forfeiture under the same section, may while owned by
him or them, or while in his or their possession, to double the amount
claimed, be taken by the collector and held as security for the pay-
ment of any fine or fines incurred as aforesaid, or may be levied upon
and sold on execution to satisfy any judgment recovered for such fine
or fines.

But nothing herein contained shall prevent any owner or claimant
from obtaining a release of such merchandise on giving a bond, with
sureties satisfactory to the collector, or, in case of judicial proceedings
satisfactory to the court, or the judge thereof, for the payment of any
fine or fines so incurred: Provided, however, That such merchandise
shall in no case be released until all accrued duties thereon shall
have been paid or secured.

Sec. 14. [Expressly appealed by 1890, June 10, Chapter 407 No. 29.
post p. 755.]

Sec. 15. That it shall be the duty of any officer or person employed
in the customs-revenue service of the United States, upon detection
of any violation of the custom-laws, forthwith to make complaint
thereof to the collector of the district, whose duty it shall be promptly
to report the same to the district attorney of the district in which
such fraud shall be committed.

Immediately upon the receipt of such complaint, if, in his judgment,
it can be sustained, it shall be the duty of such district attorney to
cause investigation into the facts to be made before a United States
Commissioner having jurisdiction thereof, and to initate proper pro-
ceedings to recover the fines and penalties in the premises, and to
prosecute the same with the utmost diligence to final judgment.

Sec. 16. [Repealed by 1890, June 10, ch. 407 No. 29, post p. 755.]

Sec. 17. That whenever, for an alleged violation of the customs-
revenue laws, any person who shall be charged with having incurred
any fine, penalty, forfeiture, or disability, other than imprisonment,
or shall be interested in any vessel or merchandise seized or subject
to seizure, when the appraised value of such vessel or merchandise
is not less than one thousand dollars, shall present his petition to
the judge of the district in which the alleged violation occurred, or
in which the property is situated, setting forth, truly and particular-
ly, the facts and circumstances of the case, and praying for relief,
such judge shall, if the case, in his judgment, requires, proceed to
inquire, in a summary manner into the circumstances of the case,

Smuggling 663

at such reasonable time as may be fixed by him for that purpose, of
which the district attorney and the collector shall be notified by the
petitioner, in order that they may attend and show cause why the
petition should be refused.

Sec. 18. That the summary investigation hereby provided for,
may be held before the judge to whom the petition is presented, or
if he shall so direct, before any United States Commissioner for such
district, and the facts appearing thereon shall be stated and annexed
to the petition, and, together with a certified copy of the evidence,
transmitted to the Secretary of the Treasury, who shall thereupon
have power to mitigate or remit such fine, penalty, or forfeiture, or
remove such disability, or any part thereof, if, in his opinion, the same
shall have been incurred without wilful negligence or any intention
of fraud in the person or persons incurring the same, and to direct
the prosecution, if any shall have been instituted for the recovery
thereof, to cease and be discontinued upon such terms or conditions
as he may deem reasonable and just.

Sec. 19. That it shall not be lawful for any officer or officers of the
United States to compromise or abate any claim of the United States
arising under the custom laws, for any fine, penalty, or forfeiture in-
curred by a violation thereof; and any officer or person who shall
so compromise or abate any such claim, or attempt to make such com-
promise or abatement, or in any manner relieve or attempt to re-
lieve from such fine, penalty, or forfeiture, shall be deemed guilty of
a felony, and, on conviction thereof, shall suffer imprisonment not
exceeding ten years, and be fined not exceeding ten thousand dollars:
Provided, however, That the Secretary of the Treasury shall have
power to remit any fines, penalties, or forfeitures, or to compromise
the same, in accordance with existing law.

Sec. 20. That whenever any application shall be made to the Secre-
tary of the Treasury for the mitigation or remission of any fine,
penalty, or forfeiture, or the refund of any duties, in case the amount
involved is not less than one thousand dollars, the applicant shall
notify the district attorney and the collector of customs of the district
in which the duties, fine, penalty, or forfeiture accrued; and it shall
be the duty of such collector and district attorney to furnish to the
Secretary of the Treasury all practicable information necessary to
enable him to protect the interests of the United States.

Sec. 21. That whenever, any goods, wares, and merchandise shall
have been entered and passed free of duty, and whenever duties upon
any imported goods, wares, and merchandise shall have been liquidated
and paid, and such goods, wares and merchandise shall have been
delivered to the owner, importer, agent, or consignee, such entry and
passage free duty and such settlement of duties shall, after the ex-
piration of one year from time of entry, in the absence of fraud and
in the absence of protest by the owner, importer, agent or consignee,
be final and conclusive upon all parties.

664 Federal Criminal Law Procedure.

Sec. 22. That no suit or action to recover any pecuniary penalty
or forfeiture of property accruing under the customs revenue laws
of the United States shall be instituted unless such suit or action
shall be commenced within three years after the time when such
penalty or forfeiture shall have accrued.

Provided, That the time of the absence from the United States of
the person subject to such penalty or forfeiture, or of any concealment
or absence of the property, shall not be reckoned within this period
of limitation.

§ 414. Securing entry by False Samples. — Section
69 of the new Code Act, 1909, reads as follows:

"Whoever by any means whatever shall knowingly effect or aid in
effecting any entry of goods, wares, or merchandise at less than the
true weight or measure thereof, or upon a false classification thereof
as to quality or value, or by the payment of less than the amount
of duty legally due thereon, shall be fined not more than five thousand
dollars, or imprisoned not more than two years, or both."

This was old Section 5445: see United States vs. Law-
rence, 13 Batch 211, United States vs. Betteline First
Woods, 654.

Section 68 of the new Code makes it an offense for
any revenue officer to admit merchandise for less than
the legal duty, and provides the same punishment as
Section 69: this was old Section 5444.

Sec. 414 a. Customs Continued.

For a case showing a conspiracy to defraud the govern-
ment by illegal importation, etc., see Stager vs. U. S.,
233 F. 510.

§ 415. Concealing or Destruction of Invoices, Etc. —
Old Section 5443 becomes new Section 64, and is in the
following wording:

Whoever shall wilfully conceal or destroy any invoice, book, or
paper relating to any merchandise liable to duty, which has been or
may be imported into the United States from any foreign port or
country, after an inspection thereof has been demanded by the collect-
or of any collection district, or shall at any time conceal or destroy
any such invoice, book, or paper for the purpose of surpressing any
evidence of fraud therein contained, shall be fined not more than five
thousand dollars, or imprisoned not more than two years, or both.

Sec. 415 a. Custom Decisions.

Smuggling 665

For indictment for unlawful transportation under sub-
section 9, section 28, Act of August 5, 1909, see 230. F.
311.

There must be no unreasonable searches in the attempt
to enforce the custom laws, 230 F. 313; U. S. vs. Abrams,
230 F. 313.

Section 3061 R. S. U. S. for forfeiture of merchandise
which could be entered at a custom house which was
not does not apply to liquor and a vehicle carrying it
must be forfeited under prohibition act only, Goodhope,
268 F. 694.

Bullion which has been imported will be forfeited for
failure to make entrv and pay tax, Shaar vs. U. S., 269
F. 26.

Master of vessel is not required to show on his manifest
contraband such as opium, under R. S. U. S. 2809, U. S.
v. Reed, 274 F. 724.

CHAPTER XXIIIA.

Sec. 415b.

Sec.

415c.

Sec.

415d.

Sec.

415e.

Sec.

415f.

Sec.

415g.

Sec.

415h.

Sec.

415i.

Sec.

415j.

Sec.

415k.

Sec.

4151.

Sec.

415m

Sec.

415n.

Sec.

415o.

Sec.

415p.

Sec.

415q.

Sec.

415r.

Sec. 415s.

Sec.

41 5u.

Sec.

415v.

Sec.

415w.

Sec.

415x.

Sec.

415y.

Sec.

415z.

Sec.

415z.z

OTHER OFFENSES.

Tax on sale of grain for future delivery, etc.; tax on
privileges or options for contracts for future delivery;
bushel tax on grain for future delivery; exceptions, de-
signation as contract market; appeal to Circuit Court of
Appeals; payment and collection of taxes; violation of
act, penalties.
Stockyard regulations.
Embezzlement by court officers.

Contributions to influence election of members of Congress.
Farm Loan Statutes and penalties.
Hoarding of Food and Fuel.

Hunting birds or taking eggs from breeding grounds.
Injuries to telegraph and telephone.
Killing or detention of homing pigeons.
Contributions by corporations.
Shanghaiing of sailors.
War Risk Insurance protection.

Criminal correspondence with foreign governments.
Submitting false evidence as to second class mail matter.
Using or selling cancelled stamps, etc., and removal of
stamps from mail.

Criminal prosecution for wilfull infringment of copyright
Sale or introduction of intoxicating liquors — Indian Coun-
try.

Embezzlement, etc., public money by banker or person
receiving unauthorized deposits.
Political contributions.

Commutation of sentence for good behavior and parole.
Law of perjury applicable to search warrant.
Proof of grounds and probable cause.
Limitations.
Venue.

, Carriers — indictment for falsifying account of interstate
carrier.

Sec. 415 b. Tax on Sale of Grain for Future Deliv-
ery, etc., On August 24, 1921, the Congress passed the
following act.

(1). This Act shall be known by the short title of
"The Future Trading Act."

(2). For the purposes of this Act "contract of sale"
shall be held to include sales, agreements of sale, and

(666)

Other Offenses 667

agreements to sell. That the word "person" shall be
construed to import the plural or singular and shall in-
clude individuals, associations, partnerships, corpora-
tions, and trusts. That the word "grain shall be construed
to mean wheat, corn, oats, barley, rye, flax and sor-
ghum. The term "future delivery," as used herein, shall
not include any sale of cash grain or deferred shipment
or delivery. The words "board of trade" shall be held
to include and mean any exchange or association, whether
incorporated or unincorporated, of persons who shall be
engaged in the business of buying or selling grain or
receiving the same for sale on consignment. The act,
omission, or failure of any official, agent, or other person
acting for any individual, association, partnership, cor-
poration, or trust within the scope of his employment or
office shall be deemed the act, omission, or failure of
such individual, association, partnership, corporation, or
trust, as well as of such official agent, or other person.

§ 3. Tax on privileges or options for contracts for
purchases or sales of grain for future delivery; amount.

In addition to the taxes now imposed by law there is
hereby levied a tax amounting to 20 cents per bushel on
each bushel involved therein, whether the actual com-
modity is intended to be delivered or only nominally re-
ferred to, upon each and every privilege or option for a
contract either of purchase or sale of grain, intending
hereby to tax only the transactions known to the trade
as "privileges," "bids," "offers," "puts and calls,"
"indemnities," or "ups and downs."

§ 4. Bushel tax on grain purchased or sold for future
delivery; amount; exceptions.

In addition to the taxes now imposed by law there is
hereby levied a tax of 20 cents a bushel on every bushel
involved therein, upon each contract of sale of grain for
future delivery except —

(a) Where the seller is at the time of the making of
such contract the owner of the actual physical property
covered thereby, or is the grower thereof, or in case
either party to the contract is the owner or renter of land
on which the same is to be grown, or is an association of

66S Federal Criminal Law Procedure.

such owners, or growers of grain, or of such owners of
renters of land; or

(b) Where such contracts are made by or through a
member of a board of trade which has been designated
by the Secretary of Agriculture as a "contract market,"
as hereinafter provided, and if such contract is evi-
denced by a memorandum in writing which shows the
date, the parties to such contract and their addresses,
the property covered and its price, and the terms of de-
liveiy, and provided that each board member shall keep
such memorandum for a period of three years from the
date thereof, or for a longer perior if the Secretary of
Agriculture shall so direct which record shall at all times
be open to the inspection of any representative of the
United States Department of Agriculture or the United
States Department of Justice.

(5). The Secretary of Agriculture is hereby author-
ized and directed to designate boards of trade as "con-
tract markets" when, and only when, such boards of
trade comply with the following conditions and require-
ments:

(a). When located at a terminal market upon which
cash grain is sold in sufficient volumes and under such
conditions as fairly to reflect the general value of the
grain and the difference in value between the various
grades of grain, and having recognized official weighing
and inspection service.

(b). When the governing board thereof provides for
the making and filing, by the board or any member there-
of, as the Secretary of Agriculture may direct, of re-
ports in accordance with the rules and regulations, and
in such manner and form and at such times as may be
prescribed by the Secretary of Agriculture, showing the
details and terms of all transactions entered into by the
board, or the members thereof, either in cash transac-
tions consummated at, on, or in a board of trade, or
transactions for future delivery, and when such govern-
ing board provides, in accordance with such rules and
regulations, for the keeping of a record by the board or
the members of the board of trade, as the Secretary of
Agriculture may direct, showing the details and terms

Other Offenses 669

of all cash and future transactions entered into by them,
consummated at, on, or in a board of trade, such record
to be in permanent form, showing the parties to all such
transactions, any assignments or transfers thereof, with
the parties thereto, and the manner in which said trans-
actions are fulfilled, discharged, or terminated. Such
record shall be required to be kept for a period of three
years from the date thereof, or for a longer period if
the Secretary of Agriculture shall so direct, and shall
at all times be open to the inspection of any representa-
tive of the United States Department of Agriculture or
United States Department of Justice.

(c). When the governing board thereof prevents the
dissemination, by the board of any member thereof, of
false, misleading, or inaccurate report, concerning crop
or market information or conditions that affect or tend
to affect the price of commodities.

(d). When the governing board thereof provides for
the prevention of manipulation of prices, or the corner-
ing of any grain, by the dealers or operators upon such
board.

(e). When the governing board thereof admits to
membership thereof and all privileges thereon on such
boards of trade any duly authorized representative of
any lawfully formed and conducted cooperative associa-
tions of producers having adequate financial responsi-
bility: Provided, That no rule of a contract market
against rebating commissions shall apply to the dis-
tribution of earnings among the bona fide members of
any such cooperative association.

(f). When the governing board shall provide for
making effective the final orders or decisions entered
pursuant to the provisions of paragraph (b) section 6
of this Act.

6. Refusal, suspension or revocation or designation
as contract market; appeal to circuit court of appeals;
refusal of trading privileges with contract markets; ap-
peal.

Any board of trade desiring to be designated a "con-
tract market" shall make application to the Secretary
of Agriculture for such designation and accompany the

670 Federal Criminal Law Procedure.

same with a showing that it complies with the above
conditions, and with a sufficient assurance that it will
continue to comply with the above requirements.

(a). A commission composed of the Secretary of Ag-
riculture, the Secretary of Commerce, and the Attorney
General is authorized to suspend for a period not to
exceed six months or to revoke the designation of any
board of trade as a "contract market" upon a showing
that such board of trade has failed or is failing to com-
ply with the above requirements or is not enforcing its
rules of government made a condition of its designation
as set forth in section 5. Such suspension or revocation
shall only be after a notice to the officers of the board of
trade affected and upon a hearing: Provided, That such
suspension or revocation shall be final and conclusive un-
less within fifteen days after such suspension or revoca-
tion by the said commission such board of trade appeals
to the circuit court of appeals for the circuit in which it
has its principal place of business by filing with the
clerk of such court a written petition praying that the
order of the said commission be set aside or modified
in the manner stated in the petition, together with a bond
in such sum as the court may determine, conditioned
that such board of trade will pay the costs of the pro-
ceedings of the court so directs. The clerk of the court
in which such a petition is filed shall immediately cause
a copy thereof to be delivered to the Secretary of Ag-
riculture, chairman of said commission or any member
thereof, and the said commission shall forthwith pre-
pare, certify, and file in the court a full and accurate
transcript of the record in such proceedings, including
the notice to the board of trade, a copy of the charges,
the evidence, and the report and order. The testimony
and evidence taken or submitted before the said com-
mission duly certified and filed as aforesaid as a part of
the record, shall be considered by the court as the evi-
dence in the case. The proceedings in such cases in
the circuit court of appeals shall be made a perferred
cause and shall be expedited in every way. Such a court
may affirm or set aside the order of the said commission
or may direct it to modify its order. No such order of

Othee Offenses 671

the said commission shall be modified or set aside by
the circuit court of appeals unless it is shown by the
board of trade that the order is unsupported by the
weight of the evidence or was issued without due notice
and a reasonable opportunity having been afforded to
such board of trade for a hearing, or infringes the Con-
stitution of the United States, or is beyond the juris-
diction of said commission: Provided further, That if
the Secretary of Agriculture shall refuse to designate
as a contract market any board of trade that has made
application therefor, then such board of trade may ap-
peal from such refusal to the commission described there-
in, consisting of the Secretary of Agriculture, the Sec-
retary of Commerce, and the Attorney General of the
United States, with the right to appeal as provided for
in other cases in this section, the decision on such appeal
to be final and binding on all parties interested.

(b). If the Secretary of Agriculture has reason to
believe that any person is violating any of the provisions
of this Act, or is attempting to manipulate the market
price of any grain in violation of the provisions of sec-
tion 5 hereof, or of the rules or regulations made pur-
suant to its requirements, he may serve upon such per-
son a complaint stating his charge in that respect, to
which complaint shall be attached or contained therein
a notice of hearing, specifying a day and place not less
than three days after the service thereof, requiring such
person to show cause why an order should not be made
directing that all contract markets until further notice
of the said commission refuse all trading privileges
thereon to such person. Said hearing may be held in
Washington, District of Columbia, or elsewhere, before
the said commission, or before a referee designated by
the Secretary of Agriculture who shall cause all evi-
dence to be reduced to writing and forthwith transmit
the same to the Secretary of Agriculture as chairman
of the said commission. That for the purpose of secur-
ing effective enforcement of the provisions of this Act
the provisions including penalties, of section 12 of the
Interstate Commerce Act, as amended, relating to the
attendance and testimony of witnesses, the production

672 Federal Criminal Law Procedure.

of documentary evidence, and the immunity of witnesses,
are made applicable to the power, jurisdiction, and au-
thority of the Secretary of Agriculture, the said com-
mission, or said referee in proceedings under this Act,
and to persons subject to its provisions. Upon evidence
received the said commission may require all contract
markets to refuse such person all trading privileges
thereon for such period as may be specified in said order.
Notice of such order shall be sent forthwith by regis-
tered mail or delivered to the offending person and to
the governing boards of said contract markets. After
the issuance of the order by the commission, as afore-
said, the person against whom it is issued may obtain
a review of such order or such other equitable relief as
to the court may seem just by filing in the United States
circuit court of appeals of the circuit in which the peti-
tioner is doing business a written petition praying that
the order of the commission be set aside. A copy of
such petition shall be forthwith served upon the com-
mission by delivering such copy to its chairman, or to
any member thereof, and thereupon the commission shall
forthwith certify and file in the court a transcript of the
record theretofore made, including evidence received.
Upon the filing of the transcript the court shall have
jurisdiction to affirm, to set aside, or modify the order
of the commission, and the findings of the commission
as to the facts, if supported by the weight of evidence,
shall in like manner be conclusive. In proceedings under

paragraphs (a) and (b) the judgment

and decree of the court shall be final, except that the
same shall be subject to review by the Supreme Court
upon certiorari, as provided in section 240 of the Ju-
dicial Code.

§ 7. Payment and collection of tax.

The tax provided for herein shall be paid by the seller,
and such tax shall be collected either by the affixing of
stamps or by such other method as may have been pre-
scribed by the Secretary of the Treasury by regulations,
and such regulations shall be published at such times
and in such manner as shall be determined by the Sec-
retary of the Treasury.

Other Offenses 673

§ 8. Vacation of designation as contract market on
application of board of trade.

Any board of trade that lias been designated a con-
tract market, in the manner herein provided, may have
such designation vacated and set aside giving notice in
writing to the Secretary of Agriculture requesting that
its designation as a contract market be vacated, which
notice shall be served at least ninety days prior to the
date named therein, as the date when the vacation of
designation shall take effect. Upon receipt of such
notice the Secretary of Agriculture shall forthwith or-
der the vacation of the designation of such board of
trade as a contract market, effective upon the day named
in the notice, and shall forthwith send a copy of the
notice and his order to all other contract markets. From
and after the date upon which the vacation became ef-
fective, the said board of trade can thereafter be desig-
nated again a contract market by making application
to the Secretary of Agriculture in the manner herein pro-
vided for an original application.

§ 9. Investigations by Secretary of Agriculture.

The Secretary of Agriculture may make such investi-
gations as he may deem necessary to ascertain the facts
regarding the operations of boards of trade and may
publish from time to time, in his discretion, the result
of such investigation, and such statistical information
gathered therefrom, as he may deem of interest to the
public, except data and information which would sepa-
rately disclose the business transactions of any person,
and trade secrets or names of customers: Provided,
That nothing in this section shall be construed to pro-
hibit the Secretary of Agriculture from making or issu-
ing such reports as he may deem necessary, relative to
the conduct of any board of trade, or of the transactions
of any person found guilty of violating the provisions
of this Act under the proceedings prescribed in section
6 of this Act: Provided further, That the Secretary of
Agriculture in any report may include the facts as to
any actual transaction. The Secretary of Agriculture,
upon his own initiative or in cooperation with existing
governmental agencies, shall investigate marketing con-

674 Federal Criminal Law Procedure.

ditions of grain and grain products and by-products in-
cluding supply and demand for these commodities, cost
to the consumer and handling and transportation
charges. He shall likewise compile and furnish to pro-
ducers, consumers, and distributors, by means of regular
or special reports, or by such methods as he may deem
most effective, information respecting the grain mar-
kets, together with information on supply, demand,
prices, and other conditions, in this and other countries
that affect the markets.

§ 10. Violations of act; penalty.

Any person who shall fail to evidence any such con-
tract by a memorandum in writing, or to keep the record,
or make a report, or who shall fail to pay the tax, as
provided in sections 4 and 5 hereof, or who shall fail
to pay the tax required in section 3 hereof, shall pay in
addition to the tax a penalty equal to 50 per centum of
the tax levied against him under this Act and shall be
guilty of a misdemeanor, and upon conviction thereof,
be fined not more than $10,000 or imprisoned for not more
than one year, or both, together with the costs of prose-
cution.

§ 11. Partial invalidity of act.

If any provision of this Act or the application thereof
to any person or circumstances as held invalid, the va-
lidity of the remainder of the Act and of the application
of such provision to other persons and circumstances
shall not be affected thereby.

§ 12. Time of taking effect of act.

No tax shall be imposed' by this Act within four months
after its passage, and no fine, imprisonment, or other
penalty shall be. enforced for any violation of this Act
occurring within four months after its passage.

§ 13. Powers of Secretary of Agriculture.

The Secretary of Agriculture may cooperate with any
department or agency of the Government, any State,
Territory, District, or possession, or department, agency
or political subdivision thereof, or any person; and shall
have the power to appoint, remove, and fix the compen-
sation of such officers and employees, not in conflict witli
existing law, and make such expenditures for rent out-

Other Offenses 675

side the District of Columbia, printing, telegrams, tele-
phones, law books, books of reference, periodicals, furni-
ture, stationery, office equipment, travel, and other sup-
plies and expenses as shall be necessary to the adminis-
tration of this Act in the District of Columbia and else-
where, and there is hereby authorized to be appropri-
ated, out of any moneys in the Treasury not otherwise
appropriated, such sums as may be necessary for such
purposes.

Sec. 415c. Stockyard Regulations.

On August 15, 1921, the Congress passed the statute
for the regulation of stockyards and market agencies
providing certain regulations for the use of pens for
cattle, sheep, swine, horses, mules and goats and placed
them under the supervision of the Secretary of Agri-
culture and declared against unjust and unreasonable
and discriminatory services and authorized the recovery
of five hundred dollars in a civil suit for each violation
of the act, such suit to be brought in the name of the
United States by the District Attorneys under the di-
rection of the Attorney General.

Sec. 415d. Embezzlement by Court Officers.

The Act of May 29, 1920, reads as follows:—

Any United States marshal, clerk, receiver, referee,
trustee, or other officer of a United States court, or any
deputy, assistant, or employee of any such marshal,
clerk, receiver, referee, trustee, or other officer who shall,
after demand by the party entitled thereto, unlawfully
retain or who shall convert to his own use or to the use
of another any moneys received for or on account of
costs or advance deposits to cover fees, expenses, or
costs, deposits for fees or expenses in bankruptcy cases,
composition funds or money of bankrupt estates, fees
in naturalization matters, or any other money whatever
which has come into his hands by virtue of his official
relation or by the fact of his official position or employ-
ment shall be deemed guilty of embezzlement and shall,
where the offense is not otherwise punishable by some
statute of the United States, be fined not more than
double the value of the money thus retained or con-
verted or imprisoned not more than ten years, or both;

676 Federal Criminal Law Procedure.

and it shall not be a defense in such case that the ac-
cused person had an interest, contingent or otherwise,
in some part of such moneys or of the fund from which
they were retained or converted.

Sec. 415e. Contributions to Influence Election of
Members of Congress.

The Act of June 25, 1910, C. 392, 36 Stat. 822, makes
provisions regulating election contributions and cam-
paign expenses for representatives in Congress and pro-
vides a penalty for a wilfull violation thereof of not more
than a thousand dollar fine or imprisonment not more
than one year or both, pages 58-62 Barnes 1919 Fed.
Code.

Sec. 415f. Farm Loan Statute and Penalties.

The Act of July 17, 1916, C. 245, 39 Stat. 382, provides
for the creation of a farm loan board and bureau and
federal land banks and national farm loan associations
and for the appraisal of land upon which loans were to
be made and for the issuance of farm loan bonds and for
the amortization of the loan, the exemption from taxation
of such operations, the examination of such banks and
other provisions and then provides a punishment for any
applicant who should make any false statement in his ap-
plication for a loan, for any member of a loan committee
or appraiser who should wilfully overvalue any land of-
fered as security and for any examiner who should ac-
cept any loan or gratuity from any land bank and for
any one who should forge or counterfeit any bond or
paper in imitation of similiar instruments of said or-
ganizations, of a fine not exceeding five thousand dollars
or by imprisonment not exceeding one year or both and
for the latter offense the same fine or imprisonment not
exceeding five years or both.

This is new legislation and covers in detail with ap-
propriate penalties the violation of all of the essential
provisions of the Act.

Sec. 415g. Hoarding of Food and Fuel.

In the Act of August 10, 1917, C. 53, Sec. 26, 40 Stat.
286, is the following section: "Any person carrying on
or employed in commerce among the several States, or
with foreign nations, or with or in the Territories or

Other Offenses 677

other possessions of the United States in any article suit-
able for human food, fuel or other necessities of life,
who, either in his individual capacity or as an officer,
agent, or employee of a corporation or member of a part-
nership carrying on or employed in such trade, shall
store, acquire, or hold, or who shall destroy or make
away with any such article for the purpose of limiting
the supply thereof to the public or affecting the market
price thereof in such commerce, whether temporarily or
otherwise, shall be deemed guilty of a felony and, upon
conviction thereof, shall be punished by a fine of not
more than $5,000 or by imprisonment for not more than
two years, or both: Provided, That any storing or hold-
ing by any farmer or gardener, or other person of the
products of any farm, garden, or other land cultivated
by him shall not be deemed to be a storing or holding
within the meaning of this Act: Provided further, That
farmers and fruit growers, cooperative and other ex-
changes, or societies of a similiar character shall not be
included within the provisions of this section: Provided
further, That this section shall not be construed to pro-
hibit the holding or accumulating of any such article
by any such person in a quantity not in excess of the
reasonable requirements of his business for a reason-
able time or in a quantity reasonably required to furnish
said article produced in surplus quantities seasonally
throughout the period of scant or no production. Noth-
ing contained in this section shall be construed to repeal
the Act entitled "An Act to protect trade and commerce
against unlawful restraints and monopolies," approved
July second, eighteen hundred and ninety, commonly
known as the Sherman Antitrust Act. (Act Aug. 10,
1917, c. 53, Sec. 26, 40 Stat. 286)."

Sec. 415h. Hunting Birds or Taking Eggs from
Breeding Grounds.

"Whoever shall hunt, trap, capture, wilfully disturb, or kill any
bird of any kind whatever, or take the eggs of any such bird, on any
lands of the United States which have been set apart or reserved as
breeding grounds for birds, by any law, proclamation, or executive
order, except under such rules and regulations as the Secretary of
Agriculture may, from time to time, prescribe, shall be fined not more

678 Federal Criminal Law Procedure.

than five hundred dollars, or imprisoned not more than six months,
or both."

Sec. 415i. Injuries to Telegraph or Telephone.

"Whoever shall wilfully or maliciously injure or destroy any of the
works, property, or material of any telegraph, telephone, or cable
line, or system, operated or controlled by the United States, whether
constructed or in process of construction, or shall wilfully or malicious-
ly interfere in any way with the working or use of any such line, or
system, or shall wilfully or maliciously obstruct, hinder, or delay
the transmission of any communication over any such line, or system,
shall be fined not more than one thousand dollars, or imprisoned not
more than three years, or both."

Sec. 415 j. Killing or Detention of Homing Pigeons.

That it be, and it hereby is, declared to be unlawful
to knowingly entrap, capture, shoot, kill, possess, or in
any way detain an Antwerp, or homing pigeon, common-
ly called carrier pigeon, which is owned by the United
States or bears a band owned and issued by the United
States having thereon the letters "-TJ. S. A." or "U. S.
N." and a serial number.

The possession or detention of any pigeon described
in section one of this Act by any person or persons in
any loft, house, cage, building, or structure in the owner-
ship or under the control of such person or persons with-
out giving immediate notice by registered mail to the
nearest military or naval authorities, shall be prima
facie evidence of a violation of this Act.

Any person violating the provisions of this Act shall,
upon conviction, be punished by a fine of not more than
$100, or by imprisonment for not more than six months,
or by both such fine and imprisonment.

Sec. 415k. Contributions by Corporations.

The Act of 1907 and 1909 is as follows:

"It shall be unlawful for any national bank or any corporation or-
ganized by authority of any law of Congress, to make a money con-
tribution in connection with any election to any political office. It
shall also be unlawful for any corporation whatever to make a money
contribution in connection with any election at which Presidential
and Vice-Presidential electors or a Representative in Congress is to
be voted for, or any election by any State legislature of a United
States Senator. Every corporation which shall make any contribution

Other Offenses 679

in violation of the foregoing provisions shall be fined not more than
five thousand dollars; and every officer or director of any corpora-
tion who shall consent to any contribution by the corporation in
violation of the foregoing provisions shall be fined not more than one
thousand dollars, or imprisoned not more than one year, or both."

Sec. 4151. Shanghaiing of Sailors.

Whoever, with intent that any person shall perform
service of labor of any kind on board of any vessel en-
gaged in trade and commerce among the several States
or with foreign nations, or on board of any vessel of
the United States engaged in navigating the high seas
or any navigable water of the United States, shall pro-
cure or induce, or attempt to procure or induce, another,
by force or threats or by representations which he knows
or believes to be untrue, or while the person so procured
or induced is intoxicated or under the influence of any
drug, to go on board of any such vessel, or to sign or in
anywise enter into any agreement to go on board of any
such vessel to perform service or labor thereon; or who-
ever shall knowingly detain on board of any such vessel
any person so procured or induced to go on board there-
of, or to enter into any agreement to go on board thereof,
by any means herein defined; or whoever shall knowing-
ly aid or abet in the doing of any of the things herein
made unlawful, shall be fined not more than one thous-
and dollars, or imprisoned not more than one year, or
both.

Sec. 415m. War Risk Insurance Protection.

For the integrity of the War Risk Insurance Act Con-
gress provided the following penalties and offenses : —

"False statements — Whoever in any claim or family allowance, con-
pensation, or insurance, or in any document required by this Act or
by regulation made under this Act, makes any statement of a mate-
rial fact knowing it to be false, shall be guilty of perjury and shall
be punished by a fine of not more than five thousand dollars, or by
imprisonment for not more than two years or both. (Act Sept. 2,
1914, c. 293, sec. 25, as added by Act, Oct. 6, 1917, c. 105, sec. 2, 40
Stat. 402.)

(b) Fraudulent acceptance of payments— If any person entitled to
payment of family allowance or compensation under this Act, whose
right to such payment under this Act ceases upon the happening of
any contingency, thereafter fraudently accepts any such payment.

680 Federal Criminal Law Procedure.

he shall be punished by a fine of not more than two thousand dollars,
or by imprisonment for not more than one year, or both. (Act Sept.
2, 1914, c. 293, Sec. 26, as added by Oct. 6, 1917, c. 105, sec. 2, 40
Stat. 402.)

(c) Fraudulent obtaining of money or insurance — Whoever shall
obtain or receive any money, check, allotment, family allowance,
compensation, or insurance under Articles II, III, or IV of this Act,
without being entitled thereto, with intent to defraud the United
States or any person in the military or naval forces of the United
States, shall be punished by a fine of not more than two thousand
dollars, or by imprisonment for not more than one year, or both.
(Act Sept. 2, 1914, c. 293, sec. 27, as added by Act June 25, 1918,
c. 104, sec. 2, 40 Stat)."

Sec. 415n. Criminal Correspondence With Foreign
Governments.

Every citizen of the United States, whether actually
resident or abiding within the same, or in any place sub-
ject to the jurisdiction thereof, or in any foreign coun-
try, without the permission or authority of the Govern-
ment, directly or indirectly, commences or carries on any
verbal or written correspondence or intercourse with any
foreign government or any officer or agent thereof, with
an intent to influence the measures or conduct of any for-
eign government or of any officer or agent thereof, in re-
lation to any disputes or controversies with the United
States, or to defeat the measures of the Government of
the United States; and every person, being a citizen of
or resident within the United States or in any place
subject to the jurisdiction thereof, and not duly author-
ized, counsels, advises, or assists in any such corres-
pondence with such intent, shall be fined not more than
five thousand dollars and imprisoned not more than three
years; but nothing in this section shall be construed to
abridge the right of a citizen to apply, himself or his
agent, to any foreign government or the agents thereof
for redress of any injury which he may have sustained
from such government or any of its agents or subjects.
(C. C. sec. 5; R. S. sec. 5335; Act. March 4, 1909, c. 321,
Sec. 5, 35 Stat. 1088.)

Sec. 415o. Submitting False Evidence as to Second-
class Matter.

Other Offenses 681

Whoever shall knowingly submit or cause to be sub-
mitted to any postmaster or to the Post-Office Depart-
ment or any officer of the postal service, any false evi-
dence relative to any publication for the purpose of se-
curing the admission thereof at the second-class rate,
for transportation in the mails, shall be fined not more
than five hundred dollars. (C. C. sec. 223; Acts March
3, 1879, c. 180, sec. 13, 20 Stat. 359; June 18, 1888, c. 394,
sec. 1, 25 Stat.187; March 2, 1905, c. 1304, 33 Stat. 823;
March 4, 1909, c. 321, sec. 223, 35 Stat, 1133.)

Sec. 415p. Using or Selling Canceled Stamps or
Stamped Envelope or Card; Eemoval of Stamps from
Mail.

Whoever shall use or attempt to use in payment of
postage, any canceled postage stamp, whether the same
has been used or not; or shall remove, attempt to remove,
or assist in removing, the canceling or defacing marks
from any postage stamp, or the superscription from any
stamped envelope, or postal card, that has once been used
in payment of postage, with the intent to use the same for
a like purpose, or to sell or offer to sell the same, or
shall knowingly have in possession any postage stamp,
stamped envelope, or postal card, with intent to use the
same, or shall knowingly sell or offer to sell any such
postage stamp, stamped envelope, or postal card, or use
or attempt to use the same in payment of postage; or
whoever unlawfully and wilfully shall remove from any
mail matter any stamp attached thereto in payment of
postage; or shall knowingly use or cause to be used in
payment of postage, any postage stamp, postal card, or
stamped envelope, issued in pursuance of law, which has
already been used for a like purpose, shall, if he be a
person employed in the postal service, be fined not more
than five hundred dollars, or imprisoned not more than
three years, or both; and if he be a person not employed
in the postal service, shall be fined not more than five
hundred dollars, or imprisoned not more than one year,
or both. (C. C. sec. 205; R. S. sees. 3922-3925; Acts
March 3, 1879, c. 180, sec, 28, 20 Stat. 362; March 4, 1909,
c, 321, sec. 205, 35 Stat, H27.),

682 Federal Criminal Law Procedure.

Sec. 415q. Criminal Prosecution for Willful Infringe-
ment of Copyright.

Any person who willfully and for profit shall infringe
any copyright secured by this Act, or who shall know-
ingly and willfully aid or abet such infringement, shall
be deemed guilty of a misdemeanor, and upon convic-
tion thereof shall be punished by imprisonment for not
exceeding one year or by a fine of not less than one hun-
dred dollars nor more than one thousad dollars, or both,
in the discretion of the court: Provided, however, That
nothing in this Act shall be so construed as to prevent
the performance of religious or secular works such as
oratorios,' cantatas, masses, or octavo choruses by public
schools, church choirs, or vocal societies, rented, bor-
rowed, or obtained from some public library, public
school, church choir, school choir, or vocal society, pro-
vided the performance is given for charitable or edu-
cational purposes and not for profit. (Act March 4, 1909,
c. 320, sec. 28, 35 Stat. 1082.

Sec. 415r. Sale or Introduction of Intoxicating Liq-
uors— Indian Country.

No ardent spirits, ale, beer, wine, or intoxicating liquor
or liquors of whatever kind shall be introduced, under any
pretense, into the Indian country. Every person who sells,
exchanges, gives, barters, or disposes of any ardent spir-
its, ale, beer, wine, or intoxicating liquors of any kind
to any Indian under charge of any Indian superintendent
or agent, or introduces or attempts to introduce any ar-
dent spirits, ale, wine, beer, or intoxicating liquor of any
kind into the Indian country shall be punished by im-
prisonment for not more than two years, and by fine of
not more than three hundred dollars for each offense.
But it shall be a sufficient defense to any charge of in-
troducing or attempting to introduce ardent spirits, ale,
beer, wine, or intoxicating liquors into the Indian coun-
try that the acts charged were done under authority in
writing from the War Department, or any officer duly
authorized thereunto by the War Department.

No part of section twenty-one hundred and thirty-nine
or section twenty-one hundred and forty of the Revised
Statutes shall be a bar to the prosecution of any officer,

Other Offenses 683

soldier, butler or storekeeper, attache, or employee of
the Army of the United States who shall barter, donate,
or furnish in any manner whatsoever liquors, beer, or
any intoxicating beverage whatsoever to any Indian.

All complaints for the arrest of any person or persons
made in violation of any of the provisions of this Act
shall be made in the county where the offense shall have
been committed, or if committed upon or within any
reservation not included in any county, then in any coun-
ty adjoining such reservation; but in all cases such ar-
rests shall be made before any United States court com-
missioner residing in such ' adjoining county, or before
any magistrate or judicial officer authorized by the laws
of the State in which such reservation is located to issue
warrants for the arrest and examination of offenders
by section ten hundred and fourteen of the Revised
Statutes of the United States. And all persons so ar-
rested shall, unless discharged upon examination, be
held to answer and stand trial before the court of the
United States having jurisdiction of the offense.

Any person who shall sell, give away, dispose of, ex-
change, or barter any malt, spirituous, vinous liquor in-
cluding beer, ale, and wine, or any ardent or other in-
toxicating liquor of any kind whatsoever, or any es-
sence, extract, bitters, preparations, compound, compo-
sition, or any article whatsoever, under any name, label,
or brand, which produces intoxication, to any Indian to
whom allotment of land has been made while the title
to the same shall be held in trust by the Government,
or to any Indian a ward of the Government under charge
of any Indian superintendent or agent, or any Indian,
including mixed bloods, over whom the Government,
through its departments, exercises, guardianship, and
any person who shall introduce or attempt to introduce
any malt, spirituous, or vinous liquor, including beer,
ale, and wine, or any ardent or intoxicating liquor of any
kind whatsoever into the Indian country, which term
shall include any Indian allotment while the title to the
same shall be held in trust by the Government, or while
the same shall remain inalienable by the allottee with-
out the consent of the United States, shall be punished

684 Federal Criminal Law Procedure.

by imprisonment for not less than sixty days, and by a
fine of not less than one hundred dollars for the first
offense and not less than two hundred dollars for each
offense thereafter: Provided, however, That the per-
son convicted shall be committed until fine and costs are
paid. But it shall be a sufficient defense to any charge
of introducing or attempting to introduce ardent spirits,
ale, beer, wine, or intoxicating liquors into the Indian
country that the acts charged were done under author-
ity, in writing, from the War Department or any officer
duly authorized thereunto by the War Department.

Any person, whether an Indian or otherwise, who
shall, in said Territory, manufacture, sell, give away, or
in any manner, or by any means furnish to anyone, either
for himself or another, any vinous, malt, or fermented
liquors, or any other intoxicating drinks of any kind
whatsoever, whether medicated or not, or who shall carry,
or in any manner have carried, into said Territory any
such liquors or drinks, or who shall be interested in such
manufacture, sale, giving away, furnishing to anyone, or
carrying into said Territory any of such liquors or
drinks, shall, upon conviction thereof, be punished by
fine not exceeding five hundred dollars and by imprison-
ment for not less that one month nor more than five
years.

On and after September first, nineteen hundred and
eighteen, possession by a person of intoxicating liquors
in the Indian country where the introduction is or was
prohibited by treaty or Federal statute shall be an of-
fense and punished in accordance with the provisions of
the Acts of July twenty-third, eighteen hundred and
ninety-two, and January thirteenth, Eighteen hundred
and ninety-seven.

Hereafter it shall be unlawful to introduce and use
wines solely for sacramental purposes, under church au-
thority, at any place within the Indian country or any
Indian reservation, including the Pueblo Eeservations
in New Mexico. (First paragraph, R. S. sec. 2139; Acts
July 9, 1832, c. 174, sec. 4, 4 Stat. 564; March 15, 1864,
c. 33, 13 Stat. 29; Feb. 27, 1877, c. 69, sec. 1, 19 Stat. 244;
July 23, 1892, c. 234, 27 Stat. 260; second paragraph, Act

Other Offenses 685

July 4, 1884, c. 180, sec. 1, 23 Stat. 94; third paragraph,
Act July 23, 1892, c. 234, 27 Stat. 261; fourth paragraph,
Act. Jan. 30, 1897, c. 109, sec. 1, 29 Stat, 506; fifth par-
agraph Act March 1, 1895, c. 145, sec. 8, 28 Stat. 697;
sixth paragraph, Act May 25, 1918, c, 86, sec. 1, 40 Stat,
seventh paragraph, Act Aug. 24, 1912, c. 338, sec. 1, 37
Stat 519.)

Note.— By Act March 2, 1917, c. 146, sec. 17, 39 Stat.
983, Osage County, Okla, is made Indian country within
the meaning of all liquor statutes.

Sec. 415s. Embezzlement, etc., Public Money-Banker
or Person Receiving Unauthorized Deposit.

Every banker, broker, or other person not an author-
ized depositary of public moneys, who shall knowingly
receive from any disbursing officer, or collector or in-
ternal revenue, or other agent of the United States, any
public money on deposit, or by way of. loan or accommo- .
dation, with or without interest, or otherwise than in
payment of a debt against the United States, or shall
use, transfer, convert, appropriate, or apply any portion
of the public money for any purpose not prescribed by
law; and every president, cashier, teller, director, or
other officer of any bank or banking association who
shall violate any provision of this section is guilty of
embezzlement of the public money so deposited, loaned,
transferred, used, converted, appropriated, or applied,
and shall be fined not more than the amount embezzled,
or imprisoned not more than ten years, or both. (C.
C. sec. 96; E. S. sec. 5497; Act March 4, 1909, c. 321, sec.
96, 35 Stat. 1106.)

Sec. 415t. Census Offenses — Offenses of Officers and
Employees.

Any supervisor, supervisor's clerk, enumerator, in-
terpreter, special agent, or other employee, who, having
taken and subscribed the oath of office required by this
Act. shall, without justifiable cause, neglect or refuse to
perform the duties enjoined on him by this Act, shall
be deemed guilty of a misdemeanor, and upon convic-
tion thereof shall be fined not exceeding five hundred
dollars; or if he shall, without the authority of the Di-
rector of the Census, publish or communicate any in-

686 Federal Criminal Law Procedure.

formation coming into his possession by reason of his
employment under the provisions of this Act, or the
Act to provide for a permanent Census Office, or Acts
amendatory thereof or supplemental thereto, he shall be
guilty of a misdemeanor and shall upon conviction
thereof be fined not to exceed one thousand dollars, or
be imprisoned not to exceed two years, or both so fined
and imprisoned, in the discretion of the court; or if he
shall wilfully and knowingly swear to or affirm falsely,
he shall be deemed guilty of perjury, and upon convic-
tion shall be imprisoned not exceeding five years and be
fined not exceeding two thousand dollars; or if he shall
wilfully and knowingly make a false certificate or a fic-
titious return, he shall be guilty of a misdemeanor, and
upon conviction of either of the last-named offenses he
shall be fined not exceeding two thousand dollars and
.be imprisoned not exceeding five years; or if any per-
son who is or has been an enumerator shall knowingly
or willfully furnish, or cause to be furnished, directly
or indirectly, to the Director of the Census, or to any
supervisor of the census, any false statement or false
information with reference to any inquiry for which he
was authorized and required to collect information, he
shall be guilty of a misdemeanor, and upon conviction
thereof shall be fined not exceeding two thousand dollars
and.be imprisoned not exceeding five years. (Act July
2, 1909, c. 2, sec. 22, 36 Stat. 8.)

Sec. 415u. Political Contributions, etc.,
Solicitation or receipt of political contributions by offi-
cers.— No Senator or Representative in, or Delegate or
Resident Commissioner to Congress, or Senator, Repre-
sentative, Delegate, or Resident Commissioner elect or
officer or employee of either House of Congress, and no
executive, judicial, military, or naval officer of the
United States, and no clerk or employee of any depart-
ment, branch, or bureau of the executive, judicial, or
military or naval service of the United States, shall,
directly or indirectly, solicit or receive, or be in any
manner concerned in soliciting or receiving, any assess-
ment, subscription, or contribution for any political pur-
pose whatever, from any officer, clerk, or employee of

Other Offenses 687

the United States, or any department, branch, or bureau
thereof, or from any person receiving any salary or com-
pensation from moneys derived from the Treasury of the
United States. (C. C. sec. 118; Acts Jan. 16, 1883, c.
27, sec. 11, 22 Stat. 406; March 4, 1909, c 321, sec. 118,
35 Stat. 1110.)

(b) Same: in public building. — No person shall, in
any room or building occupied in the discharge of of-
ficial duties by any officer or employee of the United
States mentioned in the preceding section, or in any
navy-yard, fort, or arsenal, solicit in any manner what-
ever or receive any contribution of money or other thing
of value for any political purposes whatever. (C. C. sec.
119; Acts Jan. 16, 1883, c. 27, sec. 12, 22 Stat. 407;
March 4, 1909, c. 321, sec. 119, 35 Stat. 1110.)

(c) Immunity from official proscription. — No of-
ficer or employee of the United States mentioned in sec-
tion one hundred and eighteen, shall discharge, or pro-
mote, or degrade, or in any manner change the official
rank or compensation of any other officer or employee,
or promise or threaten so to do, for giving or withhold-
ing or neglecting to make any contribution of money or
other valuable thing for any political purpose. (C. C.
sec. 120; Acts Jan. 16, 1883, c. 27, sec. 13, 22 Stat. 407;/
March 4, 1909, c. 321, sec. 120, 35 Stat. 1110.)

(d) Giving money to officers for political purposes.
No officer, clerk, or other person in the service of the
United States shall, directly or indirectly, give or hand
to any other officer, clerk, or person in the service of the
United States, or to any Senator or Member of or Dele-
gate to Congress, or Resident Commissioner, any money
or other valuable thing on account of or to be applied
to the promotion of any political object whatever. (C.
C. sec. 121; Acts Jan. 16, 1883, c. 27, sec. 14, 22 Stat.
407; March 4, 1909, c. 321, sec. 212, 35 Stat. 1110.)

(e) Punishment for violation of four preceding sec-x
tions. — Whoever shall violate any provision of the four
preceding sections shall be fined not more than five thou-
sand dollars, or imprisoned not more than three years,
or both. (C. C. sec. 122; Acts Jan. 16, 1883, c. 27, sec.
15, 22 Stat. 407; March 4, 1909, c. 321, sec. 122, 35 Stat.

688 Federal Criminal Law Procedure.

1110.) See U. S. v. Thayer, 154 F. 508; U. S. v. Thayer,
209 IT. S., 39; U. S. v. Smith, 163 F. 926.

Sec. 415v. Commutation of Sentence for Good Be-
havior and Parole.

The Acts of 1902 and 1906 granted, for good be-
havior the following deductions: —

Upon a sentence of not less than six months nor more
than one year, five days for each month ; upon a sentence of
more than one year and less than three years, six days
for each month; upon a sentence of not less than three
years and less than five years, seven days for each month;
upon a sentence of not less than five years and less than
ten years, eight days for each month; upon a sentence
of ten years or more, ten days for each month. "When a
prisoner has two or more sentences, the aggregate of his
several sentences shall be the basis upon which his de-
duction shall be estimated. Pages 2411-2412, Barnes'
1919 Federal Code.

Every prisoner whose record shows that he has ob-
served the rules of the institution and who has served
one-third of the total of such term, or terms for which
he was sentenced, or if sentenced for the term of his
natural life, has served not less than fifteen years, may
be released on parole, Act June 25, 1910, page 2412
Barnes' 1919 Federal Code.

Sec. 415w. Law of Perjury Applicable to Search
"Warrants.

Sections one hundred and twenty-five and one hundred
and twenty-six of the Criminal Code of the United States
shall apply to and embrace all persons making oath or
affirmation or procuring the same under the provisions
of this title, and such persons shall be subject to all the
pains and penalties of said sections. (Act June 15, 1917,
c. 30, Title XI, sec. 19, 40 Stat. 230.)

Sec. 415x. Proof of Grounds and Probable Cause.

A search warrant can not be issued but upon prob-
able cause, supported by affidavit, naming or describing
the person and particularly describing the property and
the place to be searched.

The judge or commissioner must, before issuing the
warrant, examine on oath the complainant and any wit-

Othee Offenses 689

ness he may produce, and require their affidavits or take
their depositions in writing and cause them to be sub-
scribed by the parties making them. (Act June 15, 1917,
c. 30, Title XI, sees. 3, 4, 40 Stat. 228.)

Search warrants; affidavits and depositions. — The af-
fidavits or depositions must set forth the facts tending
to establish the grounds of the application of probable
cause for believing that they exist.

These statutes should be read in connection with the
citations and suggestions contained in the paragraph
relating to illegal searches and seizures. y

Sec. 415y. Limitations.

No person shall be prosecuted, tried, or punished for
treason or other capital offenses, willful murder except-
ed, unless the indictment is found within three vears
next after such treason or capital offense is done or com-
mitted. (R. S. sec. 1043; Act April 30, 1790, c. 9, sec.
32, 1 Stat. 119.)

(b) No person shall be prosecuted, tried, or punished
for any offense, not capital, except as provided in section
one thousand and forty-six, unless the indictment is
found, or the information is instituted within three years
next after such offense shall have been committed. But
this act shall not have effect to authorize the prosecution,
trial or punishment for any offense, barred by the pro-
visions of existing laws. (R. S. sec. 1044; Act April
30, 1790, c. 9, sec, 32, 1 Stat. 119; April 13, 1876, c. 56,
19 Stat. 32.)

(c) Nothing in the two preceding sections shall ex-
tend to any person fleeing from justice. (R. S. sec. 1045;
Act April 30, 1790, c. 9, sec. 1 Stat. 119.)

(d) No person shall be prosecuted, tried, or punish-
ed for any crime arising under the revenue laws, or the
slave-trade laws of the United States, unless the indict-
ment is found or the information is instituted within five
years next after the committing of such crime.

No person shall be prosecuted, tried or punished for
any of the various offenses arising under the internal
revenue laws of the United States unless the indictment
is found or the information instituted within three years
next after the commission of the offense, in all cases

690 Federal Criminal Law Procedure.

where the penalty prescribed may be imprisonment in
the penitentiary, and within two years in all other cases;

Provided, That the time during which the person

committing the offense is absent from the

district wherein the same is committed shall not be
taken as any part of the time limited by law for the com-
mencement of such proceedings: Provided further that
the provisions of this act shall not apply to offenses com-
mitted prior to its passage: And provided further that
where a complaint shall be instituted before a Commis-
sioner of the United States within the period above limit-
ed, the time shall be extended until the discharge of the
Grand Jury at its next session within the district: And
provided further that this act shall not apply to offenses
committed by officers of the United States. (First para-
graph, R. S. sec. 1046; Acts March 26, 1804, c. 40, sec.
3, 2 Stat. 290; April 20, 1818, c. 91, sec. 9, 3 Stat. 452;
second paragraph, Act July 5, 1884, c. 225, sec. 1, 23
Stat. 122.)

(e) No suit or prosecution for any penalty or for-
feiture, pecuniary or otherwise, accruing under the laws
of the United States, shall be maintained, except in cases
where it is otherwise specially provided, unless the same
is commenced within five years from the time when the
penalty or forfeiture accrued: Provided, That the per-
son of the offender, or the property liable for such penalty
or forfeiture, shall, within the same period, be found with-
in the United States ; so that the proper process therefor
may be instituted and served against such person or
property. (R. S. sec. 1047; Acts March 2, 1799, c. 22,
sec. 89, *1 Stat. 695; March 26, 1804, c. 40, sec. 3, 2 Stat.
290; April 20, 1818; c. 91, sec. 9, 3 Stat. 452; Feb. 28,
1839, c. 36, sec. 4, 5 Stat. 322; March 3, 1863, c. 76, sec.
14, 12 Stat. 741; July 25, 1868, c. 236, sec. 1, 15 Stat.
183.)

(f ) No suit or action to recover any pecuniary penalty
or forfeiture of property accruing under the customs
revenue laws of the United States shall be instituted
unless such suit or action shall be commenced within
three years after the time when such penalty or for-
feiture shall have accrued: Provided, That the time of

Other Offenses 691

the absence from the United States of the person subject
to such penalty or forfeiture, or of any concealment or
absence of the property, shall not be reckoned within
this period of limitation. (Act June 22, 1874, c. 391,
sec. 22, 18 Stat. 190.)

No criminal prosecution shall be maintained under the
copyright Act unless the same is commenced within three
years after the cause of action arose. Act March 4, 1919.

Sec. 415z. Venue.

Capital cases; where triable.— The trial of offenses
punishable with death shall be had in the county where
the offense was committed, where that can be done with-
out great inconvenience. (R. S. sec. 729; J. C. sec. 40;
Act March 3, 1911, c. 231, sec. 40, 36 Stat. 1100.)

(b) Offenses on the high seas, or outside district,
where triable. — The trial of all offenses committed upon
the high seas, or elsewhere out of the jurisdiction of any
particular State or district, shall be in the district where
the offender is found, or into which he is first brought.
(R. S. sec. 730; J. C. sec. 41; Act March 3, 1911, c. 231,
sec. 41, 36 Stat. 1100.)

(c) Offenses begun in one district and completed in
another. — When any offense against the United States is
begun in one judicial district and completed in another,
it shall be deemed to have been committed in either, and
may be dealt with, inquired of, tried, determined, and
punished in either district, in the same manner as if it
had been actually and wholly committed therein. (R.
S. sec, 731; J. C.'sec. 42; Act March 3, 1911, c. 231, sec.
48, 36 Stat. 1100.)

(d) Suits for penalties and forfeitures, where brought.
— All pecuniary penalties and forfeitures may be sued for
and recovered either in the district where they accrue
or in the district where the offender is found. (R. S. sec.
732; J. C. sec. 43; Act March 3, 1911, c. 231, sec. 43, 36
Stat. 1100.)

(e) Suits for internal-revenue taxes, where brought. —
Taxes accruing under any law providing internal reve-
nue may be sued for and recovered either in the district
where the liability for such tax occurs or in the district

692 Federal Criminal Law Procedure.

where the delinquent resides. (R. S. sec. 733; J. C. sec.
44; Act March 3, 1911, c. 231, sec. 44, 36 Stat. 1100.)

(f) Seizures, where cognizable. — Proceedings on
seizure made on the high seas, for forfeiture under any
law of the United States, may be prosecuted in any dis-
trict into which the property so seized is brought and
proceedings instituted. Proceedings on such seizure
made within any district shall be prosecuted in the dis-
trict where the seizure is made, except in cases where it
is otherwise provided. (R. S. sec. 734; J. C. sec. 45;
Act March 3, 1911, c. 231, sec. 45, 36 Stat. 1100.)

(g) Capture of insurrectionary property, where cog-
nizable.— Proceedings for the condemnation of any prop-
erty captured, whether on the high seas or elsewhere
out of the limits of any judicial district, or within any
district, on account of its being purchased or acquired,
sold or given, with intent to use or employ the same, or
to suffer it to be used or employed, in aiding, abetting,
or promoting any insurrection against the Government
of the United States, or knowingly so used or employed
by the owner thereof, or with his consent, may be prose-
cuted in any district where the same may be seized, or
into which it may be taken and proceedings first institut-
ed. (R. S. sec. 735; J. C. sec. 46; Act March 3, 1911, c.
231, sec. 46, 36 Stat. 1100.)

(h) Certain seizures cognizable in any district into
which the property is taken. — Proceedings on seizures
for forfeiture of any vessel or cargo entering any port
of entry which has been closed by the President -in pur-
suance of law, or of goods and chattels coming from a
State or section declared by proclamation of the Presi-
dent to be in insurrection into other parts of the United
States, or of any vessel or vehicle conveying such prop-
erty, or conveying persons to or from such State or sec-
tion, or of any vessel belonging, in whole or in part, to
any inhabitant of such State or section, may be pros-
ecuted in any district into which the property so seized
may be taken and proceedings instituted; and the district
court thereof shall have as full jurisdiction over such
proceedings as if the seizure was made in that district.

Other Offenses 693

(E. S. sec. 564; J. C. sec. 47; Act March 3, 1911, c. 231,
sec. 47, 36 Stat. 1100.)

Sec. 415zz. Carriers — Indictment for Falsifying Ac-
counts of Interstate Carrier.

An indictment under Interstate Commerce Act of Feb.
4, 1887, Compiled Statutes, 8592, for falsifying the rec-
ords of an interstate carrier need not charge that such
records were records prescribed by the Interstate Com-
merce Commission, Kennedy vs. U. S., 275 F. 183.

CHAPTER XXIV.

FORM OP INDICTMENT.

Form or Indictment under Section 225, old Sectio
4046, etc., for embezzlement:

"The United States of America.

"At a District Court of the United States of America, for the Dis-
trict of Massachusetts, begun and holden at Boston, within and for
said district, on the first. Tuesday of December in the year of our
Lord one thousand nine hundred and nine.

"First Count. The jurors for the United States of America, within
and for the District of Massachusetts, upon their oath, present that
Frank H. Mason, of Boston, in said district, during all of the year
nineteen hundred and eight, was, and ever since then has been, an
officer of jthe United States, to wit, clerk of the District Court of the
United States for the District of Massachusetts, and, on the first day
of February, in the year nineteen hundred and nine, had in his pos-
session and under his control, to wit, at Boston aforesaid, certain
money of the United States, a particular description whereof is to
said grand jurors unknown, to the amount and value of three hundred
and eighty-seven dollars, which during said year nineteen hundred
and eight had come into his possession and under his control in the
execution of his office as such officer and clerk, and under authority
and claim of authority as such officer and clerk, and which he should,
on said first day of February, in the year nineteen hundred and nine,
have accounted for and paid to the United States at Boston aforesaid
in the manner provided by law; and that said Frank H. Mason, on
said first day of February, in the year nineteen hundred and nine, at
Boston aforesaid, the same money unlawfully and feloniously did
embezzle.

"Second Count. And the jurors aforesaid, on their oath aforesaid,
do further present, that said Frank H. Mason during all of the year
nineteen hundred and eight was, and ever since has been, an officer
of the United States, to wit, clerk of the District Court of the United
States for the district of Massachusetts, and on said first day of
February, in the year nineteen hundred and nine, had in his possession
ami under his control, to wit, at Boston aforesaid, certain public
moneys of the United States, a particular description whereof is to
said grand jurors unknown, to wit, moneys to the amount and of
the value of three hundred and eighty-seven dollars, which during
said year nineteen hundred and eight had come into his possession
and under his control in the execution of his office as such officer,
and under authority and claim of authority as such officer, and were
a portion of a surplus of fees and emoluments of his said office over
and above the compensation and allowances authorized by law to be

(694)

Form of Indictment 695

retained by him for said year nineteen hundred and eight, which
said public moneys said Frank H. Mason, on said first dav of February,
in the year nineteen hundred and nine, as such officer was charged,
by certain acts of Congress, to wit, sections 82.°,, 828, and 844. of
the Revised Statutes of the United States, and the Act approved
June 28, 1902, 32 Statutes at Large, chapter 1301, and by divers other
Acts of Congress, safely to keep; that said Frank H. Mason, on said
first day of February, in the year nineteen hundred a->d nine, at
Boston aforesaid, the same public moneys unlawfully did fail safely
to keep as required by said Acts of Congress, and, on the contrary,
the same then and there unlawfully did convert to his own use, and
that thereby said Frank H. Mason then and there was gu'lty of em-
bezzlement of said public moneys so converted."

For Loss of Life by Misconduct of Officers, Owners,
Charterers, Inspectors, Etc., of Vessels, Under

Section 282.

(Approved in U. S. vs. Van Schaick, 134 Federal, 594.,'
Indictment No. 1 charges that Van Schaick w?s —
Guilty of misconduct, negligence and inattention to
duty on such vessel as such master and captain, in that
he then and there unlawfully had and kept on said vessel,
among other life preserves, adjustable to the bodies of
human beings, which had been place thereon for the use
of the passengers and other persons on board of the said
vessel in case of emergency, and intended for such use,
divers, to wit, nine hundred and upwards, unsuitable,
inefficient, and useless life preserves; that is to say, in
the respect that, according to the laws relating thereto,
and the regulations thereunder, the said life preserves
on said vessel were required to be in good order and
accessible for immediate use, adjustable to the bodies of
passengers, and made of good sound cork blocks, or
other suitable material, with belts and shoulder-straps
properly attached in the manner prescribed by the laws
of Congress relating thereto and the rules and regula-
tions thereunder as aforesaid, and that every such life
preserver should contain at least six pounds of good cork,
which should have bouyancy of at least four pounds
to each pound of cork; but in truth and in fact, large
numbers of the same, to the amount of nine hundred and
upwards, as aforesaid, through the unlawful misconduct,

696 Federal Criminal Law Procedure.

negligence, and inattention to his duties by the said
master and captain as aforesaid were unsafe, unsuitable,
and unservicable, so that, at the times aforesaid, while
the said William H. Van Schaick was master and captain
as aforesaid, of the said steamboat, the said life pre-
servrs, in large numbers, to wit, nine hundred of the
same and upwards, were utterly useless for the protec-
tion and saving of human life, in that, in many instances,
the covers thereof were rotten, and not of sufficient
strength and soundness to make them impervious to
water, and the shoulder-straps and bands of the same
were so decayed that it was impossible to securely fasten
the said life preserves to the human body; and the said
life preservers did not have the buoyancy required by
law; and the unsuitability and the inefficiency and use-
lessness of the said life preservers for the purpose which
they were intended to serve should have been known to
the said William H. Van Schaick, and he might, by the
exercise of ordinary observation and inquiry, have ascer-
tained the same, and should so have ascertained before
the said vessel started on the excursion hereinafter men-
tioned; and which said unsuitable and inefficient ap-
pliances, he, the said William H. Van Schaick, notwith-
standing the premises, unlawfully caused, suffered, and
permitted to be and remain on said vessel, and he was
guilty of misconduct, negligence and inattention to his
duties upon said vessel, in that he permitted the said
vessel to go, and took the said vessel, on said excursion,
with the said unsuitable and inefficient life preservers on
board, and caused, suffered, and permitted the same to
be tendered and held out for the use of the passengers
and other persons on board of said steamboat, at the
time of her destruction by fire as hereinafter mentioned.

For Conspiracy to Violate the Lottery Statute.

(Champion vs. Ames, 47 Law Ed., 496.)

The indictment charged, in its first count, that on or
about the 1st day of February, A. D. 1899, in Dallas
County Texas, "C. F. Champion, alias W. W. Ogden, W.
F. Champion, and Charles B. Park, did then and there

Form of Indictment 697

unlawfully, knowingly, and feloniously conspire together
to commit an offense against the United States, to wit,
for the purpose of disposing of the same, to cause to be
carried from one state to another in the United States,
to wit, from Dallas, in the State of Texas, to Fresno, in
the State of California, certain papers, certificates, and
instrument purporting to be and representing tickets, as
they then and there well knew, chances, shares, and in-
terests in and dependent upon the event of a lottery,
offering prizes dependent upon lot and chance, that is to
say, caused to be carried, as aforesaid, for the purpose
of disposing of the same, papers, certificates, or instru-
ments purporting to be tickets to represent the
chances, shares, and interests in the prizes which by lot
and chance might be awarded to persons, to these grand
jurors unknown, who might purchase said papers, certifi-
cates, and instruments, representing and purporting to
be tickets, as aforesaid, with the numbers thereon shown
and indicated and printed, which by lot and chance should
on a certain day, draw a prize or prizes at the purport-
ed lottery or chance company, to wit, at the purported
monthly drawing of the so-called Pan-American Lot-
tery Company, which purported to draw monthly at
Asuncion, Paraguay, which said Pan-American Lottery
Company purported to be an enterprise offering prizes
dependent upon lot and chance, the specified method of
such drawing being unknown to the grand jurors, but
which said papers, certificates, and instruments purport-
ing to be and representing tickets upon their face purport-
ing to be entitled to participation in the drawing of a
certain capital prize amounting to the sum of $32,000, and
which said drawings for said capital prize, or the part or
parts thereof allotted or to be allotted in conformity with
the scheme of lot and chance, were to take place monthly,
the manner and form of which is to the grand jurors un-
known, but that said drawing and lot and chance by
which said prize or prizes were to be drawn was purport-
ed to be under the supervision and direction of Enrigue
Montes de Leon, manager, and Bernardo Lopez, interven-
er, and which said papers, certificates, and instruments
purporting to be tickets of the said Pan-American Lot-

098 Federal Criminal Law Procedure.

tery Company were so divided as to be called whole,
half, quarter, and eighth tickets, the whole tickets to
be sold for the sum of $2, the half tickets for the sum of
$1, the quarter tickets for the sum of 50 cents, and the
eighth tickets for the sum of 25 cents."

The indictment further charged that "in pursuance to
said conspiracy, and to effect the object thereof, to wit,
for the purpose of causing to be carried from one state
to another in the United States, to wit, from the State
of Texas to the State of California aforesaid, for the pur-
pose of disposing of the same, papers, certificates, and
instruments purporting to be and representing tickets,
chances, and shares and interests in and dependent upon
lot and chance, as aforesaid, as they then and there well
knew, said W. F. Champion and Charles B. Pard did
then and there, to wit, on or about the last day aforesaid,
in the Dallas Division of the Northern District of Texas
aforesaid, unlawfully, knowingly, and feloniously, for
the purpose of being carried from one State to another
in the United States, to wit, from Dallas, in the State
of Texas, to Fresno, in the State of California, for the
purpose of disposing of the same, deposit and cause to
be deposited and shipped and carried with and by the
Wells-Fargo Express Company, a corporation engaged
in carrying freight and packages from station to station
along and over lines of railway, and from Dallas, Texas,
to Fresno, California, for hire, one certain box or pack-
age containing, among other things, two whole tickets
or papers or certificates of said purported Pan-American
Lottery Company, one of which said whole tickets is
hereto annexed by the grand jury to this indictment and
made a part hereof. ' '
Under Section 5508, Conspiracy to Endanger, Etc.,

Citizens in the Exercise of Civil Rights.
(157 Federal, page 722.)

Omitting formal parts, the eleventh count of the in-
dictment is as1 follows:

That on the 1st day of June, 1906, the defendants
(naming them) did unlawfully and feloniously conspire,

Form or Indictment 699

combine, confederate, and agree together to injure, op-
press, threaten and intimidate a certain citizen of the
United States, to wit, John Reed, in the free exercise and
enjoyment of rights and privileges secured to him by
the Constitution and laws of the United States, to wit,
the right to the free exercise and enjoyment of freedom
from involuntary servitude and slavery; that in pur-
suance of said unlawful and felonious conspiracy, com-
bination, confederation, and agreement, and to effect the
object thereof, the said defendants (naming them) did
then and there unlawfully and feloniously arrest, hold,
imprison, and guard him, the said John Reed, and then
and there unlawfully and feloniously compel by threats
and intimidation him, the said John Reed, to then and
there work and labor involuntarily and against his will
for said defendants (naming them), contrary to the form
of the statute in such case made and provided, and
against the peace and dignity of the United States.

Under Peonage Statute.

(United States vs. McClellan, 127 Federal, page 971.)
The grand jurors of the United States, selected,
chosen, and sworn in and for the Eastern Division of the
Southern District of Georgia, upon their oaths present:
That heretofore, to wit, on the eleventh day of August
in the year of our Lord one thousand nine hundred and
two, one Thomas J. McClellan, late of said division and
district, within said division and district, and within the
jurisdiction of this Court, did then and there knowingly
and unlawfully cause one John Wesley Boney to be held
to a condition of peonage; for that the said Thomas J.
McClellan in the county of Ware, in the State of Georgia,
did forcibly seize the body of the said John Wesley
Boney, without his consent and without authority of
law, and did then and there sell the body of the said
John Wesley Boney, without his consent and without
authority of law, to Edward J. McRee, William McRee,
and Frank I. McRee, then and there causing him, th
said John Wesley Boney, to be held by the said Edward
J. McRee, William McRee, and Frank I. McRee to a

700 Federal Criminal, Law Procedure.

condition of peonage; for that the said Edward J. Mc-
Ree, William McRee and Frank I. McRee then and there
having obtained the custody of the body of the said John
Wesley Boney, did then and there, by force and against
the will of him, the said John Wesley Boney, and with-
out authority of law, transport the body of the said John
Wesley Boney to the county of Lowndes, in said State,
and did then and there hold the said John Wesley Boney,
against his will, to labor for them, to work out a debt
which they, the said Edward J. McRee, William Mc-
Ree, and Frank I. McRee, claimed to be due them by
the said John Wesley Boney, and to labor under the
terms of an alleged cantract between them, the said Ed-
ward J. McRee, William McRee, and Frank I. McRee,
and the said John Wesley Boney; he, the said Thomas
J. McClellan, then and there well knowing that the said
John Wesley Boney would be so held as aforesaid by
the said Edward J. McRee, William McRee, and Frank
I. McRee; whereby, in the manner aforesaid, the said
Thomas J. McClellan did cause the said John Wesley
Boney to be held to a condition of peonage, contrary to
the form of the statute in such case made and provided,
and against the peace and dignity of the United States. ' '

For Returning One to Peonage.

(Page 727, 49 Law Ed.; approved in Clyatt vs. U. S., by
the Supreme Court, 197 U. S., 207.)

The grand jurors of the United States of America im-
paneled and sworn within and for the district aforesaid,
on their oaths present that one Samuel M. Clyatt, here-
tofore, to wit: on the eleventh day of February, in the
year of our Lord one thousand nine hundred and one,
in the county of Levy, State of Florida, within the dis-
trict aforesaid, and within the jurisdiction of this court,
did then and there unlawfully and knowingly return one
Will Gordon and one Mose Ridley to a condition of
peonage, by forcibly, and against the will of them, the
said Will Gordon and the said Mose Ridley, returning
them, the said Will Gordon and Mose Ridley, to work
to and for Samuel M. Clyatt and H. H. Tift, co-partners

Form of Indictment 701

doing business under the firm name and style of Clyatt
& Tift, to be held by them, the said Clyatt & Tift, to
work out a debt claimed to be due to them, the said Clyatt
& Tift, by the said Will Gordon and Mose Kidley; contrary
to the form of the statute in such case made and pro-
vided, and against the peace and dignity of the United
States."

For Polygamy, Under Section 313, Approved by Su-
preme Court in Cannon vs. United States, 116
U. S., 55, 29 Law Ed., 563.

The grand jury of the United States of America, with-
in and for the district aforesaid, in the territory afore-
said, being duly empaneled and sworn, on their oaths
do find and present: that Angus M. Cannon, late of said
district, in the territory aforesaid, to wit: on the first
day of June, in the year of our Lord 1882, and on divers
other days and continuously between the said first day
of June, A. D. 1882, and the first day of February, A. D.
1885, at the County of Salt Lake and Territory of Utah,
did unlawfully cohabit with more than one woman, to
wit: one Amanda Cannon and one Clara C. Mason, some-
times known as Clara C. Cannon, against the form of the
statute of the said United States in such case made and
provided, and against the peace and dignity of the same.

Under Section 3242 as Amended Illegal Retail Liquor

Dealer, Approved in Ledbetter vs. U. S., 170

U. S., 608, 42 Law Ed., 1162.

That Lewis Ledbetter, late of said district, heretofore,
to wit, on the 10th day of April, A. D. 1896, in the County
of Appanoose, and town of Dallas, in the Southern Dis-
trict of Iowa, and within the jurisdiction of this Court,
did then and there wilfuly, unlawfully, and feloniously
carry on the business of a retail liquor dealer without
first having paid the special tax therefor, as required
by law, contrary to the statute in such case made and
provided, and against the peace and dignity of the United
States of America.

702 Federal Criminal Law Procedure.

For Sale of Oleomargarine Not Properly Marked and

Branded; Approved in Ex Parte Kollock, 165

U. S., 526, Law Ed., 814.

The first indictment against Kollock set forth that pur-
suant to the authority conferred on the Commissioner
of Internal Revenue by the 6th section of the Act of
August 2, 1886, "the said commissioner, with the ap-
proval of the Secretary of the Treasury, did, on the
twelfth day of March, in the year of our Lord one thou-
sand eight hundred and ninety-one, proscribed certain re
gulations, in substance and to the effect, among other
things, that the wooden or paper packages in which re-
tail dealers in oleomargarine were required by said Act
of Congress to pack the oleomargarine sold by them,
such retail dealers, should have printed or branded upon
them in the case of each sale, the name and address of
the retail dealer making the same; likewise, the words
'pound' and 'oleomargarine' in letters not less than one-
fourth of one inch square, and likewise a figure or
figures of the same size, indicating (in connection with
the said words 'pound' and 'oleomargarine'), the quan-
tity of oleomargarine so sold, written, printed, or brand-
ed on such wooden or paper packages and placed be-
fore the said word 'pound,' and that the said words 'oleo-
margarine' and 'pound' so required to be printed or
branded on such packages as aforesaid in the case of
each sale as aforesaid, and the said figure or figures so
indicative of quantity as aforesaid in the case of each
sale as aforesaid, and so required to be written, printed,
or branded on such packages as aforesaid should be so
placed thereon as to be plainly visible to the purchaser
at the time of the delivery to him, such purchaser, by re-
tail dealers of the oleomargarine sold to such purchaser
by them, such retail dealers."

And thus continued :

"That on the fourteenth day of January, in the year of our Lord
one thousand eight hundred and ninety-six, and at the District afore-
said, one Israel C. Kollock, late of the District aforesaid, being then
and there engaged in business as a retail dealer in oleomargarine,
at a store of him, the said Israel C. Kollock, situated on Fourth Street,
southeast, in the city of Washington, in the said district, did then

Form of Indictment 703

and there, and at said store knowingly sell and leliver to a certain
Florence Davis one-half of one pound of olemargarine as and for
butter, which said one-half of one pound of olemargarine was not
then and there and at the time of such sale and delivery thereof,
packed in a new wooden or paper package having then and there print-
ed or branded thereon the name and address of him, the said Israel
C. Kollock, in letters one-fourth of one inch square, and the words
'pound' and 'olemargarine' in letters of like size, and a figure or fig-
ures of like size written, printed, or branded thereon indicative (in
connection with the said words 'pound' and 'oleomargarine') of the
quantiity of oleomargarine so sold and delivered to her, the said
Florence Davis, as aforesaid, and which said one-half of one pound
of oleomargarine at the time it was so knowingly sold and delivered
to her, the said Florence Davis, as aforesaid, by him, the said Israel
C. Kollock, as aforesaid, was then and there and at the time of the
sale and delivery thereof as aforesaid packed in a paper package
upon which there had not been printed, branded, or written any or
either of the marks and characters aforesaid so required by the
said regulations to be placed thereon as aforesaid as he, the said Israel
C. Kollock, then and there well knew, against the form of the statute,
etc., etc."

For Conspiracy to Violate Section 5358, to Plunder or
Steal from Vessel, (7 Federal, 716).

The indictment alleges that the defendants —

"Did conspire, combine, confederate, and agree together between
and among themselves, to plunder certain goods and merchandise,
a more particular description of which said goods and merchandise
being to the grand jurors aforesaid unknown, then and there belong-
ing to the steamboat City of Vicksburg, the said steamboat being then
and there wrecked and in distress on the waters of the Mississippi
River, within the admiralty and maritime jurisdiction of the United
States, while engaged in commerce and navigation in said river, to
wit, between Vicksburg, in the State of Mississippi, and St. Louis,
in the State of Missouri; and that, to effect the object of the said
conspiracy the said Hercules Sanche then and there furnished and
loaned to the said John Woods and Elias Boatright a certain skiff
to be used by them, the said Woods and the said Boatright, in plun-
dering said goods and merchandise from the said steamboat."

Under Section 5438, (Bridgeman vs. United States, 140

Federal, 578).

The twenty-first count is in these words:

"And the grand jurors aforesaid, upon their oaths and affirmations
aforesaid, do further find, charge and present: That one Morris L.

704 Federal Criminal Law Procedure.

Bridgeman, late of the State and district of Montana, before and on
the 5th day of October, A. D. 1901, and thenceforth until and on and
after the 31st day of January, A. D. 1902, was then and there the
United States Indian Agent at and of the Fort Belknap Indian reser-
vation, in the State and district of Montana. That on the said 31st
day of January, A. D. 1902, in the State and district of Montana, the
said Morris L. Bridgeman, United States Indian Agent as aforesaid,
did then and there knowingly, wilfully, and unlawfully make and
cause to be made, and present and cause to be presented for approval,
to the Commissioner of Indian Affairs of the United States, being then
and there an officer of the civil service of the United States, a false,
fictitious, and fraudulent claim upon and against the government of
the United States for the sum of two hundred and eighty-five dollars
and eighty-eight cents; that is to say, a certain claim purporting
that the said Morris L. Bridgeman, as United States Indian Agent
as aforesaid, had then and there expended and paid the said sum of
two hundred and eighty-five dollars and eighty-eight cents to two
certain Indians, to wit, Turns Around and Bracelet, in payment of
fourteen thousand two hundred and ninety-four feet of rough lumber,
and that the said aggregate sum of two hundred and eighty-five dol-
lars and eighty-eight cents had been so expended and paid by said
Morris L. Bridgeman, as United States Indian Agent, as aforesaid
by paying to said Indian, Turns Around, the sum of eighty-five dollars
and eighty-eight cents for four thousand two hundred and ninety-
four feet of rough lumber, and by paying to said Indian, Bracelet,
the sum of two hundred dollars for ten thousand feet of rough lumber.
That the said claim was then and there, to wit, at the time of the
making and presenting thereof as aforesaid, false, fictitious, and
fraudulent in this: that the said Morris L. Bridgeman, United States
Indian Agent, as aforesaid, had not paid the said sum of two hundred
and eighty-five dollars and eighty-eight cents to said Indians, Turns
Around and Bracelet, or either of them, in payment of fourteen
thousand two hundred and ninety-four feet of rough lumber, and had
not paid to said Indian, Turns Around, the sum of eighty-five dollars
and eighty-eight cents for four thousand two hundred and ninety-
four feet of rough lumber, and had not paid to said Indian; Bracelet,
the sum of two hundred dollars for ten thousand feet of rough lumber;
and that the said Morris L. Bridgeman, United States Indian Agent,
as aforesaid, was not then and there entitled to have the said claim,
so made and presented by him, as aforesaid, approved, he, the said
Morris L. Bridgeman, United States Indian Agent, as aforesaid, at
the time of so making and presenting the said claim, then and thera
well knowing the same to be false, fictitious, and fraudulent. And
so the grand jurors aforesaid, upon their oaths aforesaid, do say
that the said Morris L. Bridgeman, United States Indian Agent, as
aforesaid, in the State and district of Montana, and in manner and
form aforesaid, did, on the thirty-first day of January, A. D. 1902,
make and cause to be made, and present and cause to be presented,

Form of Indictment f05

for approval, to the said Commissioner of Indian Affairs of the United
States, a claim upon and against the Government of the United States,
which said claim, he, the said Morris L. Bridgeman, then and there
well knew to be false, fictitious and fraudulent, contrary to the form
of the statute in such case made and provided, and against the peace
and dginity of the United States of America."

Under Section 39, (Vernon vs. United States, 146

Federal, 122).

"That J. B. Vernon, whose Christian name is to the grand jurors
aforesaid unknown, on the 1st day of August, in the year 1902, in the
Northern Division of the Eastern Judicial District of Missouri, and
within the jurisdiction of this court, did unlawfully, feloniously, and
corruptly offer and give a large sum (the exact amount thereof being to
the grand jurors aforesaid unknown) of the lawful money of the United
States to one Charles L. Blanton, who was then and there, as he the said
J. B. Vernon then and there well knew, a person acting for and on be-
half of the United States in an official function under and by the
authority of a department of the Government, to wit, the Treasury
Department of the United States, with the intent then and there
of him, the said J. B. Vernon, to unlawfully, feloniously and corrupt-
ly influence the action of the said Charles L. Blanton on a matter
then and there pending before him in said official function as afore-
said, that is to say, in making examination of and reporting and
recommending to the Secretary of the Treasury a site for a United
States post-office at Kirksville, Missouri, contrary to the form of the
statute in such case made and provided and against the peace and
dignity of the United States."

For Larceny of Personal Property of United States,

Under Section 46, (United States vs. Jones,

69 Federal, 973).

The first count of the indictment charged that the de-
fendant, on the fifteenth day of June, 1893, and before
the finding of this indictment, —

"Did unlawfully and feloniously take, steal and carry away from
the United States Mint at Carson City, State and District of Nevada,
personal property, to wit, gold metal, which said personal property
belonged to the United States of America, and which said personal
property was of the value of $23,000; the said unlawful and felo-
nious taking and carrying away being with the intent, then and there,
to steal the said property, and defraud the United States of America
thereof," etc.
45

706 Federal Criminal Law Procedure.

Under Section 79, (Green vs. United States, 150 Federal,

561).

"He, the said John Francis Green, then and there being at the time
and place of said registration as aforesaid, came in person before
Frank Asche Faron, then and there and before that time being a depu-
ty registrar of voters at said registration for said election aforesaid,
and made application and made and subscribed an affidavit for the
purpose of causing himself to be registered as a voter at said regis-
tration, for said election; and the said John Francis Green so making
the said application to be registered as said registraton, at and upon
the making of said affidavit, it became and was then and there material
to know whether the said John Francis Green had been naturalized
as a citizen of the United States of America; and, thereupon, the said
John Francis Green then and therewas in due manner sworn by the
said Frank Asche Faron, and made oath before him then and there of
and concerning the truth of the matter contained in the said affidavit;
he, the said Frank Asche Faron, then and there being said deputy
registrar of voters as aforesaid, and having then and there competent
authority to administr the said oath to the said John Francis Green in
that behalf; and the said John Francis Green so being sworn as
aforesaid, then and there, in and by his said affidavit, wilfully, cor-
ruptly, and falsely, and contrary to his said oath, did depose and swear,
as in the said affidavit set forth, that he was naturalized in the State
of California on the 8th day of November, in the year 1900, whereas,
in truth and fact, as the said John Francis Green well knew at the
time he was so sworn and made affidavit, as aforesaid, the said John
Francis Green at the time he was so sworn and made affidavit, as
aforesaid, had never been naturalized as a citizen of the United States
of America, and was an alien."

Under Section 126, Subornation of Perjury, (Boren vs.
United States, 144 Federal, 801).

The first count charges that the accused, ' ' on the four-
teenth day of November, in the year of our Lord one
thousand nine hundred and four; at Redding, in the
county of Shasta, State and Northern District of Cali-
fornia, then and there being, did then and there unlaw-
fully, wilfully, knowingly, and feloniously precure, in-
stigate, and suborn one John M. Layton to appear and
take an oath before one Frank M. Swasey that a certain
declaration and affidavit by him, John M. Layton, sub-
scribed was true, said declaration and affidavit being then
and there a matter in which the laws of the United States
authorize an oath to be administered — that is to say,

Form of Indictment 707

a sworn statement, — for the purchase of timber and
stone lands described therein as the northwest quarter
of Section eight, twonship thirty-two north, of range
eight west, in the district of lands subject to sale at
Redding, California, and said Frank M. Swasey was
then and there an officer competent to administer said
oath— that is to say, the register of the United States
land office at Redding— and that, in accordance with said
procurement, instigation, and subornation, the said Frank
M. Layton did appear before the said Frank M. Swasey
and take an oath that the said Harry W. Miller, Frank
E. Kincart, and William H. Boren, and each of them,
did then and there unlawfully, wilfully, knowingly, and
feloniously procure, instigate, and suborn said John M.
Layton wilfully and contrary to his oath to state and
subscribe in said declaration and affidavit a certain false
and untrue material statement that he, John M. Lavton,
had personally examined the lands mentioned in said
declaration and affidavit, and that he did not apply to
purchase the land above described on speculation, but in
good faith to appropriate it to his own exclusive use and
benefit, and that he had not directly or indirectly made
any agreement or contract, or in any way or manner,
with any person or persons whomsoever, by which the
title he might acquis from the United States may inure
in whole or in part to the benefit of any person except
himself, which statement he, John M. Layton, at the
time of stating and subscribing the same, did not believe
to be true, and knew to be untrue, in this: that he, John
M. Layton had not personally examined said lands, and
had theretofore entered into a contract for the sale of
said land to the Washington Mill & Lumber Company.
And that the said Harry W. Miller, Frank E. Kincart,
and William H. Boren, and each of them, at the time of
the aforesaid procurement, instigation, and subornation,
well knew that the aforesaid statement was a false and
untrue material statement, and well knew that said John
M. Layton did not believe the same to be true. ' '

708 Fedekal Criminal, Law Pboceduee.

Under Section Clause of Section 5395, False Oath in

Naturalization, (Moore v. United States

144 Federal, 962).

"That George K. Moore, to wit, on the 10th day of November, in the
year of our Lord nineteen hundred and two, in the said district and
within the jurisdiction of said court, in a proceeding for natural-
ization of one Setrack G. Moomjian,, then and there in the Common
Pleas Division of the Supreme Court of the State of Rhode
Island, in and for the county of Providence pending, knowingly and
falsely before Alfred 0. Makee, a notary public in and for the County
of Providence, in said State of Rhode Island, duly qualified and auth-
orized to administer oaths to persons making affidavits in proceedings
for naturalization, did make a false affidavit touching matters in issue,
and material in said proceedings for the naturalization of said Se-
trak G. Moomjian; in this, to wit, that he, the said George K. Moore,
in said affidavit falsely swore that he, said Setrak G. Moom:
had resided in Providence, in the said State of Rhode Island, for
seven years last past, whereas in truth and in fact, the said Setrak
G. Moomjian was at the date aforesaid, to wit, on the 10th day of
November, A. D. 1902, a resident of the commonwealth of Massachu-
setts, to wit, the city of Worcester, and was not a resident of the
State of Rhode Island, nor had he been such resident for a period of
more than one year next before the 10th day of November, A. D. 1902.
And the grand jurors aforesaid, on their oath aforesaid, further pre-
sent that said affidavit so as aforesaid made by the said G i"
Moore was false and untrue, and was by the said George K. Moore
known to be so false and untrue at the time of the making thereof,
and that the said George K. Moore therein swore falsely to the resi-
dence of said Setrak G. Moomjian, contrary to the form of the statute
in such case made and provided, and against the peace and dignity
of the United States."

For Murder on the High Seas, (St. Clair vs. United,
States, Book 38 Law Ed., 937).

The indictment charged that Thomas St. Clair, Her-
man Sparf, and Hans Hansen, mariners, late of that dis-
trict, on the 13th day of January, 1893, with force and
arms, on the high seas, and within the jurisdiction of the
Court, and within the admiralty and maritime jurisdic-
tion of the United States, and out of the jurisdiction of
any particular State of the United States, in and on board
of an American vessel, the bark Hesper, belonging to a
citizen or citizens of the United States, whose name or
names are or were to the grand jurors unknown, did, with

Form of Indictment 709

a certain instrument or weapon (the character and name
of which were to the grand jury unknown) then and
there held in the hands of one of the defendants (but
of which particular one was to the grand jurors un-
known) ''then and there piratically, wilfully, and feloni-
ously, and with malice aforethought, strike and beat the
said Maurice Fitzgerald, then and there giving to the
said Maurice Fitzgerald, several grievous, dangerous,
and mortal wounds, and did then and there, to wit,
at the time and place last above mentioned, him the said
Maurice Fitzgerald cast and throw from and out of the
said vessel into the sea, and plunge, sink, and drown him
the said Maurice Fitzgerald in the sea aforesaid ; of which
said mortal wounds, casting, throwing, plunging, sink-
ing, and drowning the said Maurice Fitzgerald in and
upon the high seas aforesaid, out of the jurisdiction of
any particular State of the United States of America, then
and there instantly died.

"And the grand jurors aforesaid, upon their oath aforesaid, do say,

that by reason of the casting and throwing the said Maurice iPitz-

gerald in the sea as aforesaid, they cannot describe the said mortal

wounds or the character and nature of said weapon or instrument. And

so the grand jurors aforesaid, upon their oaths aforesaid, do say that

the said Thomas St. Clair, Herman Sparf, and Hans Hansen, him

the said Maurice Fitzgerald at the time and place as aforesaid, upon

the high seas as aforesaid, out of the jurisdiction of any particular

State of the United States of America, in and upon the said American

vessel, within the jurisdiction of the United States of America and of

the admiralty and maritime jurisdiction of the said United States

of America and of this court, in the manner and form aforesaid,

piratically, wilfully, feloniously, and with malice aforethought, did
kill and murder, against the peace and dignity of the United States

of America, and contrary to the form of the statute of the said United

States of America, in such case made and provided."

For Falsely Certifying Checks Under Section 5208.

(Approved in Potter vs. U. S., 155 U. S., 444; 39 Law Ed.,

215.)

The count, after stating time and venue, and that the
defendant was president of the Maverick National Bank,
and authorized to lawfully certify checks, charged.

"That said Potter as such president as aforesaid, did then and
there, to wit, on said twenty-third day of July, at Boston, aforesaid,

710 Fedeeal Ceiminal Law Peoceduee.

within said district, and within the jurisdiction of this court, unlaw-
fully, knowingly, and wilfully certify a certain check which said
check was then and there drawn upon said association for the amount
of twenty-four hundred and fifty dollars by certain persons, to wit,
Irving A. Evans, Austin B. Tobey, and William S. Bliss, copartners,
then and there doing business under the firm name and style of
Irving A. Evans and Company, and which said check was then and
there of the tenor following — that is to say:

'Boston, July 23, 1891. $2450. No. 54493.

Maverick National Bank.

Pay to the order of Hayward & Townsend, $2450, twenty-
four hundred and fifty dollars.

Irving A. Evans & Co.

by then and there writing, placing and putting in and upon and
across the face of said check the words and figures following — that
is to say:

'Maverick National Bank.

Certified July 23, 1891.

Pay only through clearing house.

A. P. Potter, P.'
(meaning said Asa P. Potter, such president as aforesaid.)

' ■ , Paying Teller.'

that the said persons, as copartners under the firm name and style
as aforesaid, by whom said check was then and there drawn as afore-
said, did not then and there, to wit, at the time said check was so
certified by said Potter as aforesaid, have on deposit with said associa-
tion an amount of money then and there equal to the amount then
and there specified in said check, to wit, the amount of twenty-four
hundred and fifty dollars in money, as he, the said Potter, then and
there well knew, against the peace and dignity of the United States
and contrary to the form of the statute in such case made and pro-
vided.

Under Section 5209, for Embezzlement by Bank

Officers.

(Approved in United States vs. Northway, 120 U. S.,
327; 30 Law Ed., page 665.)

Form of Indictment 711

The count charges that the defendant, with proper al-
legations of time and place, "was then and there presi-
dent and agent of a certain national banking association;
to wit, 'The Second National Bank of Jefferson,' there-
tofore duly organized and established and then existing
and doing business in the Village of Jefferson and County
of Ashtabula, in the division and district aforesaid, under
the laws of the United States; and the said Stephen A.
North way, as such president and agent, then and there
had and received in and into his possession certain o*'
the moneys and funds of said banking association of
the amount and value of twelve thousand dollars, to wit,
then and there being the property of said banking as-
sociation, and then and there being in the possession of
said Stephen A. Northway, as such president and agent
aforesaid, he, the said Stephen A. Northway, then and
there wrongfully unlawfully, and with intent to injure
and defraud said banking association, did embezzel and
convert to his, said Stephen A. Northway 's own use,';
etc.

Under Section 32 for Falsely Pretending to be an United

States Officer.

did then and there unlawfully, fraudulently, and

falsely assume and pretend to be an officer, acting under
the authority of the United States, to wit, a Deputy
United States Marshal, and did then and there take upon
himself to act as such Deputy United States Marshal,
and did then and there, in such pretended character,

obtain from five dollars, lawful current money of

the United States of America, and of the value of five
dollars, with the intention of him, the said to de-
fraud the said ; and the said five dollars was ob-
tained from the said by the said pretending

to be an officer of the United States, as aforesaid, and act-
ing under the authority of the United States, with the in-
tention of him the said , so pretending to be an of-
ficer as aforesaid, to defraud the said of the said

five dollars, and the value thereof; all of which was
against the peace, etc.

712 Federal Criminal Law Procedure.

General Form for Beginning and Ending of Indictment
At a regular term of the United States District Court
for the Northern District of Texas, begun and h olden at
Dallas, Texas, on the second Monday of January, A.
D., 1911, which was the eleventh day of said month, the
grand jurors wherefor, good and lawful men, duly select-
ed, empaneled, sworn, and charged to inquire into and
a true presentment make of all crimes and offenses cog-
nizable under the authority of the laws of the United
States of America, committed within the Northern Dis-
trict of Texas, upon their oaths present into open Court
that heretofore, to wit, etc., all of which was con-
trary to the form of the statute in such case made and
provided, and against the peace and dignity of the United
States of America.

Foreman of the Grand Jury.

District Attorney.

Under Section 37 of the New Code for Conspiracy
Against the United States.

that heretofore, to wit, on the day of

, A. D. 1910, one John Doe and one Richard

Roe, did unlawfully, fraudulently, and feloniously con-
spire together to commit an offense against the United
States of America, to wit, to transport from one State
to another State in the United States, certain obscene,
lewd, and lascivious matter; and he, the said John Doe,
and he, the said Richard Roe, in pursuance to said con-
spiracy, and to effect the object thereof, did, on the

day of , transport, carry, and send

from Dallas, in the State of Texas, to Little Rock, in
the State of Arkansas, certain obscene, lewd, and lascivi-
ous pamphlets which said obscene, lewd, and lascivi-
ous pamphlets were too lewd, obscene, and lascivious to
be here set out and made a part of the records of this
honorable Court, but which said pamphlets began with

the words and ended with the words ;

contrary to the form of, etc.

Form of Indictment 713

Under Section 211 of the New Code, Old Section 3893,
for Mailing Obscene Matter. . .

that heretofore, to wit, on the clay of

, John Doe did unlawfully, knowingly, and

wilfully, deposit and cause to be deposited in the United
States Post-office at Dallas, Texas, for mailing and de-
livery, certain non-mailable matter; that is to say, he,
the said John Doe, on the date aforesaid, and within
the venue aforesaid, did unlawfully, knowingly, and wil-
fully deposit the cause to be deposited, for mailing and
delivery in the post-office of the United States at Dallas,
Texas, a certain envelope, which said envelope was duly
stamped with a two-cent United States postage stamp,
and which said envelope was addressed "Mrs. Richard
Roe, St. Louis, Missouri," and which said envelope, so
stamped and so addressed, and so deposited and caused
to be deposited, then and there contained one sheet of
paper, upon which said sheet of paper there was writing,
but which said writing is too obscene, lewd, and lascivi-
ous to be here set out and made a part of the records of
this honorable Court, but which said writing began

, and ended ; and the said envelope so

deposited and caused to be deposited, and so containing
the said sheet of paper, with the writing thereof afore-
said, was by him, the said John Doe, so deposited and
caused to be deposited, with full knowledge upon his
part of the writing aforesaid upon the said sheet of paper,
and the import thereof; all of which was contrary, etc.

Under Section 192 of the New Code, Old Section 5478,
for Breaking Into and Entering Post-office.

did unlawfully forcibly, and feloniously, break

into and enter a certain building used in part as the Post-
office of the United States at , with the intent to

commit larceny in that part of said building so used as
said United States Post-office at ; contrary, etc.

714 Federal Criminal Law Procedure.

Under Section 215 of the New Code, old Section 5480,
for Use of United States Mails to Promote

Fraud.

did unlawfully, knowingly, and fraudulently de-
vise a scheme and artifice to defraud, which said scheme
and artifice to defraud was to be effected by the use and
misuse of the United States Post-office establishment;
and in furtherance of said scheme, did deposit and cause
to be deposited in the United States mails, for mailing
and delivery, divers letters and packets; which said
scheme and artifice to defraud was, in substance, as fol-
lows, to wit: that the said would pretend to

be engaged in the legitimate business of a wholesale deal-
er in produce, able and willing to pay for consignments
of produce, and being financially responsible, and that he
would make prompt and ready remittance for such con-
signments of produce as were made to him; that such
representations would be made to produce dealers
throughout the United States of America who were
residents of towns other than that in which the said

would purport to carry on the said business;

that when the said produce dealers residing in towns
other than that in which the said would pur-
port to carry on said business, would make consignments

in answer to said letters, of produce, to the said ,

that the said would sell the said produce and

convert the proceeds thereof to his own use and benefit,
and make no remittance for the said produce, or any

part thereof, and that the said did not intend

to make remittance for the said produce, or any part
thereof, or to pay for the same at any time, but, as afore-
said, he would convert the produce and the proceeds to
his own use and benefit; and in pursuance of such scheme
and artifice, and to effect the object thereof, he, the

said , on the day of ,

within the jurisdiction of this Court, to wit, within

, etc., did unlawfully, knowingly, fraudulently,

and feloniously deposit and cause to be deposited, for
mailing and delivery in the United States Post-office at

, a certain envelope, duly stamped with two-

cent United States postage stamps, and addressed to

Form of Indictment 715

, and which said envelope, so deposited, and

so stamped and addressed, contained the following letter,

to wit:

and the grand jurors aforesaid, upon their oaths afore-
said, represent and show to the Court that the said
did not intent to pay the prices for the pro-
duce in said letter set forth and promised; that he was
not financially responsible as represented in said letter;
that he was not a reputable and legitimate produce deal-
er, as represented in said letter, but intended, as afore-
said, to appropriate the proceeds of the produce shipped
to him in response thereto to his own use and benefit,
and to not pay for the same, or any part thereof; con-
trary to the form, etc.

Under Section 206 of the New Code, False Returns to
Increase Compensation of Postmaster.

one John Doe was postmaster of the United

States Post-office at , in said county and dis-
trict, the same being a post-office of the fourth class;

and the said , so being such postmaster, as

aforesaid, on the date aforesaid, and in the county and
district aforesaid, did unlawfully, knowingly, and fraudu-
lently, for the purpose of fraudulently increasing his
compensation as such postmaster, under the act of Con-
gress, make a certain false return to the Auditor of the
Treasury for the Post-office Department of the United
States; that is to say, a certain false return of the amount
of postage stamps, stamped envelopes, postal-cards, and
newspaper and periodical stamps canceled as postages
on matter actually mailed at the said post-office, and of
postage due stamps canceled in payment of under-charges
and unpaid postages upon matter delivered at the said

post-office during the quarter ending the day

of , by which said return the said amount ap-
peared and was alleged to be dollars and

cents, which said return, at the time it was so made,

as aforesaid, was false in this: that the amount of postage
stamps, stamped envelopes, postal cards, and newspaper
and periodical stamps canceled as postage on matter
actually mailed at the said post-office, and of postage due

716 Federal Criminal Law Procedure.

stamps canceled in payment of undercharges and un-
paid postages upon matter delivered at the said post-v

office during the quarter aforesaid, was not

dollars and cents, or any such sum, but was

a different and much smaller sum, to wit,

dollars, as he the said , at the time of making

the said return, as aforesaid, then and there well knew;
all of which was contrary, etc.

Form of Indictment Under Section 125, Old Section

5392, for Perjury.

"The United States of America.

"At a District Court of the United States of America, for the Dis-
trict of Massachusetts, begun and • holden at Boston, within and for
said district, on the first Tuesday of December in the year of our
Lord one thousand nine hundred and nine.

"First Count. The jurors for the United States of America, within
and for the District of Massachusetts, upon their oath, present that
Frank H. Mason, of Boston, in said district, at the several times of
the committing of the several offenses in this indictment hereafter
charged, was clerk of the District Court of the United States for the
District of Massachusetts, and as such clerk was by law required to
make to the Attorney General of the United States, on the first days
of January and July, in each year, and in the form prescribed by
said Attorney General, a written return for the half year ending on
said days respectively, showing, among other things, all the fees
and emoluments of his office, of fevery name and character, and all
the necessary expense of his office, and to verify such return by his
oath; that said Frank H. Mason, on the twenty-fourth day of Septem-
ber, in the year nineteen hundred and eight, at Boston aforesaid, then
so being such clerk, came in person before the Honorable Frederic
Dodge, then and before that time judge of the District Court of the
United States for the District of Massachusetts, and then and there
made and described a certain declaration and certificate in writing
before said judge, on the occasion of his making his return as afore-
said as such clerk for the half year ending on the thirtieth day of
June, in the year 1908, and was, on the day first aforesaid, there in
due manner sworn by said judge touching the truth of the matters
contained in said return, and took his corporal oath, before said judge,
that said written declaration and certificate by him the said Frank
H. Mason subscribed was then just and true he the said Frederic
Dodge as such judge then and there having competent authority, and
being a tribunal and officer having authority, to administer said oath
and take said written declaration and certificate; and that said
Frank H. Mason then and there falsely, corruptly, and wilfully, and
contrary to his said oath, did in and by his said written declaration

Form of Indictment 717

and certificate declare and certify certain material matters, among
other things, in substance and to the effect that said return was in all
respects just and true, according to his best knowledge and belief,
and that he had neither received, directly or indirectly, any other
money or consideration than therein stated, that the total amount
of fees and emoluments received in bankruptcy proceedings was six
thousand five hundred and fifteen dollars and eighty-five cents; that
the total amount of fees and emoluments, not in bankruptcy proceed-
ings, earned from parties other than the United States, was six hundred
and thirty-four dollars and eighty-three cents; and that the balance
then due to the United States from him as such clerk was four thou-
sand and nineteen dollars and forty-six cents; whereas in truth and in
fact said Prank H. Mason, at the time he took said oath and made
and subscribed said written declaration and certificate, had, as he
then well knew, received as such clerk, during said half year, fees
and emoluments in bankruptcy proceedings a much greater total
sum, to wit, the sum of six thousand six hundred and seventy-four
dollars and eighty-five cents, and had earned fees and emoluments,
not in bankruptcy proceedings, from parties other than the United
States, a much greater total sum, to wit, the sum of six hundred and
eighty-one dollars and eighty-three cents, and the balance then due
to the United States from him as such clerk was a much greater
sum, to wit, four thousand two hundred and twenty-five dollars and
forty-six cents; and whereas in truth and fact said Frank H. Mason
did not then believe it to be true that the total amount of such fees
and emoluments so received by him in bankruptcy proceedings was
six thousand five hundred and fifteen dollars and eighcy-five cents,
or that the total amount of fees and emoluments so earned by him,
not in bankruptcy proceedings and from parties other than the
United States, was six hundred and thirty-four dollars and eighty-
three cents, or that such balance then due to the United States was
four thousand and nineteen dollars and forty-six cents; and so said
Frank H. Mason, at the time and place, and in the manner and form
aforesaid, unlawfully did commit wilful and corrupt perjury."

Under Section 125 of the New Code, Old Section 5392,

for Perjury.

that heretofore, to wit, on the day of

, in the year , there came on to be

tried, in the District aforesaid, and in the United States

District Court, before the Honorable , judge

thereof, and a jury duly empaneled and sworn for that
purpose, a certain issue duly joined between the said

United States of America and one , upon a

criminal indictment duly returned and then pending in
said Court against the said for having unlaw-

718 Federal Criminal Law Procedure.

fully engaged in the business of a retail liquor dealer
without first having paid the special tax thereof, as re-
quired by the United States statutes; and at and upon
a trial of the said issue in the said Court, before the said

judge and jury, to wit, on the day of

in the same said year of , and within the city and

district aforesaid, and State aforesaid, one John Jones
appeared and was produced as a witness for and on be-
half of the said defendant, the said , in the said

indictment, and was then and there duly sworn, and took
his oath as such witness before the said Court, that the
evidence which he, the said John Jones, should give on
the said trial should be the truth, the whole truth, and
nothing but the truth, the said Court then and there
having had competent authority to administer the said
oath to the said John Jones on that behalf; and the said
John Jones, so being sworn, as aforesaid, in the cause
aforesaid, in and by the Court aforesaid, it then and
there, upon the said trial of the said issue, became and

was a material inquiry whether and whether

; and the grand jurors upon their oaths afore-
said, that the said John Jones, so being sworn and so

having taken his oath as aforesaid, on the said

day of , in the said year of , and

within the said county, division, district, and state afore-
said, upon the said trial of the said issue, as aforesaid
wilfully and corruptly, and contrary to his said oath
did swear and depose before the said Court and jury
amongst other things, in substance and to the effect fol

lowing; that is to say, that and that

whereas, in fact it was not, and is not, true, that

and that ; and at the time of so swearing and

deposing, the said John Jones did not believe it to be

true that and that ; and the grand

jurors aforesaid, upon their oaths aforesaid, do say
that the said John Jones, in the manner and form afore-
said, having taken an oath before a competent tribunal
aforesaid, in a case wherein a law of the said United
States authorized an oath to be administered that he
would truly depose and testify, wilfully, and contrary to
bis said oath, did depose and state material matters

Form of Indictment 719

which he did not then believe to be true, and thereby did
commit wilful and corrupt perjury; contrary, etc.

For Making and Forging and Counterfeiting National
Bank Notes, New Section 149, Old Section 5414.

one with intent to defraud certain

persons to the grand jurors unknown, did unlawfully,
feloniously, and fraudulently falsely make, forge, and
counterfeit ten notes, in imitation of, and purporting to
be, circulating notes of the national bank currency of
the United States, to wit, the circulating notes of the
banking association, each of which said false-
ly made, forged, and counterfeited notes was in this ten-
or, as follows, to wit: (Here set out fully, or as nearly
completely as possible) ; and the said counterfeited,
falsely made, and forged circulating notes, as aforesaid,
were so falsely made, forged and counterfeited for the
purpose of defrauding certain persons, to the grand
jurors unknown; contrary, etc.

For Passing or Attempting to Pass Counterfeit Notes of
National Banking Associations.

did unlawfully, knowingly, fraudulently,

and feloniously pass, utter, and publish, and attempt to
pass, utter, and publish as true and genuine, a certain
falsely made, forged, and counterfeited note, purporting

to be issued by the bank of a

banking association which had theretofore been author-
ized, and was acting under the laws of the United States
of America, upon and to John Jones, with the intent and

purpose of him, the said of defrauding1 the

said John Jones, the tenor of which said false, forged,
and counterfeit note is as follows, to- wit; that is to say,

(here set out the note) he, the said , at the

time of so passing, uttering, and publishing, and at-
tempting to pass, utter, and publish the aforementioned
falsely made, forged, and counterfeited note, upon and
to the said John Jones, then and there well knew that
the same said falsely made, forged, and counterfeited
note was falsely made, forged, and counterfeited, and

720 Federal Criminal Law Procedure.

then and thereby intended to defraud the said John
Jones; contrary, etc.

Under Section 163 of the New Code, Old Section 5457,
for Counterfeiting Coins.

did then and there knowingly, wrongfully, un-
lawfully, fraudulently, and feloniously falsely make,
forge, and counterfeit, and cause and procure to be falsely
made, forged, and counterfeited, and willingly aided and
assisted in falsely making, forging and counterfeiting,
five hundred certain false, forged, and counterfeit coins,
each of which said false, forged, and counterfeit coins
was then and there in the resemblance and similitude of
the silver coins which had theretofore been coined at
the mints of the United States, and called silver dollars,
and he, the said John Doe, then and here knowing the
said false, forged, and counterfeit coins to be then and
there false, forged, and counterfeited, with the intent of
him, the said John Doe, then and there to defraud cer-
tain persons to the grand jurors unknown; contrary, etc.

For Passing, Etc., Counterfeit Coins, Section 163 of the
New Code, Old Section 5457.

And the grand jurors aforesaid, upon their

oaths aforesaid, do further present into open Court, that

heretofore, to wit, on the day of ,

A. D , one John Doe, within the

Division of the District of , did

then .and there knowingly, wrongfully, feloniously, and
fraudulently, have in his possession five hundred
certain false, forged, and counterfeited coins, each
of which said, false, forged, and counterfeited coins
was then and there in the resemblance and sim-
ilitude of the silver coins which had theretofore
been coined at the mints of the United States and called
silver dollars, he, the said John Doe, then and there
knowing the said false, forged, and counterfeited coins
to be then and there false, forged, and counterfeited, did
then and there knowingly, wrongfully, unlawfully, and
fraudulently pass, utter, and publish one of the said

Form of Indictment 721

false, forged, and counterfeited coins upon and to one
John Jones, with the intent of him, the said John Doe,
to defraud the said John Jones, he, the said .John Doe,
then and there knowing the said coin so passed upon
the said John Jones to be false, forged, and counterfeited,
as aforesaid; contrary, etc.

For Receipting for Larger Sums Than Are Paid, New
Section 86, Old Section 5483.

(Approved in U. S. vs. Mayers, 81 Federal, 159.)

"The jurors of the United States of America within and for the
district and circuit aforesaid, on their oaths present that G. F. Mayers,
late or Frederick County, in the district aforesaid, at said county,

heretofore, to wit, on the day of , in the year of our Lord

one thousand eight hundred and ninety-two, at the said Western Dis-
trict of Virginia, and within the jurisdiction of this court, the said
G. F. Myers being then and there an officer of the United States, to
wit, postmaster at Stevens City, Virginia, charged with the payment
of an appropriation made by an Act of Congress, to wit, an appropria-
tion for the payment of letter carriers at experimental free delivery
offices, did unlawfully pay to an employee of the United States, to
wit, one Douglas K. Drake, and, to wit, one Edgar C. Cadwallader,
who were then and there employees of the United States, to wit,
letter carriers, a sum less than that provided by law, to wit, the sum
of $122.92, and required said employees to give vouchers for an amount
greater than that actually paid to and received by them, to wit. the
sum of $306.17, against the peace of the said United States and their
dignity, and against the form of the statute of the said United States
in such case made and provided."

Form Approved in U. S. vs. Reynolds et al., 235 U. S.,

133, for Violation Peonage Act, Sections U.

R. S., 1990-5526, and 269 Criminal

Code.

United States of America:

District Court of the United States for the Southern
Division of the Southern District of Alabama, of the

May Term, 1911.
Southern District of Alabama, Southern Division.

The grand jurors of the United States, chosen, select-
ed, and sworn in and for the Southern Division of the
Southern District of Alabama, upon their oath do find

722 Federal Criminal Law Procedure.

and present that on, to wit, the eighth day of May, in
the year of our Lord one thousand nine hundred and
eleven, within the Southern Division of the Southern Dis-
trict of Alabama, and within the jurisdiction of this
Court, and before the finding of this indictment, J. A.
Eeynolds, whose name, other than as herein stated, is
unknown to this grand jury, late of the division and dis-
trict aforesaid, did then and there hold Ed. Rivers in
a condition of peonage; that is to say, did hold the said
Ed. Rivers in involuntary servitude, to work out a debt
which the said J. A. Reynolds then and there claimed
that the said Ed. Rivers then and there owed the said
J. A. Reynolds, contrary to the form of the statute in
such case made and provided and against the peace and
dignity of the United States of America.

Second Count.

And the grand jurors aforesaid, upon their oath afore-
said, do further find and present that on, to wit, the
eighth day of May, in the year of our Lord one thousand
nine hundred and eleven, within the Southern Division
of the Southern District of Alabama, and within the
jurisdiction of this Court, and before the finding of this
indictment, J. A. Reynolds, whose name, other than as
herein stated, is unknown to the grand jury, late of the
division and district aforesaid, did then and there hold
Ed. Rivers in a condition of peonage; that is to say, did
hold the said Ed. Rivers in involuntary servitude, to work
out a debt which the said J. A. Reynolds then and there
claimed that the said Ed. Rivers then and there owed
the said J. A. Reynolds; that is to say, that the said Ed.
Rivers was, to wit, during the May Term, 1910, of the
county Court of Monroe County, in the State of Alabama,
convicted in said Court of the offense of petit larceny
and was fined the sum of, to wit, fifteen dollars, and
judgment was rendered against him by said Court for
the amount of said fine and also for the further and ad-
ditional sum of forty-three dollars and seventy-five cents
cost; and thereupon the said J. A. Reynolds confessed
judgment with the said Ed. Rivers in said Court for said
fine and cost, and the said J. A. Reynolds did, after the

Form of Indictment 723

conviction of the said Ed. Rivers as aforesaid, and be-
fore the finding of this indictment, at the request of the
said Ed. Rivers, pay the said sum of to wit, fifty-eight dol-
lars and seventy-five cents in settlement of said fine and
cost, and by reason of said payment the said Ed. Rivers
became and was indebted to the said J. A. Reynolds in
said sum of fifty-eight dollars and seventy-five cents; and
thereupon the said Ed. Rivers did enter into a contract
in writing with the said J. A. Reynolds whereby the said
Ed. Rivers agreed to work and labor for him the said
J. A. Reynolds, on the plantation of the said J. A. Rey-
nolds, in Monroe County, and under his direction as a
farm hand, to pay said sum of fifty-eight dollars and
seventy-five cents, for the term of nine months and twen-
ty-four days, at the rate of six dollars per month, to-
gether with board, lodging, and clothing during the said
term of hire, said term of hire commencing on the fourth
day of May, in the year of our Lord nineteen hundred
and ten, and ending on the twenty-eighth day of Febru-
ary, in the year of our Lord nineteen hundred and eleven;
which said contract was substantiallv in words and fig-
ures as follows:

"Labor Contract.
"The State of Alabama, Monroe Countys

"Whereas, at the May Term, 1910, of the county Court,
held in and for said county, I, Ed. Rivers was convicted
in said Court of the offense of petit larceny and fined
the sum of fifteen dollars, and judgment has been ren-
dered against me for the amount of said fine, and also
in the further and additional sum of forty three & 75-100
dollars, cost in said case, and whereas J. A. Reynolds,
together with A. C. Hixon, have confessed judgment
with me in said Court for said fine and cost. Now, in
consideration of the premises, I, the said Ed. Rivers,
agree to work and labor for him, the said J. A. Rey-
nolds, on his plantation in Monroe County, Alabama,
and under his direction as a farm hand to pay fine and
cost for the term 9 months and 24 days, at the rate of
$6.00 dollars per month, together with my board, lodg-

724 Federal Criminal Law Procedure.

ing, and clothing during the said time of hire, said time
of hire commencing on the 4 day of May, 1910, and end-
ing on the 28 day of February, 1911, provided said work
is not dangerous in its character.

"Witness our hands this 4 day of May, 1910.

"Ed. (his x mark) Rivers.

"J. A. Reynolds.
"Witness:

"John M. Coxwell."

That said contract was signed in open Court and was
approved by I. B. Slaughter, as judge of said county
court of Monroe County on the fourth day of May, 1910;
that after the said contract was signed by said Ed.
Rivers the said Ed. Rivers did work and labor for him,
the said J. A. Reynolds, and during the time the said
Ed. Rivers was so working for said J. A. Reynolds as
aforesaid, the said J. A. Reynolds did threaten the said
Ed. Rivers that of he, the said Ed. Rivers, refused to per-
form work and labor for said J. A. Reynolds and to work
out the said debt, he, the said J. A. Reynolds, would have
the said Ed. Rivers arrested and put in jail; and that the
said Ed. Rivers did not, after said threats were so made,
voluntarily perform work and labor for said J. A. Rey-
nolds, but, coerced and intimidated by the said threats
of the said J. A. Reynolds, as aforesaid, said Ed. Rivers
did against his free will continue to perform work and
labor for said J. A. Reynolds under the said contract
until a later date, to wit, on or about the sixth day of
June, in the year of our Lord nineteen hundred and ten;
and the grand jurors aforesaid do charge and present
that the said J. A. Reynolds did, in the manner afore-
said, hold the said Ed. Rivers in a condition of peonage,
contrary to the form of the statute in such case made
and provided and against the peace and dignity of the
United States of America.

Third Count.

And the grand jurors aforesaid, upon their oath afore-
said, do further find and present that on, to wit, ^he

Foem of Indictment 725

eighth day of May, in the year of our Lord one thousand
nine hundred and eleven, within the Southern Division
of the Southern District of Alabama, and within the
jurisdiction of this Court, and before the rinding of this
indictment, J. A. Reynolds, whose name other than as
herein stated is unknown to this grand jury, did then
and there arrest and cause to be arrested one Ed. Rivers,
whose name other than as herein stated is unknown to
this grand jury, for the purpose of compelling the said
Ed Rivers, to, by involuntary servitude, pay a debt which
the said J. A. Reynolds claimed that the said Ed Rivers
owed him, the said J. A. Reynolds; that is to say, the
said J. A. Reynolds did, after the happening of the mat-
ters and things set forth in the second count of this in-
dictment, which is here referred to, appear before one
I. B. Slaughter, who was then and there the judge of the
county Court of Monroe County, within said division
and district, on, to wit, the sixth day of June, nineteen
hundred and ten, and did make and swear to an affidavit
substantially in words and figures as follows, to-wit:

"Affidavit and Complaint. — Violating Criminal Con-
tract.

"The State of Alabama, Monroe County, County Court:

"Before me, I. B. Slaughter, judge of the county Court
of said county, personally appeared J. A. Reynolds who,
being duly sworn, says that he has probable cause for
believing and does believe that Ed Rivers on whom a
fine of fifteen dollars was imposed in the county Court
of Monroe County, Alabama, at the May Term, 1910, of
said Court, for the offense of petit larceny, who in open
Court signed a written contract approved by the judge
of said Court, whereby in consideration of J. A. Rey-
nolds and A. C. Hixon becoming his sureties on a con-
fession of judgment for the fine and cost, agreed to per-
form farm labor for the said J. A. Reynolds at the rate
of six dollars per month for 9 months and 24 days, and
who after being released on such confession of judgment,
failed or refused, without a good and sufficient excuse,
to perform said labor for said J. A. Reynolds, which in

726 Federal Criminal Law Procedure.

said contract he promised and agreed to perform in said
county within the past twelve said months, against the
peace and dignity of the State of Alabama.

"J. A. Reynolds.

" Sworn to before me 6 dav of Jnne, 1910.

"LB. Slaughter,
'Judge of the County Court."

< i

And thereupon a warrant was issued by the said I.
B. Slaughter, judge as aforesaid, for the arrest of the
said Ed. Rivers, which warrant was duly executed; and
thereupon at the June nineteen hundred and ten term
of said county Court the said Ed Rivers was convicted
of the offense of violating a criminal contract and was
by the said Court fined the sum of 1 cent and judgment
was by the said Court rendered against him, the said
Ed Rivers, for the amount of said fine and also for the
further and additional sum of eighty-seven dollars and
5 cents cost, and thereupon one G. W. Broughton, alias
Gideon W. Broughton, whose name other than as herein
stated is unknown to the grand jury, confessed judg-
ment with the said Ed Rivers for the amount of said
judgment; and thereupon the said G. W. Broughton, at
the request of the said Ed Rivers, paid the amount of
said judgment, out of which amount so paid by the said
G. W. Broughton, alias Gideon W. Broughton, the said
J. A. Reynolds was paid the amount which he claimed
the said Ed Rivers then owed him; and the said Ed
Rivers did then and there agree to work and labor for
said G. W. Broughton, alias Gideon W. Broughton, on
his plantation in Monroe County and under his direction
as a farm hand, to pay said sum, for the term of fourteen
months and fifteen days at the rate of six dollars per
month, together with board, lodging, and clothing dur-
ing the time of said hire, said time of hire commencing
on the seventh day of June, nineteen hundred and ten,
and ending on the twenty-second day of August, nineteen
hundred and eleven; and the grand jurors aforesaid, up-
on their oath aforesaid, do further charge and present
that the object and purpose of the said J. A. Reynolds

Form of Indictment 727

in making said affidavit and causing the arrest of the
said Ed Rivers was, by means of said proceedings, to
cause and compel the said Ed Rivers to, by involuntary
servitude, work out the debt which the said J. A. Rey-
nolds then and there claimed that the said Ed Rivers
owed him, the said J. A. Reynolds; and that the said
agreement, entered into by the said Ed. Rivers to work
for said G. W. Broughton, alias Gideon W. Broughton,
was not a voluntary agreement, but that the said Ed
Rivers made said agreement under the constraint of the
said proceedings in the said county Court; wherefore the
grand jurors aforesaid, upon their oath aforesaid, do find
and present that the said J. A. Reynolds did, in the man-
ner aforesaid, arrest the said Ed. Rivers and did cause
the said Ed Rivers to be arrested, and did aid in the
arrest of the said Ed Rivers, to be held in a condition of
involuntary servitude, to work out a debt which the said
J. A. Reynolds then and there claimed that the said Ed
Rivers owed him, the said J. A. Reynolds, contrary to
the form of the statute in such case made and provided,
and against the peace and dignity of the United States
of America.

Form of Indictment Approved in U. S. vs. Lewis, 235,
U. S., page 282, Under Meat Inspection Law
of 1906, Against Alteration or Destruc-
tion of Tags and Labels, Etc.

United States of America,

District of Kansas, First Division, ss:

In the District Court of the United States in and for
the district aforesaid, at the October Term thereof, A.
D. 1913.

The grand jurors of the United States, impaneled,
sworn, and charged at the term aforesaid, of the Court
aforesaid, on their oath present that Charles Lewis,
Lewis Howard, Fred Withers, and James McBee on or
about the 23rd day of January, in the year 1913 in the
said division of said district, and within the jurisdiction
of said Court, in the county of Wyandotte and State of

728 Federal Criminal Law Procedure.

Kansas, did then and there, without lawful authority,
knowingly, wrongfully, unlawfully, wilfully, and felon-
iously alter, deface, break, and destroy a certain mark,
tag, or label, in words and figures follows, to-wit : ' ' Gov-
ernment Seal No. 4451074," then and there being upon
a certain railroad freight car designated as Car S. R. L.
No. 4422, containing meat and meat products then and
there under Government supervision for inspection and
offered for transportation from the State of Kansas to
the State of New Jersey; said mark, tag, or label having
theretofore been affixed to and upon said car containing
said meat and meat products in accordance with the
rules and regulations issued by the Secretary of Agri-
culture under authority of the act of Congress approved
June 30, 1906, entitled: "An act making appropriations
for the Department of Agriculture for the fiscal year
ending June 30, 1907," which said rules and regulations
were then and there in full force and effect.

And the grand jurors aforesaid, on their oath afore-
said, do further present that the said Charles Lewis,
Lewis Howard, Fred Withers, and James McBee on or
about the 23rd day of January, in the year 1913, in the
said division of said district, and within the jurisdiction
of said Court, in the county of Wyandotte and State of
Kansas, did then and there, without lawful authority,
knowingly, wrongfully, unlawfully, wilfully, and feloni-
ously alter, deface, break, and destroy a certain seal,
label or identification device in words and figures as fol-
lows to wit:

I. D. Form 109 E.

U. S. Department of Agriculture,

Bureau of Animal Industry.

WARNING.

Meat product — Do not break this seal
under penalty of the law.

Form of Indictment 729

PENALTY.

Fine not exceeding $10,000 or imprison-
ment for a period of not more than two
years, or both.

James Wilson,

Secretary.

then and there affixed to and being upon a certain freight
car designated as Car S. E. L. No. 4422, containing meat
and meat products then and there under Government
supervision for inspection and offered for transportation
from the State of Kansas to the State of New Jersey; said
seal, label, or identification device having theretofore
been affixed to and upon said car containing said meat
and meat products in accordance with the rules and reg-
ulations issued by the Secretary of Agriculture under
authority of the act of Congress approved June 30, 1906,
entitled "an act making appropriations for the Depart-
ment of Agriculture for the fiscal year ending June 30,
1907," which said rules and regulations were then and
there in full force and effect, contrary to the form of
the statute in such case made and provided, and against
the peace and dignity of the United States.

Form of Indictment for Harboring Prostitutes, Ap-
proved in U. S. vs. Portale et al, 235 U. S., page
27, Under White Slave Act of June 25,
1910; Not Confined to Those
Who Were Concerned in
Bringing into this
Country.

The grand jurors of the United States of America,
within and for the district of Colorado, good and lawful
men, duly selected, empaneled, sworn, and charged, on
their oaths present :

That one Louise Richar, alias Louise Alexander, an
alien woman, did, on, to wit, the first day of January,
nineteen hundred and thirteen, enter the United States
from Great Britain, Great Britain being then and there
and at all times mentioned in this indictment a party to

730 Federal Criminal Law Procedure.

an agreement and arrangement for the suppression of
the white slave traffic, adopted July twenty-fifth, nine-
teen hundred and two, as shown by the proclamation of
the President of the United States, dated June fifteenth,
nineteen hundred and eight; and that one Elie Portale
and one Juliette Portale, alias Juliette Puppet, alias
Madame Juliette, did knowingly, within three years
after the entry of said alien woman into the United
States, keep, maintain, control, and harbor her, said
alien woman, at a certain house and place, to wit, at the
premises known as nineteen thirty-five Larimer Street,
in the city and county of Denver, State of Colorado, for
the purpose of prostitution, for the period, to wit, from
the twenty-eight day of July, nineteen hundred and thir-
teen, to the eighth day of September, nineteen hundred
and thirteen.

That said Elie Portale and Juliette Portale, alias as
aforesaid, and each of them, so knowingly keeping, main-
taining, controlling, and harboring said Louise Richar,
as aforesaid, at said city and county of Denver, State
and district of Colorado, and within the jurisdiction of
this Court, at said house and place, for the purpose of
prostitution, as aforesaid, did willfully, unlawfully, and
feloniously fail to file, within thirty days after said
twenty-eight day of July, nineteen hundred and thir-
teen, the date of the commencement of said keeping,
maintaining, controlling, and harboring of said alien
woman, as aforesaid, with the Commissioner General of
Immigration of the United States, as required by law so
to do, a statement in writing, setting forth the name of
said alien woman, the place at which she was then and
there kept, and the facts as to the date of her entry into
the United States, the port through which she entered,
her age, nationality, and parentage, and concerning her
procuration to come to this country within the knowl-
edge of said Elie Portale and said Juliette Portale, alias
as aforesaid; contrary to the form of the statute in such
case made and provided, and against the peace and dig-
nity of the United States of America.

Form of Indictment 731

Form of indictment for Violation of Quarantine Act of

March 3, 1905, 33 Stat. 1264, as Amended March

4, 1913, Applying to Receivers Etc.,

as Approved in U. S. vs. Nixon

et al., 235 U. S.

231.

The grand jurors of the United States of America,
duly and legally chosen, selected, summoned and drawn
from the body of the Western Division of the Western
District of Missouri, and duly and legally examined, em-
paneled, sworn and charged to inquire of and concern-
ing crimes and offenses against the United States in the
Western Division of the Western District of Missouri,
on their oaths present and charge that on or about the
16th day of August, A. D. 1913, and at all times herein-
after mentioned, one William C. Nixon and one William
B. Biddle, and one Thomas H. West, were the duly ap-
pointed, qualified and acting receivers of the St. Louis
and San Francisco Railroad Company, a corporation
duly organized and incorporated according to law, and
that as such receivers the said William C. Nixon and
the said William B. Biddle and the said Thomas H. West
on the 16th day of August, A. D. 1913, had charge of and
were managing, conducting, and operating the property
and business of said corporation as a common carrier
of freight, live stock, cattle, and other animals for hire
in interstate commerce from Hugo, Choctaw County in
the State of Oklahoma, to Kansas City, Jackson County,
in the State of Missouri; that on or about the 16th day
of August, 1913, at Hugo, Choctaw County, Oklahoma,
a certain shipment of thirty-eight head of cattle, con-
signed by H. L. Sanguin to the Clay-Robinson Live Stock
Commission Company, Kansas City, Missouri, was de-
livered to the St. Louis and San Francisco Railroad
Company, and said receivers for transportation from
Hugo, Choctaw County, Oklahoma, to Kansas City, Jack-
son County, Missouri, and which said shipment was by
said Railroad Company and said receivers transported
in M. K. & T. car number 40669, in interstate commerce
from Hugo, Choctaw County, Oklahoma, to Kansas City,

732 Federal Criminal Law Procedure.

Jackson County, Missouri, and delivered to the Clay-
Eobinson Live Stock Commission Company as aforesaid.
And the grand jurors aforesaid, on their oaths afore-
said, do further present and charge that the Secretary
of Agriculture of the United States, pursuant to and by
virtue of the power and authority in him vested by the
act of Congress, of the United States approved March 3,
1905, did on or about the 7th day of February, 1913,
determine the fact to be that within certain portions of
the State of Oklahoma, and more particularly within and
including the county of Choctaw, in the State of Okla-
homa, there existed among the cattle a contagious and
infectious disease known as splenetic, southern, or Texas
fever, and did on or about the 7th day of February, 1913,
in accordance with the law in such cases made and pro-
vided, make, issue, and promulgate an order quarantin-
ing certain portions of the State of Oklahoma, and more
particularly and including the county of Choctaw, in the
State of Oklahoma, and did forbid the removal or trans-
portation of cattle from said county of Choctaw, in the
State of Oklahoma, into any other State or Territory in
the United States not within the quarantined district so
established by the said Secretary of Agriculture of the
United States, except in accordance with the rules and
regulations made and promulgated by the Secretary of
Agriculture of the United States and then in full
force and effect; that the said order and regu-
lation of said Secretary of Agriculture was duly
published, in accordance with law, in The Daily
Oklahoma, a newspaper duly and regularly pub-
lished in Oklahoma City, Oklahoma, in its issue of
February 25, 1913; that notice of said order made, is-
sued, and promulgated by the Secretary of Agriculture
as aforesaid was duly and legally served upon said de-
fendant, St. Louis and San Francisco Railroad Com-
pany, by service upon F. C. Reilly, assistant freight traf-
fic manager of said railroad company, at St. Louis, Mis-
souri, a duly and legally qualified agent of said railroad
company, and service thereof was duly acknowledged on
March 10, 1913.

Form of Indictment 733

That the Secretary of Agriculture of the United States,
pursuant to and by virtue of the power and authority
in him vested by the act of Congress of the United States
approved March 3, 1905, did on or about the 17th day of
March, 1909, make, issue, and promulgate the following-
rule and regulation governing the transportation of cat-
tle and other live stock from the territory quarantined
under the law hereinbefore referred to, and made, issued,
and promulgated by the said Secretary of Agriculture
of the United States as aforesaid, as follows:

"The proper officers of the transportation companies
shall securely affix to both sides of all cars carryng in-
terstate shipments of cattle from the quarantined area
(except those accompanied by certificates of inspection
issued by inspectors of the Bureau of Animal Industry,
covering shipments of cattle dipped as provided in Reg-
ulation 17 hereof, and shipments of cattle from certain
areas described in the 'Rule to prevent the spread of
splenetic fever in cattle,' which rule should be construed
in connection with these regulations) durable placards
not less than 5 1-2 by 8 inches in size, on which shall be
printed with permanent black ink and in boldface letters
not less than 1 1-2 inches in height the words 'Southern
Cattle.' These placards shall also show the name of the
place from which the shipment was made, the date of the
shipment (which must correspond with the date of the
waybills and other papers), the name of the transpor-
tation company, and the name of the place of destina-
tion. Each of the waybills, conductors' manifests, mem-
oranda, and bills of lading pertaining to such shipments
by cars or boats shall have the words 'Southern Cattle'
plainly written or stamped upon its face. Whenever
such shipments are transferred to another transporta-
tion company or into other cars or boats, or are rebilled
or reconsigned from any point not in the quarantined
area to a point other than the original destination, the
cars into which said cattle are transferred and the new
waybills, conductors' manifests, memoranda, and bills
of lading covering said shipments by cars or boats shall
be marked as herein specified for cars carrying said

73-4 Federal Criminal Law Procedure.

cattle from the quarantined area, and for the billing,
etc., covering the same. If for any reason the placards
required by this regulation are removed from the cars
or are destroyed or rendered illegible, they shall be im-
mediately replaced by the transportation company or its
agents, the intention being that legible placards desig-
nating the shipment as 'Southern Cattle' shall be main-
tained on the car from the time such shipments leave the
quarantined area until they are unloaded at final des-
tination and the cars are treated as hereinafter speci-
fied."

That notice of said order and regulation of said Secre-
tary of Agriculture was published in accordance with
law in The Daily Oklahoman, a newspaper duly and reg-
ularly published in Oklahoma City, Oklahoma, in its is-
sue of March 24, 1909, and that notice of said order,
made, issued and promulgated by the Secretary of Ag-
riculture as aforesaid, was served upon the defendant
by service upon E. K. Voorhees, general freight agent,
of said railroad company at St. Louis, Missouri, and a
duly authorized agent of said Company, and ' service
thereof duly acknowledged on March 30, 1909; that said
Hugo, Choctaw County, Oklahoma, is within the quar-
antined district, and within the territory established and
declared by the said order regulation of the Secretary of
Agriculture of the United States as territory within
which there existed among the cattle a contagious and
infectious disease known as splenetic, southern, or Texas
fever.

And the grand jurors aforesaid, on their oaths afore-
said, do further present and charge that on or about
the 16th day of August, A. D. 1913, the said St. Louis
and San Francisco Railroad Company, common carrier
as aforesaid, and William C. Nixon and William B. Bid-
die and Thomas H. West, receivers as aforesaid, did un-
lawfully, wilfully, and feloniously receive for transpor-
tation the said thirty-eight head of cattle consigned by
H. L. Sanguin to the Clay -Robinson Live Stock Com-
mission Company, and did then and there unlawfully,
wilfully, and feloniously transport said shipment of cat-
tle as aforesaid from Hugo, Choctaw County, Oklahoma,

Form of Indictment 735

a point within that portion of the State of Oklahoma
quarantined by order of the Secretary of Agriculture of
the United States as aforesaid into Kansas Citv, Jackson
County, Missouri, in the division and district aforesaid,
the same being a point in an area and portion of the of
the United States beyond and without the quarantined
district theretofore established by the said Secretary of
Agriculture as aforesaid beyond and outside of Choc-
taw County, Oklahoma; that the said defendants, the
said St. Louis and San Francisco Railroad Company and
said receivers as aforesaid received said cattle for trans-
portation as aforesaid, and transported and delivered the
same to the consignee at Kansas City, Missouri, as afore-
said, when the cars in which said cattle were transported
by said defendants as aforesaid did not have securely
affixed to both sides thereof durable placards of not less
than five and one-half inches by eight inches in size, on
which was printed with permanent black ink, in bold-
face letters of not less than one and one-half inches in
height, the words, "Southern Cattle," or any other in-
formation concerning or pertaining to said shipment, as
required by the statutes and regulations of the said Sec-
retary of Agriculture, as hereinbefore set forth, and
when the waybills, conductors' manifests and memo-
randa, and bills of lading pertaining to said shipment
did not have the words, "Southern Cattle" plainly writ-
ten or stamped upon their face, as required by the stat-
utes, rules, and regulations made and promulgated by
the Secretary of Agriculture as aforesaid, contrary to
the form of the statute in such cases made and provided
and against the peace and dignity of the United States.

Form of Indictment for Fraudulent Use of the Mail,

Section 215, Approved in Belden vs.

United States, Fed. 223, 726.

The indictment charges Russell G. Belden and A. Eu-
gene Wayland with having, prior to January 18, 1911,
devised, and intended to devise, a scheme and artifice to
defraud one John Neiderer, and divers other persons to
the grand jury unknown, which said scheme and artifice
to defraud was to be effected by the use and misuse of

736 Federal Criminal Law Procedure.

the United States postoffice establishment, with intent
to incite and induce such persons so intended to be de-
frauded to open correspondence with them, by means of
printed circulars, letters, and reports distributed through
the mail, deposited and caused to be deposited in said
United States mail for mailing and delivery to such di-
vers persons intended to be defrauded, which said scheme
and artifice to defraud so devised and intended to be
devised by said defendants, and each of them, was sub-
stantially as follows:

That defendants would cause to be organized a cor-
poration to be styled the International Development Com-
pany, to be controlled and managed by defendants, and
each of them, the purpose of the corporation being to
act as the fiscal agent for certain other corporations and
firms thereafter to be incorporated and organized by
said defendants as a part of their scheme to defraud;
that defendants would, by themselves and through the
Development Company, cause to be procured and ob-
tained certain coal claims, having little or no value, situ-
ated in British Columbia, Dominion of Canada, and
would cause to be organized a corporation to be styled
the Michel Coal Mines, Limited, with a capital stock of
1,500,000 shares, of the par value of $1 each, said claims
to be transferred to said Michel Coal Mines, Limited, in
consideration that the said Michel Company would issue
to defendants and the Development Company a large

majority of its capital stock, fully paid up; that defend-
ants would thereafter procure and cause to be procured
other claims adjoining the aforesaid claims, and would
thereafter cause to be organized another corporation to
be styled the Crown Coal & Coke Company, with a cap-
ital stock of 2,000,000 shares, of the par value of $1 each,
for the purpose of taking over said coal claims, and that
in consideration therefor the Crown Coal & Coke Com-
pany would issue to defendants and the Development
( ornpany a large amount of the capital stock of said
Crown Company, fully paid up; that defendants would
cause to be procured other claims, and cause to be organ-
ized another corporation, to be styled the Empire Coal
& Coke Company, with a capital stock of 1,500,000 shares

Foem of Indictment 737

of the par value of $1 each, for the purpose of taking
over said claims, in consideration that said Empire Com-
pany would transfer to defendants and the Development
Company a large majority of the stock of said corpora-
tion, fully paid up; that defendants would cause to be
procured a charter for the construction and operation
of a railroad, ostensibly to furnish transportation facili-
ties for the product of the alleged coal mines, and to be
operated in connection therewith, and would cause to
be organized a corporation to be styled the Crows' Nest
& Northern Railway Company, with a capital stock of
20,000 shares, of the par value of $100 each, the said
charter to be transferred to the said Railway Company
in consideration of the transfer by said Railway Com-
pany to defendants and the Development Company of
a large amount of its capital stock; that the balance of
the capital stock of each of the aforesaid corporations,
namely, the Michel Company, the Crown Company, the
Empire Company, and the Railroad Company should and
would become the treasury stock of each of said corpora-
tions, respectively; that defendants would from time to
time dispose of large amounts of the capital stock of the
various corporations which had been transferred to them
and the Development Company; that by means of stock
ownership in the Development Company defendants
would procure and maintain the management and control
of the Development Company, and through said owner-
ship, and by manipulation of the stock and books on ac-
count of the various corporations, said defendants would
obtain and maintain control of all such corporations with
intent and purpose to defraud said divers persons.

It was further a part of the scheme that defendants,
in their own names and in the names of the Development
Company, by means of letters, notices, reports, circulars,
and a prospectus sent and to be sent through the United
States post-office establishment, would induce persons
to purchase shares of the capital stock of the aforesaid
various corporations; and, in pursuance of such scheme,
defendants did represent and state that the properties
owned by said corporations, and the capital stock there-
of, were and would become of great value, whereas in

738 Federal Criminal Law Procedure.

truth and in fact, as defendants well knew, the properties
had no value, except that the claims of the Crown Coal
& Coke Company contained valuable deposits of coal,
which fact was fraudulently used by the defendants and
the Development Company to aid them in the sale of the
worthless stock of the aforesaid various corporations so
held individually by defendants and the Development
Company, and did falsely and fraudulently represent and
pretend that the claims of the Michel Company and the
Empire Company contained valuable deposits of a very
high quality of coal, all of which was false, as defend-
ants well knew, and did further falsely represent that
the Railway Company had acquired a right of way for
the construction of a railroad a distance of 15 miles, that
they would construct and operate said road in connec-
tion with the mines, and that the proceeds to be derived
from sales of stock would be used to build and equip said
railroad and develop and equip said coal mines, where-
as in truth and in fact, as defendants well knew, the
Railway Company had not acquired a right of way, and
proceeds derived from the sale of said stock would not
be, and the same were not, used to equip and develop
the respective properties of said corporation, or to build
said railroad, but that a large sum realized from such
stock was diverted to the use of the defendants, all with
the intent and purpose to defraud said divers persons.

And it was further a part of the scheme to represent
to intending purchasers of stock in the Empire Company
that with each $500 purchase there would be given a share
of stock in the Railway Company, that of the proceeds
received by the Empire Company $100 would be used by
that company in the purchase of one share in the Rail-
way Company, and that the $100 so expended would be
placed in the treasury of the Railway Company to be used
in the construction of said road, whereas in truth and in
fact, as the defendants well knew, no part of said $100
would be used for the equipment and development of the
pany, or used for the construction of said railroad, but
would be and was appropriated by defendants to their
own use and benefit. And it was a further part of the
scheme that defendants would represent and pretend that

Form of Indictment 739

the stock of the various corporations to be offered for
sale would be treasury stock of the various corporations,
and that the proceeds derived from the sale of such stock
would be used for the equipment and development of the
properties, whereas, in truth and in fact, as defendants
well knew, the stock so sold was not treasury stock, but
was, with but few exceptins, the individual stock of de-
fendants and the Development Company, and all the
real property and a large amount of the money derived
from the sales of such stock were appropriated by de-
fendants and the Development Company to their own
use and benefit, it being the intent and purpose of the de-
fendants thus to divert the vast amount of property and
large amount of money so obtained to their own use and
benefit and that of the Development Company, with in-
tent and purpose to defraud the said John Neiderer and
said divers other persons.

And the said defendants, on or about January 21, 1911,
for the purpose of executing said scheme and artifice,
and attempting so to do, knowingly, willfully and feloni-
ously placed and caused to be placed in the post-office
of the United States at Spokane, Wash., for mailing and
delivery a certain letter addressed to Mr. John Neiderer,
Summerville, Ore. Then follows a copy of the letter,
signed "International Development Co., per R. G. Bel-
den."

Form for Indictment for Conspiracy to Violate White
Slave Act, Approved in Linton vs. U. S., 223
Federal, 677.

"at Vancouver, in the province of British Columbia, in the Dominion
of Canada, on the first day of January, A. D. one thousand nine hun-
dred and thirteen, then and there being, did willfully, knowingly,
feloniously, unlawfully, wickedly, and maliciously conspire, combine,
confederate, and agree together, and together and with divers other
persons to said grand jurors unknown, to commit an offense against
the United States, to wit, to violate the 'White Slave Traffic Act' of
June 25, 1910 (36 Statutes at Large, 825), in the following manner
and particulars; that is to say: It was the purpose and object of the
said conspirators, and each of them to willfully, knowingly, and felo-
niously transport and cause to be transported, and aid and assist in
obtaining transportation for, and in transporting, a woman, to wit,
the said Alta Smith, alias as aforesaid, in foreign commerce from the

740 Federal Criminal Law Procedure.

city of Vancouver, in the said province of British Columbia, to the
City of Seattle, in the Northern division of the Western District of
Washington, in the United States of America, for the purpose of
prostitution, debauchery, concubinage, and other immoral purposes,
all in violation of the White Slave Traffic Act. as aforesaid. * * *"

Form of Indictment in U. S. vs. Jack Johnson, White

Slave Violation.

NORTHERN DISTRICT OF ILLINOIS { gt
Eastern Division. \

The grand jurors of the United States of America, in-
quiring for the Eastern Division of the Northern Dis-
trict of Illinois, upon their oaths present that JOHN
ARTHUR JOHNSON, otherwise known as Jack John-
son, late of the city of Chicago, on, to wit, the 15th day
of October, in the year of our Lord nineteen hundred
and ten, unlawfully and knowingly did cause to be trans-
ported in interstate commerce, that is to say from Pitts-
burgh, in the state of Pennsylvania, to Chicago, in the
state of Illinois, through the said Eastern Division of
the said Northern District of Illinois, over the railway
routes of certain corporation common carriers, to wit,
Pennsylvania Company, a corporation under the laws of
the State of Pennsylvania, and Pittsburgh, Ft. "Wayne
and Chicago Railway Company, a corporation under the
laws of the State of Illinois, which corporation common
carriers were then and there engaged in the transporta-
tion of persons by railroad over their railway routes from
Pittsburgh, in the State of Pennsylvania, to Chicago, in
the State of Illinois, a certain girl, to wit, Belle Schreiber,
otherwise known as Mrs. J. Johnson, for the purpose of
prostitution; against the peace and dignity of the said
United States, and contrary to the form of the statute
of the same in such case made and provided.

2. And the grand jurors aforesaid, upon their oaths
aforesaid, do further present that the said John Arthur
Johnson, otherwise known as Jack Johnson, late of the
city of Chicago, on, to wit, the 15th day of October, in
the year of our Lord nineteen hundred ten, unlawfully
and knowingly did cause to be transported in interstate
commerce, that is to say from Pittsburgh, in the state

Form of Indictment 741

of Pennsylvania, to Chicago, in the state of Illinois,
through the said Eastern Division of the said Northern
District of Illinois, over the railway routes of certain cor-
poration common carriers, to wit, Pennsylvania Com-
pany, corporation under the laws of the state of Penn-
sylvania, and Pittsburgh, Ft. Wayne and Chicago Rail-
way Company, a corporation under the laws of the state
of Illinois, which corporation common carriers were then
and there engaged in the transportation of persons by
railroad over their railway routes from Pittsburgh, in
the state of Pennsylvania, to Chicago, in the state of
Illinois, a certain girl, to wit, Belle Schreiber, otherwise
known as Mrs. J. Johnson, for the purpose of debauchery;
against the peace and dignity of the said United States,
and contracy to the form of the statute of the same in such
case made and provided.

3. And the grand jurors aforesaid, upon their oaths
aforesaid, do further present that the said John Arthur
Johnson, otherwise known as Jack Johnson, late of the
city of Chicago, on, to wit, the 15th day of October, in
the year of our Lord nineteen hundred ten, within the
division and district aforesaid, unlawfully, knowingly
and feloniously did cause to be transported in interstate
commerce, that is to say, from Pittsburgh, in the state of
Pennsylvania, to Chicago, in the state of Illinois, through
the said Eastern Division of the said Northern District
of Illinois, over the railway routes of certain corporation
common carriers, to wit, Pennsylvania Company, a cor-
poration under the laws of the state of Pennsylvania,
and Pittsburgh, Ft. Wayne and Chicago Railway Com-
pany, a corporation under the laws of the sate Illinois,
which corporation common carriers were then and there
engaged in the transportation of persons by railroad
over their railway routes from Pittsburgh, in the state
of Pennsylvania, to Chicago, in the state of Illinois, a
certain girl, to wit, Belle Schreiber, otherwise known as
Mrs. J. Johnson, for the purpose of prostitution; against
the peace and dignity of the said United States, and con-
trary to the form of the statute of the same in such case
made and provided.

742 Federal Criminal Law Procedure.

4. And the grand jurors aforesaid, upon their oaths
aforesaid, do further present that the said John Arthur
Johnson, otherwise known as Jack Johnson, late of the
city of Chicago, on, to wit, the 15th day of October, in
the year of our Lord nineteen hundred ten, within the
division and district aforesaid, unlawfully, knowingly
and feloniously did cause to be transported in interstate
commerce, that is to say, from Pittsburgh, in the state
of Pennsylvania, to Chicago, in the state of Illinois,
through the said Eastern Division of the said Northern
District of Illinois, over the railway routes of certain
corporation common carriers, to wit, Pennsylvania Com-
pany, a corporation under the laws of the state of Penn-
sylvania, and Pittsburgh, Ft. Wayne and Chicago Rail-
way Company, a corporation under the laws of the state
of Illinois, which corporation common carriers were then
and there engaged in the transportation of persons by
railroad over their railway routes from Pittsburgh, in the
state of Pennsylvania, to Chicago, in the state of Illinois,
a certain girl, to wit, Belle Schreiber, otherwise known
as Mrs. J. Johnson, for the purpose of debauchery; ag-
ainst the peace and dignity of the said United States,
and contrary to the form of the statute of hast enmie
and contrary to the form of the statute of the same in
such case made and provided.

5. And the grand jurors aforesaid, upon their oaths
aforesaid, do further present that the said John Arthur
Johnson, otherwise known as Jack Johnson, late of the
city of Chicago, on, to wit, the 15th day of October, in
the vear of our Lord nineteen hundred and ten, unlaw-
fully, knowingly and feloniously did aid in obtaining
transportation for a certain girl, to wit, Belle Schreiber,
otherwise known as Mrs. Jack Johnson, in interstate
commerce, that is to say, from Pittsburgh, in the state
of Pennsylvania, to Chicago, in the state of Illinois,
through the said Eastern Division of the said Northern
District of Illinois, over the railway route of certain com-
mon carriers, to wit, Pennsylvania Company, a corpora-
tion under the laws of the state of Pennsylvania and
Pittsburgh, Ft. Wayne & Chicago Railway Company, a
corporation under the laws of the state of Illinois, which

Form of Indictment 743

corporation common carriers were then and there en-
gaged in the transportation of persons by railroad over
their railway route from Pittsburgh aforesaid to Chicago
aforesaid, for a certain immoral purpose, to wit, for the
purpose of having unlawful sexual intercourse with her,
the said Belle Schreiber, otherwise known as Mrs. Jack
Johnson; against the peace and dignity of the said United
States, and contrary to the form of the statute of the
same in such case made and provided.

6. And the grand jurors aforesaid, upon their oaths
aforesaid, do further present that the said John Arthur
Johnson, otherwise known as Jack Johnson, late of the
city of Chicago, on, to wit, the 15th day of October, in
the year of our Lord nineteen hundred and ten, unlaw-
fully, knowingly and feloniously did assist in obtaining
transportation for a certain girl, to wit, Belle Schreiber,
otherwise known as Mrs. Jack Johnson, in interstate
commerce, that is to say, from Pittsburgh in the state of
Pennsylvania, to Chicago, in the state of Illinois, through
the said Eastern Division of the said Northern District
of Illinois, over the railway routes of certain common
carriers, to wit, Pennsylvania Company, a corporation
under the laws of the state of Pennsylvania and Pitts-
burgh, Ft. Wayne Chicago Railway Company, a cor-
poration under the laws of the state of Illinois, which
corporation common carries were then and there engaged
in the transporation of persons by railroad over their
railway routes from Pittsburgh aforesaid to Chicago
aforesaid, for a certain immoral purpose, to wit, for the
purpose of committing the crime against nature with
her the said Belle Schreiber, otherwise known as Mrs.
Jack Johnson; against the peace and dignity of the
said United States, and contrary to the form of the stat-
ute of the same in such case made and provided.

7. And the grand jurors aforesaid, upon their oaths
aforesaid, do further present that the said John Arthur
Johnson, otherwise known as Jack Johnson, late of the
city of Chicago, on, to wit, the 15th day of October, in
the year of our Lord nineteen hundred and ten, unlaw-
fully, knowingly and feloniously did cause to be procur-
ed a certain railroad ticket, the exact nature and descrip-

744 Federal Criminal Law Procedure.

tion of which is to the said grand jurors unknown (which
said railroad ticket entitled in the holder thereof to be
transported from Pittsburgh, Pennsylvania, to Chicago,
Illinois, over the railway routes of certain common car-
riers hereafter mentioned) to be used by a certain girl,
to wit, Belle Schreiber, otherwise known as Mrs. Jack
Johnson, in interstate commerce, that is to say, in going
from Pittsburgh in the state of Pennsylvania to Chicago
in the state of Illinois, over the railway routes of certain
corporation common carriers, to wit, Pennsylvania Com-
pany, a corporation under the laws of the state of Penn-
sylvania, and Pittsburgh, Ft. Wayne and Chicago Rail-
way Company, a corporation under the laws of Illinois,
which corporation common carriers were then and there
engaged in the transportation of persons by railroad over
their railway routes from Pittsburgh, in the state of
Pennsylvania, to Chicago, in the state of Illinois, for the
purpose of prostitution, whereby said girl Belle Schrei-
ber, otherwise known as Mrs. Jack Johnson, was then and
there transported in interstate commerce from Pittsburgh
aforesaid to Chicago aforesaid, over the railway routes
of said corporation common carriers; against the peace
and dignity of the said United States and contrary to the
form of the statute of the same in such case made and
provided.

8. And the grand jurors aforesaid, upon their oaths
aforesaid, do further present that the said John Arthur
Johnson, otherwise known as Jack Johnson, late of the
city of Chicago, on, to wit, the 15th day of October, in
the year of our Lord nineteen hundred and ten, unlaw-
fully, knowingly and feloniously did aid in procuring
a certain railroad ticket, the exact nature and descrip-
tion of which is to the said grand jurors unknown (which
said railroad ticket entitled the holder thereof to be trans-
ported from Pittsburgh, Pennsylvania, to Chicago, Illi-
nois, over the railway route of certain common carriers
hereafter mentioned) to be used by a certain girl, to wit,
Belle Schreiber, otherwise known as Mrs. Jack Johnson,
in interstate commerce, that is to say, in going from Pitts-
burgh in the state of Pennsylvania to Chicago in the
state of Illinois, over the railway route of certain corpora-

Form of Indictment 745

tion common carriers, to wit, Pennsylvania Company, a
corporation under the laws of the state of Pennsylvania,
and Pittsburgh, Ft. Wayne and Chicago Raailway Com-
pany, a corporation under the laws of Illinois, which
corporation common carriers were then and there en-
gaged in the transportation of persons by railroad over
their railway route from Pittsburgh, in the state of Penn-
sylvania, to Chicago in the state of Illinois, for a certain
immoral purpose, to wit, for the purpose of having un-
lawful sexual intercourse with her, the said Belle Schrei-
ber, otherwise known as Mrs. Jack Johnson, whereby
said girl, Belle Schreiber, otherwise known as Mrs. Jack
Johnson, was then and there transported in interstate
commerce from Pittsburgh aforesaid to Chicago afore-
said, over the railway route of said corporation common
carriers; against the peace and dignity of the said United
States and contrary to the form of the statute of the
same in such case made and provided.

9. And the grand jurors aforesaid, upon their oaths
aforesaid, do further present that the said John Arthur
Johnson, otherwise known as Jack Johnson, late of the
city of Chicago, on, to wit, the 15th day of October, in
the year of our Lord nineteen hundred and ten, unlaw-
fully, knowingly and feloniously did aid in procuring a
certain railroad ticket, the exact nature and description
of which is to the said grand jurors unknown (which said
railroad ticket entitled the holder thereof to be trans-
ported from Pittsburgh, Pennsylvania, to Chicago Ill-
inois, over the railroad routes of certain common carriers
hereafter mentioned) to be used by a certain girl to wit,
Belle Schreiber, otherwise known as Mrs. Jack Johnson,
in intrstate commerce, that is to say, in going from Pitts-
burgh in the state of Pennsylvania to Chicago in the
state of Illinois, over the railway routes of certain cor-
poration common carriers, to wit, Pennsylvania Com-
pany, a corporation under the laws of the state of Pen-
nsylvania, and Pittsburgh, Ft, Wayne and Chicago
Railway Company, a corporation under the laws of Illi-
nois, which corporation common carriers were then and
there engaged in the transporation of persons by railroad
over their railwav routes from Pittsburgh, in the state

746 Federal Criminal Law Procedure.

of Pennsylvania, to Chicago, in the state of Illinois, with
the intent on the part of said John Arthur Johnson, other-
wise known as Jack Johnson, to induce the said Belle
Schreiber to give herself up to the practice of prostitu-
tion, whereby said girl, Belle Schrieber, otherwise known
as Mrs. Jack Johnson, was then and there transported in
interstate commerce from Pittsburgh aforesaid to Chi-
cago aforesaid, over the railway routes of said corpora-
tion common carriers; against the peace and dignity of
the said United States, and contrary to the form of the
statute of the same in such case made and provided.

10. And the grand jurors aforesaid, upon their oaths
aforesaid, do further present that the said John Arthur
Johnson, otherwise known as Jack Johnson, late of the
city of Chicago, on, to wit, the 15th day of October, in
the year of our Lord nineteen hundred and ten, unlaw
fully did knowingly cause to be transported in interstate
commerce, that is to say from Pittsburgh, in the state of
Pennsylvania, to Chicago, in the state of Illinois, through
the said Eastern Division of the said Northern District
of Illinois, over the railway route of certain corporation
common carriers, to wit, Pennsylvania Company, a cor-
poration under the laws of the state of Pennsylvania,
and Pittsburgh, Ft. Wayne and Chicago Railway Com-
pany, a corporation under the laws of the state of Illi-
nois, which corporation common carriers were then and
there engaged in the transportation of persons by rail-
road over their railway route from Pittsburgh, in the
state of Pennsylvania, to Chicago, in the state of Illinois,
a certain girl, to wit, Belle Schreiber, otherwise known
as Mrs. J. Johnson, for a certain immoral purpose, to wit,
for the purpose of having unlawful sexual intercourse
with her, the said Belle Schreiber; against the peace and
dignity of the said United States, and contrary to the
from of the statute of the same in such case made and
provided.

11. And the grand jurors aforesaid, upon their oath
aforesaid, do further present that the said John Arthur
Johnson, otherwise known as Jack Johnson, late of the
city of Chicago, on, to wit, the 15th day of October, in
the year of our Lord nineteen hundred and ten, unlaw-

Form of Indictment 747

fully did knowingly cause to be transported in interstate
commerce, that is to say from Pittsburgh, in the state of
Pennsylvania, to Chicago, in the state of Illinois, through
the said Eastern Division of the said Northern District
of Illinois, over the railway route of certain corporation
common carriers, to wit, Pennsylvania Company, a cor-
poration under the laws of the state of Pennsylvania,
and Pittsburgh, Ft. Wayne and Chicago Railway Com-
pany, a corporation under the laws of the state of Illi-
nois, which corporation common carriers were then and
there engaged in the transporation of persons by rail-
road over their railway route from Pittsburgh, in the
state of Pennsylvania, to Chicago, in the state of Illinois,
a certain girl, to wit, Belle Schreiber, otherwise known
as Mrs. J. Johnson, for a certain immoral purpose, to
wit, for the purpose of committing the crime against
nature with and upon her, the said Belle Schreiber, other-
wise known as Mrs. J. Johnson; against the peace and
dignity of the said United States, and contrary to the
form of the statute of the same in such case made and
provided.

United States Attorney.
PETITION FOR WRIT OF ERROR.

No.

UNITED STATES OF AMERICA

vs.
JOHN DOE.

In the District
"Court of the Unit-
ed States for the
Northern District
of Texas.

John Doe, the defendant, in the above-numbered and
entitled cause, feeling himself aggrieved by the verdict

of the jury returned herein on the day of

. .A. D. 1915, and judgment rendered thereon on the

day of A. D. 1915, comes by Lilian B.

Aveilhe, his attorney, and petitions the Court for an or-
der allowing the defendant to prosecute a writ of error

748 Federal Criminal Law Procedure.

to the Honorable United States Circuit Court of Appeals
for the Fifth Circuit under and according to the laws 01
the United States in that behalf provided, and your peti-
tioner will ever pray.

Lilian B. Aveilhe,
Attorney for Defendant.

ORDER ALLOWING WRIT OF ERROR.

No.

UNITED STATES OF AMERICA

vs.
JOHN DOE.

In the United
States District
Court for the North-
ern District of Tex-
as, at Dallas.

This the 15th day of April, 1915, came the defendant,
by his attorney, and filed herein and presented to the
Court his petition praying for the allowance of a writ
of error intended to be urged by him, praying also that
a transcript of the records and proceedings and papers
upon which the judgment herein was rendered, duly au-
thenticated, may be sent to the United States Circuit
Court of Appeals for the Fifth Judicial Circuit, and that
such other and further proceedings may be had as may
be proper in the premises.

On consideration whereof the Court does allow the
writ of error upon the defendant giving bond according
to law in the sum of dollars, which shall oper-
ate as a supersedeas bond.

United States District Judge

WRIT OF ERROR.

The United States Circuit Court of Appeals for the Fifth

Circuit.
The United States of America
Fifth Judicial Circuit

Form of Indictment 749

The President of the. United States, to the Honorable
Judge of the District Court of the United States for
the Northern District of Texas, Greeting:
Because in the record and proceedings, as also in the
rendition of the judgment, of a plea which is in the said
District Court, before you, between the United States of
America, plaintiffs, and John Doe, defendant, a manifest
error hath happened, to the great damage of the said
John Doe, defendant, as by his complaint appears, we
being willing that error, if any hath been, should be duly
corrected, and full and complete justice done to the par-
ties aforesaid, in this behalf, do command you, if judg-
ment be therein given, that then, under your seal, dis
tinctly and openly, you send the record and proceedings
aforesaid, with all concerning the same, to the United
States Circuit Court of Appeals for the Fifth Circuit,
together with this writ, so that you have the same at New
Orleans in said circuit within thirty days from the date
hereof, in the said Circuit Court of Appeals, to be then
and there held, that the record and proceedings afore-
said, being inspected, the said Circuit Court of Appeals
may cause further to be done therein to correct that er-
ror, what of right, and according to the laws and cus-
toms of the United States should be done.

United States District Judge.
WITNESS THE HONORABLE

Judge of the District Court of the

United States, this the

day of , 1915, and

the year of the in-
dependence of the United
States of America.

ATTEST:

Clerk.

750 Federal Criminal Law Procedure.

CITATION •

The United States Circuit Court of Appeals for the Fifth

Circuit.
The United States of America
Fifth Judicial Circuit
To the United States of America, Greeting:

You are hereby cited and admonished to be and ap-
pear at session of the United States Circuit of Ap-
peals for the Fifth Circuit to be held at the city of New
Orleans in said Circuit on the .... day of next pur-
suant to a writ of error filed in the Clerk's office of the
District Court of the United States for the Northern Dis-
trict of Texas, wherein John Doe is plaintiff in error and
you are the defendants in error, to show cause, if any
there be, why the judgment rendered against the said
plaintiff in error, as in the said writ of error mentioned,
should not be corrected, and why speed justice should
not be done to the parties in that behalf.

WITNESS THE HONORABLE EDWARD M.
WHITE, CHIEF JUSTICE OF THE UNITED STATES,

this the day of in the year of our Lord

one thousand nine hundred and , and of the

independence of the United States of America the One
Hundred and

United States District Judge,
or

Clerk of the United States District Court of the Northern

District of Texas.

WRIT OF ERROR BOND.
No.

UNITED STATES OF AMERICA 1 In the District

Court of the United
vs. ,> States for the North-

ern District of Tex-
as.

JOHN DOE.

Form of Indictment 751

We, John Doe, and the other subscribers hereto, joint-
ly and severally, acknowledge ourselves indebted to the
United States of America in the sum of one thousand
dollars lawful money of the United States of America,
to be levied on our and each of our goods, chattels, lands
and tenements, upon this condition:

Whereas, the said John Doe, has sued out a writ of
error from the judgment of the United States District
Court for the Northern District of Texas, in Cause No.

in said Court, wherein the United States of

America are plaintiffs and John Doe is defendant, for
a review of the judgment in the United States Circuit
Court of Appeals for the Fifth Circuit :

Now, if the said John Doe shall appear and surrender
in the District Court of the United States for the North-
ern District of Texas on and after the filing in said Dis-
trict Court of the mandate of the United States Circuit
Court of Appeals for the Fifth Circuit, and from time to
time thereafter as he may be required to answer any
further proceedings, and abide by and perform any judg-
ment or order which may be had or rendered therein in
this case, and shall abide by and perforin any judgment
or order which may be rendered in said United States
Circuit Court of Appeals for the Fifth Circuit, and not
depart from said District Court without leave thereof,
then this obligation shall be void; otherwise to remain in
full force and virtue.

WITNESS our hands and seals on this the day

of A. D. 1915.

Taken and approved this the

day of A. D. 1915, be-
fore me.

United States District Judge.

752 Federal Criminal Law Procedure.

PRAECIPE FOR RECORD.
UNITED STATES OF AMERICA

vs.
JOHN DOE.
To L. C. Maynard,
Clerk.

In the United States
District Court for the
Northern District of
Texas, at Dallas.

SIR: Please prepare a transcript of the record in the
case of United States vs. John Doe and include therein
the following papers: Indictment; defendant's motion
to abate; defendant's motion to quash; judgment; sen-
tence; defendant's motion for a new trial; defendant's
amended motion in arrest cf judgment; bill of exceptions;
charge of the Court; (if the Court orders the same sent
up) assignments of error; petition for writ of error; order
allowing writ of error and fixing bail; writ of error bond;
writ of error; citation in error,

Respectfully,

Lilian B. Aveilhe,
Attorney for the Defendant.

CRIMINAL STATUTES.

Complete Penal Code, Together with an Appendix,
which Contains a Reference to all Laws of a General
Nature in force on December 1, 1909, which have Penal
Provisions, and which are not Contained in the 1910
Criminal Code.

EXPLANATIONS— All criminal statutes were re-
vised and collated into what is called the Revised Stat-
utes of 1878. Between that time and 1910 there was, of
course, much important criminal legislation and the 1910
Code, therefore, became necessary. That cede, however, "^
does not include all of the federal criminal statutes, many
still remaining alive in the 1878 revision. There are also
many laws having criminal provisions which are not
included in either the Code or the Revised Statutes.

The government prepared, at its printing office, in 1911,
a pamphlet which is supposed to contain all of the crim-
inal stautes up to the date of such printing, or to at least
point where such statute may be found. In order that
this volume may be as complete as possible, I secured
a copy of this government publication, and have includ-
ed it herein. The information that comes under the head
of appendix is valuable since the general headings thereof
will enable one to trace and find quickly any criminal
provision, which is not included in the 1910 act. The
reference is to the 1878 statutes and also to the statutes-
at-large.

The most important laws, enacted since 1910 are to be
found in the preceding chapters. While the 1910 Code
is in this chapter, the most important laws up to De-
cember 1st, 1921, will be found in this volume. With
the preceding chapters and the Penal Code which fol-
lows this word practically every criminal statute or a
reference to it, will be found.

For additional reference books I ' gladly commend
Federal Statutes Annotated, U. S. Complied Statutes and
Barnes Federal Code, the latter, though without annota-

(753)

754 Federal Criminal Law Procedure.

tions, being the most portable. At the date of this writing
it is composed of an original edition and of a 1921 sup-
plement which, however, only covers the years 1919 and
1920, and does not embrace any of the legislation of 1921.

[Act of March 4, 1909; 35 Stat., 1088.]
An Act To codify, revise, and amend the penal laws of the United States

Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress as-
sembled, That the penal laws of the United States be,
and they hereby are, codified, revised, and amended, with
title, chapters, headnotes, and sections, entitled, num-
bered, and to read as follows:

CRIMES

CHAPTER ONE.

OFFENSES AGAINST THE EXISTENCE OF THE GOVERNMENT.

§ 1. Treason.

2. Punishment of treason.

3. Misprision of treason.

4. Inciting or engaging in rebellion or insurrection.

5. Criminal correspondence with foreign governments.

6. Seditious Conspiracy.

7. Recruiting soldiers or sailors to serve against the United States.

8. Enlistment to serve against the United States.

§ 1. Treason. — Whoever, owing allegiance to the
United States, levies war against them or adheres to their
enemies, giving them aid and comfort within the United
States or elsewhere, is guilty of treason. (R. S., s. 5331.)

U. S. v. Vilato, 2 Dall., 370; The
Insurgents, 2 Dall., 385; Ex Parte Bol
man & Swartout, 4 Cranch, 75; U. S. v.
Burr, 4 Cranch, 469; Hanauer v. Doane,
12 Wall., 342; Carlisle v. U. S., 16
Wall., 147; Case of Fries, Wharton St.
Tr., 458, 610, 9 Fed. Cas., 826, 924;
Shortridge v. Macon, Chase, 136. 22
Fed. Cas., 20; U. S. v. Burr, 1 Burr's
Trial, 14, 16, 2 Burr's Trial, 402, 405,
417, 25 Fed. Cas., 2, 52, 55. 210; U. S.
v. Cathcart, 1 Bond, 556, 25 Fed. Cas.,
344; U. S. v. Greathouse, 2 Ab. C. C.
364, 26 Fed. Cas., 18; U. S. v. Hodges,

Brun. Col. Cas., 465, 26 Fed. Cas., 332,
U. S. v. Hoxie, 1 Paine, 265, 26 Fed.
Cas., 397; U. S. v. Mitchell, 2 Dall., 348,
26 Fed. Cas., 1277; U. S. v. Vigol, 2 Dall.,
346, 28 Fed. Cas., 376; U. S. v. Pryor, 3
Wash., 234, 27 Fed. Cas., 628; Charges to
Grand Jury, 2 Curt., 630. 30 Fed. Cas.,
1024; 4 Blatch., 518, 30 Fed. Cas., 1032;
5 Blatch., 549, 30 Fed. Cas., 1034; 1 Bond.
609, 30 Fed. Cas. 1036; 1 Spr., 602, 30
Fed. Cas., 1039; 2 Spr., 292, 30 Fed.
Cas., 1042; 1 story, 614, 30 Fed. Cas.
1046; 2 Wall., jr., 134, 30 Fed. Cas.,
1047; 2 Spr. 285, 30 Fed. Cas., 1049.

§ 2. Punishment of treason. — Whoever is convicted
of treason shall suffer death; or, at the discretion of the
court, shall be imprisoned not less than five years and
fined not less than ten thousand dollars, to be levied on
and collected out of any or all of his property, real and
personal of which he was the owner at the time of com-
mitting such treason, any sale or conveyance to the con-
trary notwithstanding; and every person so convicted of
treason shall, moreover, be incapable of holding any
office under the United States. (R. S., s. 5332.)

Confiscation Cases, 20 Wall., 92; Wal- 202; Windsor v. McVeigh, 93 U. S.,
lack et al. v. Van Riswick, 92 V. S., 274.

§ 3. Misprision of treason. — Whoever, owing alle-
giance to the United States and having knowledge of

(755)

756 Federal Criminal Law Procedure.

the commission of any treason against them, conceals,
and does not, as soon as may be, disclose and make known
the same to the President or to some judge of the United
States, or to the governor or to some judge or justice of
a particular State, is guilty of misprision of treason and
shall be imprisoned not more than seven years and fined
not more than one thousand dollars. (E. S., s. 5333.)

U. S. v. Wiltberger, 5 Wheat, 97; Fed. Cas., 270; U. S. v. Tract of Land,
Confiscation Cases, 1 Woods, 221, 6 1 Woods, 475, 28 Fed. Cas., 203.

§ 4. Inciting or engaging in rebellion or insurrection.
— Whoever incites, sets on foot, assists, or engages in
any rebellion or insurrection against the authority of the
United States or the laws thereof, or gives aid or comfort
thereto, shall be imprisoned not more than ten years, or
fined not more than ten thousand dollars, or both; and
shall, moreover, be incapable of holding any office under
the United States. (R. S., s. 5334.)

§ 5. Criminal correspondence with foreign govern-
ments.—Every citizen of the United States, whether
actually resident or abiding within the same, or in any
place subject to the jurisdiction thereof, or in any foreign
country, without the permission or authority of the Gov-
ernment, directly or indirectly, commences or carries on
any verbal or written correspondence or intercourse with
any foreign government or any officer or agent thereof,
with an intent to influence the measures or conduct of
any foreign government or of any officer or agent there-
of, in relation to any disputes or controversies with the
United States, or to defeat the measures of the Govern-
ment of the United States, and every person, being a
citizen of or resident within the United States or in any
place subject to the jurisdiction thereof, and not duly
authorized, counsels, advises, or assists in any such cor-
respondence with such intent, shall be fined not more
than five thousand dollars and imprisoned not more than
three years; but nothing in this section shall be con-
strued to abridge the right of a citizen to apply, himself
or his agent, to any foreign government or the agents
thereof for redress of any injury which he may have sus-

Offenses Against Government. 757

tainecl from such government or any of its agents or sub-
jects. (R. S., s. 5335.)

§ 6. Seditious conspiracy. — If two or more persons in
any State or Territory, or in any place subject to the
jurisdiction of the United States, conspire to overthrow,
put down, or to destroy by force the Government of the
United States, or to levy war against them, or to oppose
by force the authority thereof, or by force to prevent,
hinder, or delay the execution of any law of the United
States, or by force to seize, take, or possess any property
of the United States contrary to the authority thereof,
they shall each be fined not more than five thousand dol-
lars, or imprisoned not more than six years, or both. (R.
S., s. 5336.)

Ex parte Lange, 18 Wall., 163.

§ 7. Recruiting soldiers or sailors to serve against the
United States. — Whoever recruits soldiers or sailors with-
in the United States, or in any place subject to the juris-
diction thereof, to engage in armed hostility against the
same, or opens within the United States, or in any place
subject to the jurisdiction thereof, a recruiting station
for the enlistment of such soldiers or sailors to serve in
any manner in armed hostility against the United States,
shall be fined not more than one thousand dollars and
imprisoned not more than five years. (R. S., s. 5337.)

§ 8. Enlistment to serve against the United States. —
Every person enlisted or engaged within the United
States or in any place subject to the jurisdiction thereof,
with intent to serve in armed hostility against the United
States, shall be fined one hundred dollars and imprisoned
not more than three years. (R. S., s. 5338.)

CHAPTER TWO.

OFFENSES AGAINST NEUTRALITY.

§ 9. Accepting a foreign commission.

10. Enlisting in foreign service.

11. Arming vessels against people at peace with the United States.

12. Augmenting force of foreign vessel of war.

13. Military expeditions against people at peace with the United

States.

14. Enforcement of foregoing provisions.

15. Compelling foreign vessels to depart.

16. Armed vessels to give bond on clearance.

17. Detention by collectors of customs.

18. Construction of this chapter.

§ 9. Accepting a foreign commission. — Every citizen
of the United States who, within the territory or juris-
diction thereof, accepts and exercises a commission to
serve a foreign prince, state, colony, district, or people,
in war, by land or by sea, against any prince, state, col-
ony, district, or people, with whom the United States are
at peace, shall be fined not more than two thousand dol-
lars and imprisoned not more than three years. (R. S. s.
5281.)

U. S. v. Williams, 3 Cranch, 83; Ker of the Salvadorean Refugees, 29 Am.

v. Illinois, 119 U. S., 436; Wiborg v. L. Rev., 1; The Ambrose Light, 5 Fed.

U. S., 163 U. S., 632, 73 Fed. Rep., Rep., 408.
159; John Bassett Moore upon The Case

§ 10. Enlisting in foreign service. — Whoever, within
the territory or jurisdiction of the United States, enlists,
or enters himself, or hires or retains another person to
enlist or enter himself, or to go beyond the limits or juris-
diction of the United States with intent to be enlisted or
entered in the service of any foreign prince, state, colony,
district, or people, as a soldier, or as a marine or seaman,
on board of any vessel of war, letter of marque, or priva-
teer, shall be fined not more than one thousand dollars
and imprisoned not more than three years. (R. S. s.
5282.)

Chacon v. Bales of Cochineal, 1 Brock., Pitts.. L. J.. 194, 26 Fed. Cas., 293;

478, 5 Fed. Cas., 390; Stoughton v. U. S. v. Kazinski, 2 Sprague, 7, 26

Taylor, 2 Paine, 665, 13 Fed. Cas., 1179; Fed. Cas., 682; 4 A. G. Op., 336; 7

Ex parte Needham, Pet. C. C; 487. A. G. Op., 367.
17 Fed. Cas., 1274, U. S. v. Hertz, 3

(758)

Offenses Against Neutrality,

759

§ 11. Arming vessels against people at peace with the
United States. — Whoever, within the territory or juris-
diction of the United States, fits out and arms, or at-
tempts to fit out and arm, or procures to be fitted out and
armed, or knowingly is concerned in the furnishing,
fitting out, or arming of any vessel, with intent that such
vessel shall be employed in the service of any foreign
prince or state, or of any colony, district, or people, to
cruise or commit hostilities against the subjects, citizens,
or property of any foreign prince or state, or of any
colony, district, or people, with whom the United States
are at peace, or whoever issues or delivers a commission
within the territory or jurisdiction of the United States
for any vessel, to the intent that she may be so employed,
shall be fined not more than ten thousand dollars and
imprisoned not more than three years. And every such
vessel, her tackle, apparel, and furniture, together with
all materials, arms, ammunition, and stores which may
have been procured for the building and equipment
thereof, shall be forfeited; one-half to the use of the in-
former and the other half to the use of the United States.
(R. S. s. 5283.)

U. S. v. Guinet, 2 Dall., 321; Moodie
v. The Alfred, 3 Dal!., 307; Gelston v.
Hoyt, 3 Wheat., 246; The Estrella, 4
Wheat., 298; La Conception, 6 Wheat.,
235; The Santissima Trinidad, 7 Wheat.,
283; The Gran Para, 7 Wheat., 471;
The Santa Maria, 7 Wheat., 490; The
Arrogante Barcelones, 7 Wheat., 496;
The Monta Allegre, 7 Wheat., 520; U.
S. v. Reyburn, 6 Pet., 352; U. S. v.
Quincy, 6 Pet., 445; The Bermuda, 3
Wall., 551: U. S. v. Weed, 72 U. S.
62; The Watchful, 7i U. S., 91; The
Three Friends, 166 U. S., 1, 52, 78 Fed.
Rep., 175. The Chapman, 4 Sawyer.
501, S Fed. Cas., 471; The Florida, 4
Ben., 452, 9 Fed. Cas., 321; Tuando v.
Taylor, 2 Paine, 652, 13 Fed. Cas., 1179;
The Meteor, 1 Am. L. Rev., 401, 17 Fed.
Cas., 178; Moodie v. The Brothers, Bee,
76, 17 Fed. Cas., 653; Sawyer v. Steele,

§ 12. Augmenting force of foreign vessel of war. —
Whoever, within the territory or jurisdiction of the
United States, increases or augments, or procures to be
increased or augmented, or knowingly is concerned in
increasing or augmenting, the force of any ship of war,
cruiser, or other armed vessel which, at the time of her
arrival within the United States, was a ship of war, or
cruiser or armed vessel, in the service of any foreign

3 Wash., 464, 21 Fed. Cas., 583; U.
S. v. Skinner, 1 Brun. Col. Cas., 446;
2 Wheeler's Crim. Cases, 232, 27 Fed.
Cas., 1123; U. S. v. The Mary Hogan,
18 Fed. Rep., 529; U. S. v. Two
Hundred and Fourteen Boxes. 20 Fed.
Rep., 50; Stannick v. The Friendship,
Bee, 40, 22 Fed. Cas., 1056; The City
of Mexico, 24 Fed. Rep. 33, 25 Fed.
Rep., 925; The City of Mexico, 28
Fed. Rep., 148, 32 Fed. Rep., 105;
The Carondolet, 37 Fed. Rep., 799;
The Conserva, 38 Fed. Rep., 431; U.
S. v. The Resolute, 40 Fed. Rep.. 543:
U. S. v. The Robert and Minnie, 47
Fed. Rep., 84; U. S. v. Trumbull. 48
Fed. Rep., 99; The Itata, 56 Fed. Rep..
505. 49 Fed. Rep.. 646: The Laurada.
85 Fed. Rep., 760, The Huascar, 3 Whar-
ton's Dig., 474.

760

Federal Criminal Law Procedure.

prince or state, or of any colony, district, or people, or be-
longing to the subjects or citizens of any such prince or
state, colony, district, or people, the same being at war
with any foreign prince or state, or of any colony, district,
or people, with whom the United States are at peace, by
adding to the number of the guns of such vessel, or by
changing those on board of her for guns of a larger cali-
ber, or by adding thereto any equipment solely applica-
ble to war, shall be fined not more than one thousand dol-
lars and imprisoned not more than one year. (R. S. s.
5285.)

The Alerta v. Moran, 9 Cranch, 359;
U. S. v. Grassin, 3 Wash., 65, 26 Fed.
Cas., 10.

§ 13. Military expeditions against people at peace
with the United States. — Whoever, within the territory
or jurisdiction of the United States, begins, or sets on
foot, or provides_or prepares the means for, any military
expedition or enterprise, to be carried on from thence
against the territory or dominions of any foreign prince
or state, or of any colony, district, or people, with whom
the United States are at peace, shall be fined not more
than three thousand dollars and imprisoned not more
than three years. (R. S. s. 5286.)

U. S. v. Pirates, 5 Wheat., 184; U.
S. v. Hallock, 154 U. S., 537; Duvall v.
U. S., 154 U. S., 548; U. S. v. Wiborg,
163 U. S., 632; The Three Friends, 166
U. S., 1, 78; The Chapman, 4 Sawyer,
501, 5 Fed. Cas., 471; Ex parte Needham,
1 Pet. C C, 487, 17 Fed. Cas., 1275;
U. S. v. Lumsden, 1 Bond, 5, 26 Fed.
Cas.. 1012; Charges to Grand Jury, 5
Blatch., 556, 30 Fed. Cas., 1017;" 2 Mc-
Lean, 1, 30 Fed. Cas., 1018; 5 McLean,
249, 30 Fed. Cas., 1020; 5 McLean, 306,
30 Fed. Cas., 1021; 4 Wkly. L. Gaz.,
214, 30 Fed. Cas., 1023; 2 Curt., 630,
30 Fed. Cas., 1024; U. S. v. Rand, 17
Fed. Rep., 142; City of Mexico, 32 Fed.
Rep., 105; The Cardondelet, 37 Fed. Rep.,

§ 14. Enforcement of foreign provisions. — The dis-
trict courts shall take cognizance of all complaints, by
whomsoever instituted, in cases of captures made within
the waters of the United States, or within a marine
league of the coasts or shores thereof. In every case in
which a vessel is fitted out and armed, or attempted to be
fitted out and armed or in which the force of any vessel
of war, cruiser, or other armed vessel is increased or
augmented, or in which any military expedition or enter-

799; U. S. v. The Resolute, 40 Fed
Rep., 543; U. S. v. The Robert and Min
nie. 47 Fed. Rep., 84 U. S. v. Trumbull
48 Fed. Rep., 99; The Itata, 46 Fed
Rep., 646; U. S. v. Ybanez. 53 Fed
Rep., 536; Hendrick v. Gonzales, 67
Fed. Rep., 351; U. S. v. Pena, 69 Fed
Rep., 983; U. S. v. Hughes, 70 Fed
Rep. 972, 75 Fed. Rep., 267; U. S. v
O'Brien, 75 Fed. Rep., 900; U. S. v
Hart, 78 Fed. Rep., 868, 74 Fed. Rep.
724; U. S. v. Nunez. 82 Fed. Rep. 599
Hart v. U. S.. 84 Fed. Rep., 799; U
S. v. Murphy, 84 Fed. Rep., 609. The
Madagascar Expedition, 29 Am. L. Rev.,
539.

Offenses Against Neutrality. 761

prise is begun or set on foot, contrary to the provisions
and prohibitions of this chapter; and in every case of
the capture of a vessel within the jurisdiction or protec-
tion of the United States as before defined ; and in every
case in which any process issuing out of any court of
the United States is disobeyed or resisted by any person
having the custody of any vessel of war, cruiser, or
other armed vessel of any foreign prince or state, or of
any colony, district, or people, or of any subjects or citi-
zens of any foreign prince or state, or of any colony, dis-
trict, or people, it shall be lawful for the- President, or
such other person as he shall have empowered for that
purpose, to employ such part of the land or naval forces
of the United States, or the militia thereof, for the pur-
pose of taking possession of and detaining any such ves-
sel, with her prizes, if any, in order to enforce the exe-
cution of the prohibitions and penalties of this chapter,
and the restoring of such prizes in the cases in which
restoration shall be adjudged; and also for the purpose
of preventing the carrying on of any such expedition or
enterprise from the territory or jurisdiction of the Unit-
ed States against the territory or dominion of any for-
eign prince or state, or of any colony, district, or people
with whom the United States are at peace. (R. S. s.
5287.)

Stoughton v. Dimick, 3 Blatch., 356;
29 Vt., 535, 23 Fed. Cas., 77.

§ 15. Compelling foreign vessels, to depart. — It shall
be lawful for the President, or such person as he shall
empower for that purpose, to employ such part of the
land or naval forces of the United States, or of the mili-
tia thereof, as shall be necessary to compel any foreign
vessel to depart the United States in all cases in which,
by the laws of nations or the treaties of the United
States, she ought not to remain within the United States.
(R. S. s. 5288.)

§ 16. Armed vessels to give bond on clearance. —
The owners or consignees of every armed vessel sailing
out of the ports of, or under the jurisdiction of, the Unit-
ed States, belonging wholly or in part to citizens thereof,
shall, before clearing out the same, give bond to the Unit-
ed States, with sufficient sureties, in double the amount
of the value of the vessel and cargo on board, including

762 Federal Criminal Law Procedure.

her armament, conditioned that the vessel shall not be
employed by such owners to cruise or commit hostilities
against the subjects, citizens, or property of any foreign
prince or state, or of any colony, district, or people with
whom the United States are at peace. (R. S. s. 5289.)

U. S. v. Quincy, 6 Pet., 445; U. S.
v. Quitman, 2 Am. L. Rev., 645, 27 Fed.
Cas., 680.

§ 17. Detention by collector of customs. — The several
collectors of the customs shall detain any vessel mani-
festly built for warlike purposes, and about to depart
the United States, or any place subject to the jurisdic-
tion thereof, the cargo of which principally consists of
arms and munitions of war, when the number of men
shipped on board, or other circumstances, render it prob-
able that such vessel is intended to be employed by the
owners to cruise or commit hostilities upon the subjects,
citizens, or property of any foreign prince or state, or of
any colony, district, or people with whom the United
States are at peace, until the decision of the President
is had thereon, or until the owner gives such bond and
security as is required of the owners of armed vessels by
the preceding section. (R. S., s. 5290.)

Hendricks v. Gonzales, 67 Fed. Rep.,
659.

§ 18. Construction of this chapter. — The provisions
of this chapter shall not be construed to extend to any
subject or citizen of any foreign prince, state, colony, dis-
trict, or people who is transiently within the United States
and enlists or enters himself on board of any vessel of
war, letter of marque, or privateer, which at the time of
its arrival within the United States was fitted and equip-
ped as such, or hires or retains another subject or citi-
zen of the same foreign prince, state, colony, district, or
people who is transiently within the United States to en-
list or enter himself to serve such foreign prince, state, col-
ony, district, or people on board such vessel of war, let-
ter of marque, or privateer, if the United States shall
then be at peace with such foreign prince, state, colony,
district, or people. Nor shall they be construed to pre-
vent the prosecution or punishment of treason, or of
anv piracy defined by the laws of the United States. (R.
S., s. 5291.)

CHAPTER THREE.

OFFENSES AGAINST THE ELECTIVE FRANCHISE AND CIVIL

RIGHTS OF CITIZENS.

19. Conspiracy to injure, etc., citizens in the exercise of civil

rights.

20. Depriving persons of civil rights under color of State laws.

21. Conspiring to prevent officer from performing duties.

22. Unlawful presence of troops at elections.

23. Intimidation of voters by officers, etc., of Army or Navy.

24. Officers of Army or Navy prescribing qualifications of voters.

25. Officers, etc., of Army or Navy interfering with officers of

election, etc.

26. Persons disqualified from holding office; when soldiers, etc.,

may vote.

§ 19. Conspiracy to injure, etc., citizens in the exer-
cise of civil rights. — If two or more persons conspire
to injure, oppress, threaten, or intimidate any citizen in
the free exercise or enjoyment of any right or privilege
secured to him by the Constitution or laws of the United
States, or because of his having so exercised the same,
or if two or more persons go in disguise on the high-
way, or on the premises of another, with intent to pre-
vent or hinder his free exercise or enjoyment of any
right or privilege so secured, they shall be fined not more
than five thousand dollars and imprisoned not more than
ten years, and shall, moreover, be thereafter ineligible
to any office, or place of honor, profit, or trust created
by the Constitution or laws of the United States. (R. S.,
s. 5508.)

U. S. v. Reese, 92 U. S., 214; U. S.
v. Cruikshank et al., 92 U. S. 542, 1
Woods, 308, 25 Fed. Cas., 707; Strau-
der v. W. Va., 100 U. S., 303; Va. v.
Reeves, 100 U. S., 313; Ex parte
Virginia, 100 U. S., 339; Ex parte Sie-
bold, 100 U. S., 371; Ex parte Clark,
100 U. S., 399; Neal v. Delaware. 103
U. S., 370; U. S. v. Harris, 106 U. S.,
629; Civil Rights Cases, 109 U. S., 17;
Ex parte Yarbrough, 110 U. S., 651; U.
S. v. Waddell, 16 Fed. Rep., 221, 112
U. S., 76; Baldwin v. Frank, 120 U. S.,
678; In re Coy, 127 U. S.. 731; In
re Neagle. 135 U. S., 1; In re Lan-
caster, 137 U. S., 393; Logan v. U. S.,
144 U. S., 263; Brown v. U. S., 150 U. S.,
93; In re Quarles, 158 U. S., 532; Motes
v. U. S., 178 U. S., 458; Hodges v.

U. S.. 203 U. S.. 1; Rakes v. U. S.,
212 U. S., 55; Slaughter House Case,
1 Woods, 21, 15 Fed. Cas., 649, 16 Wall..
36; Seeley v. Knox, 2 Woods, 368, 21
Fed. Cas., 1014; U. S. v. Butler, 1
Hughes, 457, 25 Fed. Cas., 213; U. S.
v. Butler, 4 Hughes, 512, 25 Fed. Cas..
226 U. S. v. Degrieff, 16 Blatch., 20,
25 Fed. Cas., 799; U. S. v. Mitchel, 1
Hughes, 439; 26 Fed. Cas., 1283; Le
Grand v. U. S., 12 Fed. Rep.. 577; In
re Baldwin, 27 Fed. Rep., 187; U. S.
v. Lancaster, 44 Fed. Rep.. 885; U. S.
v. Sanges, 48 Fed. Rep., 78; U. S. v.
Patrick, 53 Fed. Rep., 356; U. S. v. Pat-
rick, 54 Fed. Rep., 338; Haynes v. U.
S., 101 Fed. Rep., 817; U. S. v. Davis,
103 Fed. Rep.. 457; Mullen v. U. S., 106
Fed. Rep., 892; Davis v. U. S., 107 Fed.

(763)

764 Federal Criminal Law Procedure.

Rep., 753: Karem v. U. S., 121 Fed. Rep., 254; U. S. v. Moore, 129 Fed. Rep., 630;

250; Morris v. U. S., 125 Fed. Rep., U. S. v. Powell, 151 Fed. Rep., 648;

322; McKenna v. U. S., 127 Fed. Rep., Smith v. U. S., 157 Fed. Rep., 721; U.

S8; U. S. v. Eberhart, 127 Fed. Rep., S. v. Mason, 213 U. S., 115.

§ 20. Depriving persons of civil rights under color
of State law. — Whoever, under color of any law, statute,
ordinance, regulation, or custom, wilfully subjects, or
causes to be subjected, any inhabitant of any State, Ter-
ritory, or District to the deprivation of any rights, priv-
ileges, or immunities secured or protected by the Con-
stitution and laws of the United States, or to different
punishments, pains, or penalties, on account of such in-
habitant being an alien, or by reason of his color, or
race, than are prescribed for the punishment of citizens,
shall be fined not more than one thousand dollars, or
imprisoned not more than one year, or both. (R. S., s.

Civil Rights Cases, 109 U. S., 16; U. 481; U. S. -v. Buntin, 10 Fed. Rep., 730;
S. v. Blackburn, 8 Chi. L. N., 26, 24 he Grand v. U. S., 12 Fed. Rep., 577;
Fed. Cas., 1158; Re Parrott, 1 Fed. Rep., U. S., v. Washington, 20 Fed. Rep., 630.

5510.)

§ 21. Conspiracy to prevent person from holding of-
fice or officer from performing duty under United States,
etc. — If two or more persons in any State, Territory, or
District conspire to prevent, by force, intimidation, or
threat, any person from accepting or holding any office,
trust, or place of confidence under the United States, or
from discharging any duties thereof; or to induce by
like means any officer of the United States to leave any
State, Territory, District, or place, where his duties as
an officer are required to be performed, or to injure him
in his person or property on account of his lawful dis-
charge of the duties of his office, or while engaged in
the lawful discharge thereof, or to injure his property
so as to molest, interrupt, hinder, or impede him in the
discharge of his official duties, each of such persons shall
be fined not more than five thouand dollars, or imprison-
ed not more than six years, or both. (R. S., s. 5518.)

Clune v. U. S., 159 U. S., 590.
U. S. v. Johnson, 2 Fed. Rep., 682.

§ 22. Unlawful presence of troops at elections. —
Every officer of the Army or Navy, or other person in
the civil, military, or naval service of the United States,
who orders, brings, keeps, or has under his authority or
control any troops or armed men at any place where a

Offenses Against Rights of Citizens. 765

general or special election is held in any State, unless
such force be necessary to repel armed enemies of the
United States, shall be fined not more than five thousand
dollars and imprisoned not more than five years. (R. S.,
s. 5528.)

§ 23. Intimidation of voters by officers, etc., of Army
and Navy. — Every officer or other person in the military
or naval service of the United States who, by force,
threat, intimidation, order, advice, or otherwise, pre-
vents or attempts to prevent, any qualified voter of any
State from freely exercising the right of suffrage at any
general or special election in such State shall be fined
not more than five thousand dollars and imprisoned not
more than five years. (R. S., s. 5529.)

§ 24. Officers of Army or Navy prescribing qualifica-
tions of voters. — Every officer of the Army or Navv who
prescribes or fixes, or attempts to prescribe or fix, wheth-
er by proclamation, order, or otherwise, the qualifica-
tions of voters at any election in any State shall be pun-
ished as provided in the preceding section. (R. S., s.
5530.)

§ 25. Officers, etc., of Army or Navy interfering with
officers of election, etc. — Every officer or other person in
the military or naval service of the United States who,
by force, threat, intimidation, order, or otherwise, com-
pels, or attempts to compel, any officer holding an elec-
tion in any State to receive a vote from a person not
legally qualified to vote, or who imposes, or attempts
to impose, any regulations for conducting any general
or special election in a State different from those pre-
scribed by law, or who interferes in any manner with any
officer of an election in the discharge of his duty, shall
be punished as provided in section twenty-three. (R. S.,
s. 5531.)

§ 26. Persons disqualified from holding office; when
soldiers, etc., may vote. — Every person convicted of any
offense defined in the four preceding sections shall, in
addition to the punishment therein prescribed, be disquali-
fied from holding any office of honor, profit, or trust

766 Federal Criminal Law Procedure.

under the United States; but nothing therein shall be
construed to prevent any officer, soldier, sailor, or ma-
rine from exercising the right of suffrage in any elec-
tion district to which he may belong, if otherwise quali-
fied according to the laws of the State in which he offers
to vote. (R. S., 5532.)

CHAPTEE FOUR.

OFFENSES AGAINST THE OPERATIONS OF THE
GOVERNMENT.

§ 27. Forgery of letters patent.

28. Forging bids, public records, etc.

29. Forging deeds, powers of attorney, etc.

30. Having forged papers in possession.

31. False acknowledgments.

32. Falsely pretending to be United States officer.

33. False personation of holder of public stock.

34. False demand on fraudulent power of attorney.

35. Making or presenting false claims.

36. Embezzling arms, stores, etc.

37. Conspiracy to commit offense against the United States; all

parties liable for acts of one.

38. Delaying or defrauding captor or claimant, etc., of prize prop-

erty.

39. Bribery of United States officer.

40. Unlawfully taking or using papers relating to claims.

41 Persons interested not to act as agents of the Government.

42. Enticing desertions from the military or naval service.

43. Enticing away workmen.

44. Injuries to fortfications, harbor defenses, etc.

45. Unlawfully entering upon military reservation, fort, etc.

46. Robbery or larceny of person property of the United Stats.

47. Embezzling, stealing, etc., public property.

48. Receivers, etc., of stolen public property.

49. Timber depredations on public lands.

50. Timber, etc., depredations on Indian and other reservations.

51. Boxing, etc., timber on public lands for turpentine, etc.

52. Setting fire to timber on public lands.

53. Failing to extinguish fires.

54. Fines to be paid into school funds.

55. Trespassing on Bull Run National Forest, Oregon.

56. Breaking fence or gate inclosing reserved lands, or driving

or permitting live stock to enter upon.

57. Injuring or removing posts or momuments.

58. Interrupting surveys.

59. Agreement to prevent bids at sale of lands.

60. Injuries to United States telegraph, etc., lines.

61. Counterfeiting weather forecast.

62. Interfering with employees of Bureau of Animal Industry.

63. Forgery of certificate of entry.

64. Concealment or destruction of invoices, etc.

(767)

768 Federal Criminal Law Procedure.

65. Resisting revenue officer; rescuing or destroying seized prop-

erty, etc.

66. Falsely assuming to be a revenue officer.

67. Offering presents to revenue officer.

68. Admitting merchandise to entry for less than legal duty.

69. Securing entry of merchandise by false samples, etc.

70. False certification by consular officer.

71. Taking seized property from custody of revenue officer.

72. Forging or altering ship's papers or custom-house documents.

73. Forging military bounty-land warrants, etc.

74. Forging, etc., certificate of citizenship.

75. Engraving, etc., plate for printing, or photographing, selling,

or bringing into United States, etc., certificate of citizenship.

76. False personation, etc., in procuring naturalization.

77. Using false certificate of citizenship, or denying citizenship,

etc.

78. Using false certificate, etc., as evidence of right to vote, etc.

79. Falsely claiming citizenship.

80. Taking false oath in naturalization proceedings.

81. Provisions applicable to all courts of naturalization.

82. Shanghaiing and falsely inducing person intoxicated to go on

vessel prohibited.

83. Corporations, etc., not to contribute money for political elec-

tions, etc.

84. Hunting birds or taking their eggs from breeding grounds,

prohibited.

§ 27. Forgery of letters patent.— Whoever shall false-
ly make forge, counterfeit, or alter any letters patent
granted or purported to have been granted by the Presi-
dent of the United States; or whoever shall pass, utter,
or publish, or attempt to pass, utter, or publish as gen-
uine, any such forged, counterfeited, or falsely altered
letters patent, knowing the same to be forged, counter-
feited, or falsely altered, shall be fined not more than five
thousand dollars and imprisoned not more than ten
years. (R. S., s. 5416.)

U. S. v. Irwin, 5 McLean, 178, 26
Fed. Cas., 544.

§ 28. Forging bond, bid, public record, etc. — Who-
ever 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 mak-
ing, altering, forging, or counterfeiting, any bond, bid,
proposal, contract, guarantee, security, official bond, pub-

Offenses Against the Operation of Government. 769

lie 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 pub-
lish as true, any such false, forged, altered or counter-
feited 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 offi-
cer of the United States, any such false, forged, altered,
or couterfeited 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 dol-
lars, or imprisoned not more than ten years, or both. (R.
S., ss. 5418, 5479.)

U. S. v. Hall, 131 U. S., 50; Cross Lehman, 39 Fed. Rep., 768; U. S. v.

v. North Carolina, 132 U. S., 131; U. Albert, 45 Fed. Rep. 552; U. S. v.

S. v. Barney, 5 Blatch., 294, 24 Fed. Van Leuven, 62 Fed. Rep.. 69: Staton

Cas., 1011; U. S. v. Lawrence, 13 v. U. S., 88 Fed. Rep., 253; U. S. v.

Blatch., 211, 26 Fed. Cas., 878; U. S. Bunting, 82 Fed. Rep., 883; U. S. v.

v. Wentworth, 11 Fed. Rep., 52; U. S. McKinley, 127 Fed. Rep., 166. 168;

v. Houghton, 14 Fed. Rep., 544; U. Neff v. U. S., 165 Fed. Rep., 274; U.

S. v. Tod, 25 Fed. Rep., 815; U. S. v. S. v. Cameron, 13 N. W. Rep., 561;

Barnhart, 33 Fed. Rep., 459; U. S. v. State v. White, 71 S. W. Rep., 715;

Crecilius, 34 Fed. Rep., 30; U. S. v. 19 A. G. Op., 649.
Gowdy, 37 Fed. Rep. 332; U. S. v.

§ 29. Forging deeds, powers of attorney, etc. — Who-
ever 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 mak-
ing, altering, forging, or counterfeiting, any deed, power
of attorney, order, certificate, receipt, contract, or other
writing, for the purpose of obaining 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; or whoever
shall utter or publish as true, or cause to be uttered or
published as true, any such false, forged, altered, or
counterfeited deed, power of attorney, order, certificate,
receipt, contract, or other writing, with intent to defraud
the United States knowing the same to be false altered,
forged, or counterfeited; or whoever shall transmit to,

770 Federal Criminal Law Procedure.

or present at, or cause or procure to be transmitted to,
or presented at, any office or officer of the Government
of the United States, any deed, power of attorney, order,
certificate, receipt, contract, or other writing, in support
of, or in relation to, any account or claim, with intent to
defraud the United States, knowing the same to be false,
altered, forged, or counterfeited, shall be fined not more
than one thousand dollars and imprisoned not more than
ten years. (R. S., s. 5421.)

U. S. v. Staats, 8 How., 41; U. S. v. Rep., 490; U. S. v. Kuentsler, 74 Fed.

Barney, 5 Blatch., 294, 24 Fed. Cas., Rep., 220; U. S. v. Hansee, 79 Fed.

1011; U. S. v. Bickford, 4 Blatch., 337, Rep., 303; U. S. v. Glaesener, 81' Fed.

24 Fed. Cas., 1144; U. S. v. Kohn- Rep., 566; Staton v. U. S., 88 Fed.

stamm, 5 Blatch., 222, 26 Fed. Cas., Rep., 253; De Lemos v. U. S., 91

SI 3; U. S. v. Reese, 4 Sawver, 629, 27 Fed. Rep., 497; Kellog v. U. S., 103

Fed. Cas., 746; U. S. v. Corbin. 11 Fed. Fed. Rep., 200; U. S. v. Fout, 123 Fed.

Rep., 238; U. S. v. Albert, 45 Fed. Rep., 625; U. S. v. Swan, 131 Fed.

Rfp., 552; U. S. v. Moore, 60 Fed. Rep., 140; Sena v. U. S.. 147 Fed.

Rep., 738; U. S. v. Kessel, 62 Fed. Rep., 485; U. S. v. Spaulding, 13 N.

Rep., 59; U. S. v. Hartman, 65 Fed. \Y. Rep., 357.

§ 30. Having forged papers in possession. — Whoever,
knowingly and with intent to defraud the United States,
shall have in his possession any false, altered, forged,
or counterfeited deed, power of attorney, order, certifi-
cate, receipt, contract, or other writing, for the purpose
of enabling another to obtain from the United States, or
from any officer or agent thereof, any sum of money,
shall be fined not more than five hundred dollars, or im-
prisoned not more than five vears, or both. (R. S., s.
5422.)

§ 31. False acknowledgments. — Whoever, being an
officer authorized to administer oaths or to take and cer-
tify acknowledgments shall knowingly make any false ac-
knowledgment, certificate, or statement concerning the
appearance before him or the taking of an oath or affirma-
tion by any person with respect to any proposal, con-
tract, bond, undertaking, or other matter, submitted to,
made with, or taken on behalf of, the United States, and
concerning which an oath or affirmation is required by
law or regulation made in pursuance of law, or with re-
spect to the financial standing of any principal, surety,
or other party to any such proposal, contract, bond, un-
dertaking, or other instrument, shall be fined not more
than two thousand dollars, or imprisoned not more than
two years, or both.

Offenses Against the Operation of Government. 771

§ 32. Falsely pretending to be United States officer.
— Whoever, with intent to defraud either the United
States or any person, shall falsely assume or pretend to
be an officer or employee acting under the authority of
the United States, or any department, or any officer of
the Government thereof, and shall take upon himself to
act as such, or shall in such pretended character demand
or obtain from any person or from the United States, or
any department, or any officer of the Government there-
of, any money, paper, document, or other valuable thing,
shall be fined not more than one thousand dollars, or im-
prisoned not more than three years, or both. (R. S., s.
5448. 18 Apr., 1884, 23 Stat. L. 11, c. 26; 1 Supp., 425.)

U. S. v. Curtain, 43 Fed. Rep., 433: U. S. v. Ballard, 118 Fed. Rep., 757;
U. S. v. Bradford, 53 Fed. Rep., 542; U. S. v. Farnham, 127 Fed. Rep., 478;
U. S. v. Taylor, 108 Fed. Rep., 621; Uttel v. U. S., 169 Fed. Rep., 620.

§ 33. False personation of holder of public stocks. —
Whoever shall falsely personate any true and lawful
holder of any share or sum in the public stocks or debt
of the United States, or any person entitled to any an-
nuity, dividend', pension, prize money, wages, or other
debt due from the United States, and, under color of
such false personation, shall transfer or endeavor to
transfer such public stock or any part thereof, or shall
receive or endeavor to receive the money of such true
and lawful holder thereof, or the money of any person
really entitled to receive such annuity, dividend, pen-
sion, prize money, wages, or other debt, shall be fined
not more than five thousand dollars and imprisoned not
more than ten years. (R. S. s. 5435.)

§ 34. False demand or fraudulent power of attorney.
— Whoever shall knowingly or fraudulently demand or
endeavor to obtain any share or sum in the public stocks
of the United States, or to have any part thereof trans-
ferred, assigned, sold, or conveyed, or to have any an-
nuity, dividend, pension, prize money, wages, or other
debt due from the United States, or any part thereof,
received, or paid by virtue of any false, forged, or coun-
terfeited power of attorney, authority, or instrument, shall
be fined not more than five thousand dollars and imprison-
ed not more than ten years. (R, S., s. 5436.)

U. S. v. Logan, 105 Fed. Rep., 240,

772 Federal, Criminal Law Procedure.

§ 35. Making or presenting false claims. — Whoever
shall make or cause to be made, or present or cause
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, ficti-
tious, or fraudulent; or whoever, for the purpose of ob-
taining or aiding to obtain the payment or approval of
such claim, shall make or use, or cause 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;
or whoever shall enter into any agreement, combination,
or conspiracy to defraud the Government of the United
States, or any department or officer thereof by obtaining
or aiding to obtain the payment or. allowance of
any false or fraudulent claim; or whoever, having
charge, possession, custody, or control of any money or
other public property used or to be used in the military
or naval service, with intent to defraud the United States
or willfully to conceal such money or other property,
shall deliver or cause to be delivered, to any other person
having authority to receive the same, any amount of
such money or other property less than that for which he
received a certificate or took a receipt; or whoever, being
authorized to make or deliver any certificate, voucher,
receipt, or other paper certifying the receipt of arms,
ammunition, provisions, clothing, or other property so
used or to be used, shall make or deliver the same to any
other person without a full knowledge of the truth of
the facts stated therein, and with intent to defraud the
United States, shall be fined not more than five thousand
dollars, or imprisoned not more than five years, or both.
And whoever shall knowingly purchase or receive in
pledge for any obligation or indebtedness from any
soldier, officer, sailor, or other person called into or em-
ployed in the military or naval service, any arms, equip-
ments, ammunition, clothes military stores, or other
public property, whether furnished to the soldier, sail-
or officer, or person, under a clothing allowance or other-

Offenses Against the Operation of Government. 773

wise, such soldier, sailor, officer, or other person not
having the lawful right to pledge or sell the same, shall
be fined not more than five hundred dollars, and im-
prisoned not more than two years. (R. S., s. 5438. 30
May, 1908, 35 Stat. L., 555, c. 235.)

U. S. v. Perrin, 131 U. S., 55; In
re I,uis Oteiza v. Cortes, 136 U. S.,
330; Ingraham v. U. S. 155 U. S., 434,
49 Fed. Rep., 155; Lalone v. U. S.,
164 U. S., 255; Edington v. U. S., 164
U. S., 361; Ex parte Shaffenburg, 4
Dillon, 271, 21 Fed. Cas., 1144; U.
S. v. Bittinger, 21 Int. Rev. Rec.. 342,
24 Fed. Cas., 1150; U. S. v. Wright,
2 Cranch C. C, 296, 28 Fed. Cas. 790;
U. S. v. Ambrose, 2 Fed. Rep., 764;
U. S. v. Coggin, 3 Fed. Rep., 492; U.
S. v. Murphy, 9 Fed. Rep., 27; U. S.
v. Wentworth, 11 Fed. Rep., 52; U. S.
v. Corbin. 11 Fed. Rep., 238; U. S.
v. Griswold, 11 Fed. Rep., 807; U. S.
v. Hull, 14 Fed. Rep., 324; U. S. v.
Houghton, 14 Fed. Rep., 544; U. S. v.
Miskell, 15 Fed. Rep., 369; U. S. v.
Daubner, 17 Fed. Rep., 793; U. S. v.
Russell, 19 Fed. Rep., 591; U. S. v.
Griswold, 24 Fed. Rep., 361; U. S. v.
Frisbie, 28 Fed. Rep., 808; U. S. v.
Rhodes, 30 Fed. Rep., 431; U. S. v.

Griswold 30 Fed. Rep., 604; U. S. v.
Griswold, 30 Fed. Rep., 762; U. S. v.
Reichert, 32 Fed. Rep., 142; U. S.
v. Jones, 32 Fed. Rep., 482; U. S. v.
Route, 33 Fed. Rep., 246; U. S. v.
Gowdy, 37 Fed. Rep., 332; U. S. v.
Wallace, 40 Fed. Rep., 144; U. S. v.
Newton, 48 Fed. Rep., 218; U. S. v.
Strobach, 48 Fed. Rep., 902; U. S.
v. Adler, 49 Fed. Rep., 733; U. S. v.
Van Eeuven, 62 Fed. Rep., 62; U. S.
v. Hartman, 65 Fed. Rep., 490; Rhodes
v. U. S., 79 Fed. Rep., 740; Dimmick
v. U. S., 116 Fed. Rep., 825; U. S. v.
Lair, 118 Fed. Rep., 98; Pooler v. G.
S., 127 Fed. Rep., 509; Bridgeman v.
U. S., 140 Fed. Rep., 577; U. S. v.
Hart, 146 Fed. Rep., 202; U. S. v.
Michael, 153 Fed. Rep., 609; Greene
v. U. S., 154 Fed. Rep., 401; U. S.
v. Koplik, 155 Fed. Rep., 919; U. S.
v. Smith, 156 Fed. Rep., 859; In re
Peraltareavis, 41 Pac. Rep., 538; 18 A.
G. Op., 72.

§ 36. Embezzling arms, stores, etc. — Whoever shall
seal, embezzel, or knowingly apply to his own use, or
unlawfully sell, convey, or dispose of, any ordinance,
arms, ammunition, clothing, subsistence, stores, money,
or other property of the United States, furnished or to
be used for the military or naval service, shall be punish-
ed as prescribed in the preceding section. (R. S., s. 5439.)

Johnson v. Sayre, 158 U. S., 109; U. 1184; U. S. v. Murphy, 9 Fed. Rep.,
S. v. Bogart, 3 Ben., 257, 24 Fed. Cas., 26.

§ 37. Conspiracy to commit offense against the United
States; all liable for acts of one. — If two or more persons
conspire either to commit any offense against the United
States, or to defraud the United States in any manner
or for any purpose, and one or more of such parties do
any act to effect the object of the conspiracy, each of the
parties to such conspiracy shall be fined not more than
ten thousand dollars, or imprisoned not more than two
years, or both. (R. S., s. 5440. 17 May, 1879, 21 Stat. L.,
4, c. 8; 1 Supp., 264.)

Ex parte Carstendick, 93 U. S., 396;
U. S. v. Hirsch, 100 U. S., 33; U. S. v.
Chouteau, 102 U. S. 603; U. S. v. Brit-
ton, 108 U. S., 192; Mackin v. U. S.,
117 U. S., 348; U. S. v. Hess, 124 U.
S., 483; Re Coy, 31 Fed. Rep., 794, 127
U. S., 731; U. S. v. Perrin, 131 U. S..

U. S., 148 U. S., 197; Ex parte Eenon
150 U. S., 393; Dealy v. U. S., 152 U.
S., 539; Vannon v. U. S., 156 U. S., 464;
Stokes v. U. S., 157 U. S., 187; Clune v.
U. S., 159 U. S., 590; France v. U. S.,
164 U. S., 676; Williamson v. U. S., 207
U. S., 425; U. S. v. Keitel, 211 U. S.

55; U. S. v. Barber, 140 U. S., 177, U. 370; U. S. v. Biggs, 211 U. S., 507;
S. v. Logan, 144 U. S., 263, Pettibone v. Crawford v. U. S., 212 U. S., 183; Re

774

Federal Criminal Law Procedure.

Callicot, 8 Int. Rev. Rec, 169, 4 Fed.
Cas., 1075; U. S., v. Bayer, 4 Dillon, 407,.
24 Fed. Cas. 1046; U. S. v. Boyden, 1
Lowell, 266, 24 Fed. Cas., 1213; U. S.
v. Crafton, 4 Dillon, 145, 25 Fed. Cas.,
681, U. S. v. DeGrieff, 16 Blatch., 20, 25
Fed. Cas., 799; U. S. v. Denee, 3 Woods,
47, 25 Fed. Cas., 818; U. S. v. Donau,
11 Blatch, 168, 25 Fed. Cas., 890; U. S.
v. Goldberg, 7 Biss., 175, 25 Fed. Cas.,
1342; U. S. v. Hammond, 2 Woods, 197,
26 Fed. Cas., 99; U. S. v. McDonald, 3
Dillon, 543, 26 Fed. Cas., 1085; U. S. v.
McKee, 4 Dillon, 128, 26 Fed. Cas., -1116;
U. S. v. Martin, 4 Cliff, 156, 26 Fed.
Cas., 1175; U. S. v. Bindskopf, 6 Biss,
259, 27 Fed. Cas., 813; U. S. v. Nunne-
macher, 7 Biss., Ill, 27 Fed. Cas., 197;
U. S. v. Smith, 2 Bond, 323, 27 Fed. Cas..
1144; U. S. v. Stevens, 2 Haskell, 164, 21
Fed. Cas., 1312; U. S. v. Walsh, 5 Dillon,
58, 28 Fed. Cas., 394; U. S. v. Sacia, 2
Fed. Rep., 754; Mussel Slough case, 5
Fed. Rep., 680; U. S. v. Sanche, 7 Fed.
Rep., 715; U. S. v. Burgess, 9 Fed. Rep.,
896; U. S. v. Watson, 17 Fed. Rep.. 145;
U. S. v. Gordon, 22 Fed. Rep., 250; U. S.
v. Payne, 22 Fed. Rep., 426; U. S. v.
Kane, 23 Fed. Rep., 748; U. S. v. John-
son, 26 Fed. Rep., 682: Re Wolf, 27 Fed.
Rep., 606; U. S. v. Frisbie, 28 Fed. Rep.,
808; U. S. v. Thompson, 29 Fed. Rep., 86;
U. S. v. Wooten, 29 Fed. Rep.. 702; U.
S. v. Thompson, 31 Fed. Rep., 331; U. S.
v. Reichert, 32 Fed. Rep., 142; U. S. v.
Owen, 32 Fed. Rep., 534; U. S. v. Jo-
hannesen. 35 Fed. Rep., 411; U. S. v.
Milner, 36 Fed. Rep., 890; U. S. v. Smith,
40 Fed. Rep., 755; U. S. v. Stevens, 44
Fed. Rep., 132; U. S. v. Gardner, 42
Fed. Rep., 829; U. S. v. Lancaster, 44
Fed. Rep., 896; Re Newton, 48 Fed. Rep.,
218; U. S. v. Adler, 49 Fed. Rep., 736;
U. S. v. Newton, 52 Fed. Rep., 275;
Toledo, &c, R. Co., v. Penn. Co., 54 Fed.
Rep., 730; Waterhouse v. Conner, 55 Fed.
Rep., 150; U. S. v. Howell, 56 Fed. Rep.,
21; In re Benson, 58 Fed. Rep., 962: U.
S. v. Wilson, 60 Fed. Rep., 890; U. S. v.
Van Leuven, 62 Fed. Rep., 62: Thomas
v. Ry. Co., 62 Fed. Rep., 803; Re Phelan,
62 Fed. Rep., 803; Charge to Grand Jury.
62 Fed. Rep., 828, 840; U. S. v. Debs. 63
Fed. Rep.. 436; U. S. v. Barrett, 65 Fed.
Rep., 62; U. S. v. Cassidv, 67 Fed. Rep..
698; U. S. v. Benson, 70 Fed. Rep.. 591;
U. S. v. McCord, 72 Fed. Rep., 159; U.

S. v. Bunting, 82 Fed. Rep., 883; U. S. v.
Taffe, 86 Fed. Rep., 113; Berkowitz v.
U. S., 93 Fed. Rep., 452; U. S. v.
Sweeney, 95 Fed. Rep., 434; Reilley v.
U. S. 106 Fed. Rep., 896; Gantt v. U. S.,
108, Fed. Rep., 61; Wright v. U. S. 108
Fed. Rep., 805; U. S. v. Greene, 113 Fed.
Rep. 683; 115 Fed. Rep., 343; McKnight
v. U. S., 115 Fed. Rep., 972; U. S. v.
Teuschel, 116 Fed. Rep., 642; U. S. v.
Clark, 121 Fed. Rep., 190; U. S. v. Cur-
ley, 122 Fed. Rep., 316; U. S. v. Marx,
122 Fed. Rep., 964; U. S. v. McKinley,
126 Fed. Rep., 242; U. S. v. Dietrich,

126 Fed. Rep., 664; Lehman v. U. S..

127 Fed. Rep., 42; Conrad v. U. S., 127
Fed. Rep., 798; Radford v. U. S., 129
Fed. Rep., 49; Curley v. U. S., 130 Fed.
Rep., 1; Scott v. U. S., 130 Fed. Rep.,
429; U. S. v. Grunberg, 131 Fed. Rep..
137; U. S. v. Radford, 131 Fed. Rep.,
378; U. S. v. Hyde, 132 Fed. Rep.. 545;
Olson v. U. S., 133 Fed. Rep.. 849;
M'Gregor v. U. S., 134 Fed. Rep., 187;
U. S. v. Stone, 135 Fed. Rep., 392; U. S.
v. Scott, 139 Fed. Rep., 697; U. S. v.
Mitchell, 141 Fed. Rep., 666; U. S. v.
Cohn, 142 Fed. Rep., 983; Wilder v. U.
S.. 143 Fed. Rep., 433; U. S. v. Thomas.
145 Fed. Rep., 74; Grumberg v. U. S.,
145 Fed. Rep., 81; U. S. v. Greene, 146
Fed. Rep., 803; Robens v. U. S. 146 Fed.
Rep., 978; U. S. v. Bradford, 148 Fed.
Rep., 413; U. S. v. Brace, 149 Fed. Rep.,
874; U. S. v. Richards, 149 Fed. Rep.,
443; U. S. v. Burkett, 150 Fed. Rep.,
208; Bradford v. U. S., 152 Fed. Rep.,
617; Stearns v. U. S., 152 U. S., 900;
U. S. v. Peeke, 153 Fed. Rep., 166;
Greene v. U. S.. 154 Fed. Rep., 401;
Ware v. U. S., 154 Fed. Rep., 577;
Thomas v. U. S., 156 Fed. Rep., 897;
U. S. v. Biggs, 157 Fed. Rep., 264; U. S.
v. Keitel, 157 Fed. Rep., 396; \J. S. v.
Robbins, 157 Fed. Rep.. 999; Tohnson v.
U. S., 158 Fed. Rep., 69; U. S. v. Lona-
baugh, 158 Fed. Rep., 314; U. S. v.
Black, 160 Fed. Rep., 431; U. S. v. Corn-
stock, 162 Fed. Rep., 415: Jones v. U. S..
162 Fed. Rep., 417; U. S. v. Wells, 163
Fed. Rep., 313: U. S. v. Haas, 163 Fed.
Rep., 908; U. S. v. Clark, 164 Fed. Rep.,
75; U. S. v. Grodson. 164 Fed. Rep.. 157;
LT. S. v. Stamatonoulos. 164 Fed. Rep.,
524: Scott v. U. S., 165 Fed. Rep., 172;
14 A. G. Op., 43.

§ 38. Delaying or defrauding captor or claimant, etc.,
of prize property. — Whoever shall willfully do, or aid
or advise in the doing, of any act relating to the bring-
ing in, custody, preservation, sale, or other disposition
of any property captured as prize, or relating to and docu-
ments or papers connected with the property, or to any
deposition or other document or paper connected with
the proceedings, with intent to defraud, delay, or injure
the United States or any captor or claimant of such prop-
erty, shall be fined not more than ten thousand dollars,
or imprisoned not more than five years, or both. (R.
S., s. 5441.)

Offenses Against the Operation of Goveenment. 775

§ 39. Bribery of United States officer. — Whoever
shall promise, offer, or give, or cause or procure to be
promised, offered, or given, any money or other thing
of value, or shall make or tender any contract, under-
taking, obligation, gratuity, or security for the payment
of money, or for the delivery or conveyance of anything
of value, to any officer of the United States, or to any
person acting for or on behalf of the United States in
any official function, under or by authority of any de-
partment or office of the Government thereof, or to any
officer or person acting for or on behalf of either House
of Congress, or of any committee of either House, or
both Houses thereof, with intent to influence his decision
or action on any question, matter, cause, or proceeding
which may at any time be pending, or which may by
law be brought before him in his official capacity, or in
his place of trust or profit, or with intent to influence
liim to commit or aid in committing, or to collude in,
or allow, any fraud, or make opportunity for the com-
mission of any fraud, on the United States, or to induce
him to do or omit to do any act in violation of his law-
ful duty, shall be fined not more than three times the
amount of money or value of the thing so offered, pro-
mised, given, made, or tendered, or caused or procured
to be so offered, promised, given, made, or tendered, and
imprisoned not more than three years. (E. S., s. 5451.)

Rep., 145; U. S. v. Boyer, 85 Fed. Rep..
425; U. S. v. Ingham, 97 Fed. Rep., 935;
U. S. v. Green, 136 Fed. Rep.. 618;
Vernon v. U. S., 146 Fed. Rep., 121.

U. S. v. Worrall, 2 Dall., 388; In re
Paliser, 136 U. S., 257; U. S. v. Gibson,
47 Fed. Rep., 833; U. S. v. Kissel, 62
Fed. Rep., 57; U. S. v. Van Leuven, 62
Fed. Rep., 62; In re Yee Gee, 83 Fed.

§ 40. Unlawfully taking or using papers relating to
claims. — Whoever shall take and carry away, without
authority from the United States, from the place where
it has been filed, lodged, or deposited, or where it may
for the time being actually be kept by authority of the
United States, any certificate, affidavit, deposition, written
statement of facts, power of attorney, receipt, voucher,
assignment, or other document, record, file, or paper,
prepared, fitted, or intended to be used or presented in
order to procure the payment of money from or by the
United States, or any officer or agent thereof, or the allow-
ance or payment of the whole or any part of any claim,

776 Federal Criminal Law Procedure.

account, or demand against the United States, whether
the same has or has not already been so used or present-
ed, and whether such claim, account, or demand, or any
part thereof, has or has not already been allowed or
paid; or whoever shall present, use, or attempt to use,
any such document, record, file, or paper so taken and
carried away, in order to procure the payment of any
money from or by the United States, or any officer or
agent thereof, or the allowance or payment of the whole
or any part of any claim, account, or demand against the
United States, shall be fined not more than five thousand
dollars, or imprisoned not more than ten years, or both.
(E. S., s. 5454.)

§ 41. Persons interested not to act as agents of the
Government. — No officer or agent of any corporation,
joint stock company, or association, and no member or
agent of any firm, or person directly or indirectly inter-
ested in the pecuniary profits or contracts of such cor-
poration, joint stock company, association, or firm, shall
be employed or shall act as an officer or agent of the
United States for the transaction of business with such
corporation, joint stock company, association, or firm.
Whoever shall violate the provision of this section shall
be fined not more than two thousand dollars and im-
prisoned not more than two years. (R. S., s. 1783.)

§ 42. Enticing desertions from the military or naval
service. — Whoever shall entice or procure, or attempt
or endeavor to entice or procure, any soldier in the mili-
tary service, or any seaman or other person in the naval
service of the United States, or who has been recruited
for such service, to desert therefrom, or shall aid any
such soldier, seaman, or other person in deserting or in
attempting to desert from such service; or whoever shall
harbor, conceal, protect, or assist any such soldier, sea-
man, or other person who may have deserted from such
service, knowing him to have deserted therefrom, or
shall refuse to give up and deliver such soldier, seaman,
or other person on the demand of any officer authorized
to receive him, shall be imprisoned not more than three

Offenses Against the Operation of Government. 777

years and lined not more than two thousand dollars. (R.
S., ss. 1553, 5455. 27 Feb., 1877, 19 Stat. L., 253, c. 69.)

Kurtz v. Moffitt, IIS U. S. 487; U.
S. v. Clark, 25 Fed. Cas., 452.

§ 43. Enticing away workmen. — Whoever shall pro-
cure or entice any artificer or workman retained or em-
ployed in any arsenal or armory, to depart from the same
during the continuance of his engagement, or to avoid
or break his contract with the United States; or who-
ever, after due notice of the engagement of such work-
man or artificer, during the continuance of such engage-
ment, shall retain, hire, or in anywise employ, harbor,
or conceal such artificer or workman, shall be fined not
more than fifty dollars, or imprisoned not more than three
months, or both. (R. S., s. 1668.)

§ 44 Injuries to fortifications, harbor defenses, etc.
— Whoever shall willfully trespass upon, injure, or des-
troy any of the works or property or material of any
submarine mine or torpedo, or fortification or harbor-
defense system owned or constructed or in process of
construction by the United States, or shall willfully inter-
fere with the operation or use of any such submarine
mine, torpedo, fortification, or harbor-defense system,
shall be fined not more than five thousand dollars, or im-
prisoned not more than five years, or both. (7 July,
1898, 30 Stat. L., 717, c. 576, s. 1; 2 Supp. 885.)

§ 45. Unlawfully entering upon military reservation,
fort, etc. — Whoever shall go upon any military reserva-
tion, army post, fort, or arsenal, for any purpose pro-
hibited by law or military regulation made in pursuance
of law, or whoever shall reenter or ue found within any
such reservation, post, fort, or arsenal, after having been
removed therefrom or ordered not to reenter by any of-
ficer or person in command or charge thereof, shall be
fined not more than five hundred dollars, or imprisoned
not more than six months, or both.

§ 46. Robbery or larceny of personal property of the
United States. — Whoever shall rob another of any kind
or description of personal property belonging to the
United States, or shall feloniously take and carry away
the same, shall be fined not more than five thousand dol-

778 Federal Criminal Law Procedure.

lars, or imprisoned not more than ten years, or both. (R.
S., s. 5456.)

Jolly v. U. S., 170 U. S., 402; U. S.
v. Jones, 69 Fed. Rep., 973; Keller v.
U. S., 168 Fed. Rep., 697.

§. 47. Embezzling, stealing, etc., public property. —
Whoever shall embezzle, steal, or purloin any money,
property, record, voucher, or valuable thing whatever,
of the moneys, goods, chattels, records, or property of the
United States, shall be fined not more than five thousand
dollars, or imprisoned not more than five years or both.
(3 Mar., 1875, 18 Stat. L., 479, c. 144, s. 1; 1 Supp., 88.)

Moore v. U. S., 160 U. S., 268; Faust 764; U. S. v. Borneman, 26 Fed. Rep.,

v. U. S., 163 U. S. 452; U. S. v. Gil- 257; U. S. v. Jones, 69 Fed. Rep., 973;

bert, 17 Int. Rev. Rec., 54, 25 Fed. Cas., Dimmick v. U. S., 135 Fed. Rep., 25/.
1318; U. S. v. DeGroat, 30 Fed. Rep.,

§ 48. Receivers, etc., of stolen public property. — Who-
ever shall receive, conceal, or aid in concealing, or shall
have or retain in his possession with intent to convert
to his own use or gain, any money, property, record,
voucher, or valuable thing whatever, of the moneys,
goods, chattels, records, or property of the United States,
which has theretofore been embezzled, stolden, or pur-
loined by any other person, knowing the same to have
been so embezzled, stolen, or purloined, shall be fined not
more than five thousand dollars, or imprisoned not more
than five years or both; and such person may be tried
either before or after the conviction of the principal of-
fender. (3 Mar., 1875, 18 Stat. L., 479, c. 144, s. 2; 1
Supp., 88.)

Kerby v. U. S., 174 U. S., 47; U. S. 796; U. S. v. Montgomery, 3 Sawy., 544,
v. De Bare, 6 Biss, 358, 25 Fed. Cas., 26 Fed. Cas., 1296.

§ 49. Timber depredations on public lands. — Who-
ever shall cut, or cause or procure to be cut, or shall
wantonly destroy, or cause to be wantonly destroyed, any
timber growing on the public lands of the United States;
or whoever shall remove, or cause to be removed, any
timber from said public lands, with intent to export or
to dispose of the same; or whoever, being the owner,
master, or consignee of any vessel, or the owner, director,
or agent of any railroad, shall knowingly transport any
timber so cut or removed from said lands, or lumber
manufactured therefrom, shall be fined not more than
one thousand dollars, or imprisoned not more than one

Offenses Against the Operation of Government. 779

year, or both. Nothing in this section shall prevent any
miner or agriculturalist from clearing his land in the
ordinary working of his mining claim, or in the pre-
paration of his farm for tillage, or from taking the timber
necessary to support his improvements, or the taking of
timber for the use of the United States. And nothing
in this section shall interfere with or take away any
right or privilege under any existing law of the United
States to cut or remove timber from any public land.
(3 June, 1878, 20 Stat. L., 90, c. 151, s. 4; 1 Supp., 168.
4 Aug., 1892, 27 Stat. L., 348, c. 375, s. 2; 2 Supp., 65.)

Railroad Co. v. U. S., 40 Fed. Rep., 419;
U. S. v. Garretson, 42 Fed. Rep., 22; U.
S. v. Kankapot, 43 Fed. Rep., 64; U. S.
v. Reder, 69 Fed. Rep., 965; U. S. v.
Hacker, 73 Fed. Rep., 292; Pine River
L. Co., v. Improvement Co., 89 Fed. Rep.,
907; Grubbs v. U. S., 105 Fed. Rep.,
314; Bryant v. U. S., 105 Fed. Rep., 941;
Teller v. IT. S.. 113 Fed. Rep., 273;
Morgan v. U. S., 148 Fed. Rep., 189;
Nickell v. U. S., 167 Fed. Rep., 741;
Robnett v. U. S., 169 Fed. Rep., 778; 18
A. G. Op., 555.

Railroad Co. v. U. S., 149 U. S., 733
Stone v. U. S., 159 U. S., 491
U. S. v. Nelson, 27 Fed. Cas., 86
The Timber Cases, 11 Fed. Rep., 81
U. S. v. Smith, 11 Fed. Rep., 487; U
S. v. Stores, 14 Fed. Rep., 824; U. S
v. Yoder, 18 Fed. Rep., 372; U. S. v
Williams, 18 Fed. Rep., 475; U. S. v
Lane, 19 Fed. Rep., 910; U. S. v. Ben
jamin, 21 Fed. Rep., 285; U. S. v
T.eatherbury. 27 Fed. Rep., 606; 32 Fed
Rep., 780; U. S. v. Ball, 31 Fed. Rep.
667; U. S. v. Murphy, 32 Fed. Rep., 376
U. S. v. Edwards, 38 Fed. Rep., 812

§ 50. Timber, etc., depredations on Indian and other
reservations. — Whoever shall unlawfully cut, or aid in
unlawfully cutting, or shall wantonly injure or destroy,
or procure to be wantonly injured or destroyed, any tree,
growing, standing, or being upon any land of the United
States which, in pursuance of law, has been reserved or
purchased by the United States for any public use, or
upon any Indian reservation or lands belonging to or
occupied by any tribe of Indians under the authority of
the United States, or any Indian allotment while the
title to the same shall be held in trust by the Government,
or while the same shall remain inalienable by the allottee
without the consent of the United States, shall be fined
not more than five hundred dollars, or imprisoned not
more than one year, or both. (R. S., s. 5388. 3 Mar., 1875,
18 Stat. L., 381, c. 451, s. 1; Supp., 91. 4 June, 1888, 25
'Stat. v. L., 166, c. 340; 1 Supp., 588. 25 June, 1910, 36
Stat. L., 857, c. 431, s. 6.)

§ 51. Boxing, etc., timber on public lands for turpen-
tine, etc. — Whoever shall cut, chip, chop, or box any tree
upon any lands belonging to the United States, or upon
any lands covered by or embraced in any unperfected

780 Federal Criminal Law Procedure.

settlement, application, filing, entry, selection, or loca-
tion, made under any law of the United States, for the
purpose of obtaining from such tree any pitch, turpen-
tine, or other substance, or shall knowingly encourage,
cause, procure, or aid in the cutting, chipping, chopping,
or boxing of any such tree, or shall buy, trade for, or in
any manner acquire any pitch, turpentine, or other sub-
stance, or any article or commodity made from any such
pitch turpentine, or other substance, when he has knowl-
edge that the same has been so unlawfully obtained from
such trees, shall be fined not more than five hundred
dollars, or imprisoned not more than one year, or both.
(4 June, 1906, 34 Stat. L., 208, c. 2571.)

§ 52. Setting fire to timber on public lands. — Who-
ever shall wilfully set on fire, or cause to be set on fire,
any timber, underbrush, or grass upon the public do-
main, or shall leave or suffer fire to burn unattended
near any timber or other inflammable material, shall be
fined not more than five thousand dollars, or imprisoned
not more than two years, or both. ( 24 Feb., 1897, 29
Stat. L., 594, c. 313, s. 1; 2 Supp., 562, 5 Mav, 1900, 31
Stat. L., 169 c. 349; 2 Supp., 1163.)

§ 53. Failing to extinguish fires. — Whoever shall build
a fire in or near any forest, timber, or other inflammable
material upon the public domain, or upon any Indian
reservation, or lands belonging to or occupied by any
tribe of Indians under the authority of the United States,
or upon any Indian allotment while the title to the
same shall be held in trust by the Government, or while
the same shall remain inalienable by the allottee without
the consent of the United States, shall, before leaving
said fire, totally extinguish the same; and whoever shall
fail to do so shall be fined not more than one thousand
dollars, or imprisoned not more than one year, or both.
(24 Feb., 1897, 29 Stat. L., 594, c. 313, s. 2; 2 Supp., 562.
5 May, 1900, 31 Stat. L., 170, c. 349, s. 2; 2 Supp., 1163.
25 June, 1910, 36 Stat. L., 857, c. 431, s. 6.)

§ 54. Fines to be paid into school fund. — In all cases
arising under the two preceding sections the fines col-
lected shall be paid into the public school fund of the
county in which the lands where the offense was commit-

Offenses Against the Operation of Goveenment. 781

ted are situated. (24 Feb., 1897, 29 Stat. L., 594, c. 313,
s. 3; 2 Supp., 562, 5 May, 1900, 31 Stat. L., 170, c. 349, s.
3, 2 Supp., 1163.)

§ 55. Trespassing on Bull Run National Forest, Ore-
gon.— Whoever, except forest rangers, and other persons
employed by the United States to protect the forest,
federal and state officers in the discharge of their duties,
and the employees of the water board of the city of Port-
land, State of Oregon, shall knowingly trespass upon any
part of the reserve known as Bull Run National Forest,
in the Cascade Mountains, in the State of Oregon, or shall
enter thereon for the purpose of grazing stock, or shall
engage in grazing stock thereon, or shall permit stock
of any kind to graze thereon, shall be fined not more than
five hundred dollars, or imprisoned not more than six
months or both. (28 Apr., 1904, 33 Stat. L., 526, c. 1774.)

§ 56. Breaking fence or gate inclosing reserved lands,
or driving or permitting live stock to enter upon. — Who-
ever shall knowingly and unlawfully break, open, or
destroy any gate, fence, hedge, or wall inclosing any lands
of the United States which, in pursuance of any law, have
been reserved or purchased by the United States for any
public use; or whoever shall drive any cattle, horses,
hogs, or other live stock upon any such lands for the
purpose of destroying the grass or trees on said lands,
or where they may destroy the said grass or trees; or
whoever shall knowingly permit his cattle, horses, hogs,
or other live stock, to enter through any such inclosure
upon any such lands of the United States, where such
cattle, horses, hogs, or other live stock may or can destroy
the grass or trees or other property of the United States
on the said lands shall be fined not more than five hun-
dred dollars or imprisoned not more than one year, or
both: Provided, That nothing in this section shall be con-
strued to apply to unreserved public lands. (3 Mar.,
1875, 18 Stat. L., 481, c. 151, ss. 2, 3; 1 Supp., 91.)

§ 57. Injuring or removing posts or monuments. —
Whoever shall willfully destroy, deface, change, or re-
move to another place any section corner, quarter-section
corner, or meander post, on any Government line of sur-
vey, or shall willfully cut down any witness tree or any

782 Federal Criminal Law Procedure.

tree blazed to bark the line of a Government survey, or
shall willfully deface change, or remove any monument
or bench mark of any Government survey, shall be fined
not more than two hundred and fifty dollars, or impris-
oned not more than six months, or both. (10 June, 1896,
29 Stat. L., 343, c. 398; 2 Supp., 516.)

§ 58. Interrupting surveys. — Whoever in any manner,
by threats or force, shall interrupt, hinder, or prevent
the surveying of the public lands, or of any private land
claim which has been or may be confirmed by the United
States, by the persons authorized to survey the same, in
conformity with the instructions of the Commissioner of
the General Land Office, shall be fined not more than three
thousand dollars and imprisoned not more than three
years. (R. S., s. 2412.)

§ 59. Agreement to prevent bids at sale of lands. —
Whoever, before or at the time of the public sale of any
of the lands of the United States, shall bargain, contract,
or agree, or attempt to bargain, contract, or agree with
any other person, that the last-named person shall not
bid upon or purchase the land so offered for sale, or
any parcel thereof; or whoever by intimidation, combina-
tion, or unfair management shall hinder or prevent, or
attempt to hinder or prevent, any person from bidding
upon or purchasing any tract of land so offered for sale,
shall be fined not more than one thousand dollars, or im-
prisoned not more than two years, or both. (R. S., s.
2373.)

§ 60. Injuries to United States telegraph, etc., lines.
— Whoever shall willfully or or maliciously injure or
destroy any of the works, property, or material of any
telegraph, telephone, or cable line, or system, operated
or controlled by the United States, whether constructed,
or in process of construction, or shall willfully or malici-
ously interfere in any way with the working or use of
any such line, or system, or shall willfully or malicious-
ly obstruct, hinder, or delay the transmission of any com-
munication over any such line, or system, shall be fined
not more than one thousand dollars, or imprisoned not
more than three years, or both. (23 June, 1874, 18
Stat. L., 250 c. 461; 1 Supp., 46.)

Offenses Against the Operation of Government. 783

§ 61. Counterfeiting weather forecast. — Whoever shall
knowingly issue or publish any counterfeit weather fore-
cast or warning of weather conditions falsely represent-
ing such forecast or warning to have been issued or
published by the Weather Bureau, United States Signal
Service, or other branch of the Government service, shall
be fined not more than five hundred dollars, or impris-
oned not more than ninety days, or both. (8 Aug., 1894,
28 Stat. L., 274, c. 238; 2 Supp., 233. 2 Mar., 1895, 28
Stat. L., 737, c. 169; 2 Supp., 406. 25 Apr., 1896, 29 Stat.
L., 108, c. 140; 2 Supp., 459.)

§ 62. Interfering with employees of Bureau of Animal
Industry; penalty. — Whoever shall forcibly assault, re-
sist, oppose, prevent, impede, or interfere with any of-
ficer or employee of the Bureau of Animal Industry of
the Department of Agriculture in the execution of his
duties, or on account of the execution of his duties, shall
be fined not more than one thousand dollars, or impris-
oned not more than one year, or both; and whoever shall
use any deadly or dangerous weapon in resisting any of-
ficer or employee of the Bureau of Animal Industry of the
Department of Agriculture in the execution of his duties,
with intent to commit a bodily injury upon him or to
deter or prevent him from discharging his duties, or on
account of the performance of his duties, shall be fined
not more than one thousand dolars, or imprisoned not
more than five years, or both. (3 Mar., 1905, 33 Stat.
L., 1265, c. 1496, s. 5.)

§ 63. Forgery of certificate of entry. — Whoever shall
forge, counterfeit, or falsely alter any certificate of entry
made or required to be made in pursuance of law by
an officer of the customs, or shall use any such forged,
counterfeited, or falsely altered certificate, knowing the
same to be forged, counterfeited, or falsely altered, shall
be fined not more than ten thousand dollars and impris-
oned not more than three years. (R. S., s. 5417.)

§ 64. Concealment of destruction or invoices, etc. —

Whoever shall willfully conceal or destroy any invoice,

,book, or paper relating to any merchandise liable to

.duty, which has been or may be imported into the United

States from any foreign port or country, after an in-

784 Federal Criminal Law Procedure.

spection thereof has been demanded by the collector of
any collection district, or shall at any time conceal or dis-
troy any such invoice, book, or paper for the purpose of
suppressing any evidence of fraud therein contained,
shall be fined not more than five thousand dollars, or im-
prisoned not more than two years, or both. (R. S., s.
5443.)

§ 65. Resisting revenue officers; rescuing or destroy-
ing seized property, etc. — Whoever shall forcibly assault,
resist, oppose, prevent, impede, or interfere with any of-
ficer of the customs or of the internal revenue or his
deputy, or any person assisting him in the execution of
his duties, or any person authorized to make searches
and seizures, in the execution of his duty, or shall res-
cue, attempt to rescue, or cause to be rescued, any prop-
erty which has been seized by any person so authorized;
or whoever before, at, or after such seizure, in order to
prevent the seizure or securing of any goods, wares,
or merchandise by any person so authorized, shall
stave, break, throw overboard, destroy, or remove
the same, shall be fined not more than two thou-
sand dollars, or imprisoned not more than one year,
or both; and whoever shall use any deadly or
dangerous weapon in resisting any person authorized
to make searches or seizures, in the execution of his duty,
with intent to commit a bodily injury upon him or to
deter or prevent him from discharging his duty, shall
be imprisoned not more than ten years. (R. S., s. 5447.)

5 66. Falsely assuming to be a revenue officer. — Who-
ever shall falsely represent himself to be a revenue officer,
and, in such assumed character, demand or receive any
money or other article of value from any person for any
duty or tax due to the United States, or for any violation
or pretended violation of any revenue law of the United
States, shall be fined not more than five hundred dollars
and imprisoned not more than two years. (R. S., s. 5448.
U. S. v. Brown, 119 Fed. Rep., 482, U. S. v. Farnham,
127 Fed.' Rep., 478.)

§ 67. Offering presents to revenue officers. — Whoever,
being engaged in the importation into the United States
of any goods, wares, or merchandise, or being interested

Offenses Against the Operation of Government. 785

as principal, clerk, or agent in the entry of any goods,
wares, or merchandise, shall at any time make, or offer
to make, to any officer of the revenue, any gratutity or
present of money or other thing of value, shall be fined
not more than five thousand dollars, or imprisoned not
more than two years, or both. (R. S., s. 5452.)

§ 68. Admitting merchandise to entry for less than
legal duty. — Whoever, being an officer of the revenue,
shall, by any means whatever, knowingly admit or aid
in admitting to entry, any goods, wares, or merchandise,
upon payment of less than the amount of duty legally
due thereon, shall be removed from office and fined not
more than five thousand dollars, or imprisoned not more
than two years, or both. (E. S., s. 5444.)

U. S. v. Mescall, 164 Fed. Rep., 584.

§ 69. Securing entry of merchandise by false
samples, etc. — Whoever, by any means whatever, shall
knowingly effect, or aid in effecting, any entry of goods,
wares, or merchandise, at less than the true weight or
measure thereof, or upon a false classification thereof
as to quality or value, or by the payment of less than the
amount of duty legally due thereon, shall be fined not
more than five thousand dollars, or imprisoned not more
than two years, or both. (R. S., s. 5445.)

U. S. v. Rosenthal, 126 Fed. Rep., 766.

§ 70. False certification by consular officers. — Who-
ever, being a consul, or vice-consul, or other person em-
ployed in the consular service of the United States, shall
knowingly certify falsely to any invoice, or other paper,
to which his certificate is by law authorized or required,
shall be fined not more than ten thousand dollars and im-
prisoned not more than three years. (R. S., s. 5442.)

§ 71. Taking seized property from custody of revenue
officer. — Whoever shall dispossess or rescue, or attempt
to dispossess or rescue, any property taken or detained
by any officer or other person under the authority of any
revenue law of the United States, or shall aid or assist
therein, shall be fined not more than three hundred dol-
lars and imprisoned not more than one year. (R. S., s.
5446.)

786 Federal Criminal Law Procedure.

§ 72. Forging or altering ship's papers or custom-
house documents. — Whoever shall falsely make, forge,
counterfeit, or alter any instrument in imitation of, or
purporting to be, an abstract or official copy or certificate
of the recording, registry or enrollment of any vessel,
in the office of any collector of the customs, or a license
to any vessel for carrying on the coasting trade or fish-
eries of the United States, or a certificate of ownership,
pass, passport, sea letter, or clearance, granted for any
vessel, under the authority of the United States, or a
permit, debenture, or other official document granted
by any collector or other officer of the customs by virtue
of his office; or whoever shall utter, publish, or pass, or
attempt to utter, publish, or pass, as true, any such false,
forged, counterfeited, or falsely altered instrument, ad-
stract, official copy, certificate, license, pass, passport, sea
letter, clearance, permit, debenture or other official docu-
ment herein specified, knowing the same to be false, forged,
counterfeited, or falsely altered, with an intent to de-
fraud, shall be fined not more than one thousand dollars
and imprisoned not more than three years. (R. S., s.
5423.)

§ 73. Forging military bounty-land warrant, etc. —
Whoever shall falsely make, alter, forge, or counter-
feit any military bounty-land warrant, or military bounty-
land warrant certificate, issued or purporting to have
been issued by the Commissioner of Pensions under any
law of Congress, or any certificate or duplicate certificate
of location of any military bounty-land warrant, or mili-
tary bounty-land warrant certificate upon any of the
lands of the United States, or any certificate or duplicate
certificate of the purchase of any of the lands of the
United States, or any receipt or duplicate receipt for
the purchase money of any of the lands of the United
States, issued or purporting to have been issued by the
register and receiver at any land office of the United
States or by either of them; or whoever shall utter, pub-
lish, or pass as true, any such false, forged, or counter-
feited military bounty-land warrant, military bounty-
land warrant certificate, certificate or duplicate certificate
of location, certificate or duplicate certificate of purchase.

Offenses Against the Operation of Government. 787

receipt or duplicate receipt for the purchase money of
any of the lands of the United States, knowing the same
to be false, forged, or counterfeited, shall be imprisoned
not more than ten years. (R. S., s. 5420.)

§ 74. Forging, etc., certificate of citizenship. — Who-
ever shall falsely make, forge, or counterfeit, or cause or
procure to be falsely made, forged, or counterfeited, or
shall knowingly aid or assist in falsely making, forging,
or counterfeiting any certificate of citizenship, with in-
tent to use the same, or with the intent that the same may
be used by some other person, shall be fined not more than
ten thousand dollars, or imprisoned not more than ten
years, or both. (29 June, 1906, 34 Stat. L., 602, c. 3592,
s. 16.)

§ 75. Engraving, etc., plate for printing, or photo-
graphing, selling, or bringing into United States, etc.,
certificate of citizenship, etc. — Whoever shall engrave, or
cause or procure to be engraved, or assist in engraving,
any plate in the likeness of any plate designed for the
printing of a certificate of citizenship; or whoever shall
sell any such plate, or shall bring into the United States
from any foreign place any such plate, except under the
direction of the Secretary of Commerce and Labor or
other proper officer ; or whoever shall have in his control,
custody, or possession any metallic plate engraved after
the similitude of any plate from which any such certifi-
cate has been printed, with intent to use or to suffer such
plate to be used in forging or counterfeiting any such
certificate or any part thereof; or whoever shall print,
photograph, or in any manner cause to be printed, photo-
graphed, made, or executed, any print or impression in
the likeness of any such certificate, or any part thereof;
or whoever shall sell any such certificate, or shall bring
the same into the United States from any foreign place,
except by direction of some proper officer of the United
States; or whoever shall have in his possession a dis-
tinctive paper which has been adopted by the proper
officer of the United States for the printing of such
certificate, with intent unlawfully to use the same, shall
be fined not more than ten thousand dollars, or imprisoned
not more than ten years, or both. (29 June, 1906, 34
Stat. L., 602, c. 3592, s. 17.)

788 Federal Criminal Law Procedure.

§ 76. False personation, etc., in procuring naturali-
zation.— Whoever, when applying to be admitted a citi-
zen, or when appearing as a witness for any such person,
shall knowingly personate any person other than him-
self, or shall falsely appear in the name of a deceased
person, or in an assumed or fictitious name; or whoever
shall falsely make, forge, or counterfeit any oath, notice,
affidavit, certificate, order, record, signature, or other
instrument, paper, or proceeding required or authorized
by any law relating to or providing for the naturalization
of aliens; or whoever shall utter, sell, dispose of, or shall
use as true or genuine, for any unlawful purpose, any
false, forged, antedated, or counterfeit oath, notice, cer-
tificate, order, record, signature, instrument, paper, or
proceeding above specified; or whoever shall sell or dis-
pose of to any person other than the person for whom
it was originally issued any certificate of citizenship or
certificate showing any person to be admitted a citizen,
shall be fined not more than one thousand dollars, or im-
prisoned not more than five years, or both. (R. S.,s.
5424.)

U. S. v. York, 131 Fed. Rep., 323; U.
S. v. Raisch, 144 Fed. Rep., 486.

§ 77. Using false certificate of citizenship, or deny-
ing citizenship, etc. — Whoever shall use or attempt to
use, or shall aid, assist, or participate in the use of any
certificate of citizenship, knowing the same to be forged,
counterfeit, or antedated, or knowing the same to have
been procured by fraud or otherwise unlawfully ob-
tained; or whoever, without lawful excuse, shall know-
ingly possess any false, forged, antedated, or counter-
feit certificate of citizenship purporting to have been
issued under any law of the United States relating to
naturalization, knowing such certificate to be false,
forged, antedated, or counterfeit, with the intent un-
lawfully to use the same; or whoever shall obtain, ac-
cept, or receive any certificate of citizenship, knowing
the same to have been procured by fraud or by the use
or means of any false name or statement given or made
with the intent to procure, or to aid in procuring, the
issuance of such certificate, or knowing the same to have

Offenses Against the Operation of Government,, 789

been fraudulently altered or antedated; or whoever,
without lawful excuse, shall have in his possession any
blank certificate of citizenship provided "by the Bureau
of Immigration and Naturalization with the intent un-
lawfully to use the same; or whoever, after having been
admitted to be a citizen, shall, on oath or by affidavit,
knowingly deny that he has been so admitted, with the in-
tent to evade or avoid any duty or liability imposed
or required by law, shall be fined not more than one
thousand dollars, or imprisoned not more than fiveNyears,
or both. (R. S., s. 5425. 29 June, 1906, 34 Stat. L., 602,
c. 3592, s. 19.)

U. S. v. Melfi, 118 Fed. Rep., 899.

§ 78. Using false certificate, etc., as evidence of right
to vote, etc. — Whoever shall in any manner use, for the
purpose of registering as a voter, or as evidence of a
right to vote, or otherwise unlawfully, any order, cer-
tificate of citizenship, or certificate, judgment, or ex-
emplification, showing any person to be admitted to be
a citizen, whether heretofore or hereafter issued or made,
knowing that such order, certificate, judgment, or ex-
emplification has been unlawfully issued or made; or
whoever shall unlawfully use, or attempt to use, any
such order or certificate, issued to or in the name of any
other person, or in a fictitious name or the name of a
deceased person, shall be fined not more than one thou-
sand dollars, or imprisoned not more than five years, or
both. (R. S., s. 5426.)

U. S. v. Burley, 14 Blatch, 91, 24 Feci.
Cas., 1.101; U. S. v. Lehman, 39 Fed.
Rep.. 768.

§ 79. Falsely claiming citizenship. — Whoever shall
knowingly use any certificate or naturalization hereto-
fore or which hereafter may be granted by any court,
which has been or may be procured through fraud
by false evidence, or which has been or may hereafter
be issued by the clerk of any other officer of the court
without any appearance and hearing of the applicant
in court and without lawfull authority; or whoever, for
any fraudulent purpose whatever, shall falsely represent
himself to be a citizen of the United States without hav-
ing been duly admitted to citizenship, shall be fined not

790 Federal Criminal Law Procedure.

more than one thousand dollars, or imprisoned not more
than two years, or both. (R. S., s. 5428.)

Green, v. U. S., ISO Fed. Rep., 560.
U. S. v. Hamilton, 157 Fed. Rep., 569.

§ 80. Taking false oath in naturalization. — Whoever,
in any proceeding under or by virtue of any law relat-
ing to the naturalization of aliens, shall knowingly swear
falsely in any case where an oath is made or affidavit
taken, shall be fined not more than one thousand dollars
and imprisoned not more than five years. (R. S., s. 5395.)

Schmidt v. U. S., 133 Fed. Rep., 257;
Boren v. U. S., 144 Fed. Rep., 801;
Moon v. U. S., 144 Fed. Rep., 962.

§ 81. Provisions applicable to all courts of naturali-
zation.— The provisions of the five sections last preced-
ing shall apply to all proceedings had or taken, or attempt-
ed to be had or taken, before any court in which any pro-
ceeding for naturalization may be commenced or at-
tempted to be commenced, and whether sucli court was
vested by law with jurisdiction in naturalization pro-
ceedings or not. (R. S., s. 5429.)

§ 82. Shanghaiing, and falsely inducing persons in-
toxicated to go on vessel prohibited. — Whoever, with in-
tent that any person shall perform service or labor of
any kind on board of any vessel engaged in trade and
commerce among tlie several States or with foreign na-
tions, or on board of any vessel of the United States
engaged in navigating the high seas or any navigable
water of the United States, shall procure or induce, or
attempt to procure or induce, another, by force or
threats, or by representation which he knows or believes
to be untrue, or while the person so procured or induced
is intoxicated or under the influence of any drug, to go
on board of any such vessel, or to sign or in any wise enter
into any agreement to go on board of any such vessel
to perform service or labor thereon; or whoever shall
knowingly detain on board of any such vessel any per-
son so procured or induced to go on board thereof, or
to enter into any agreement to go on board thereof, by
any means herein defined; or whoever shall knowingly
aid or abet in the doing of any of the things herein made
unlawful, shall be fined not more than one thousand dol-

Offenses Against the Operation of Government. 791

lars, or imprisoned not more than one year, or both. (28
June 1906, 34 Stat. L., 551, c. 3583. 2 Mar., 1907, 34 Stat.
L., 1233, c. 2539.)

§ 83. Corporations, etc., not to contribute money for
political elections, etc. — It shall be unlawful for any
national bank, or any corporation organized by author-
ity of any law of Congress, to make a money contribu-
tion in connection with any election to any political of-
fice. It shall also be unlawful for any corporation what-
ever to make a money contribution in connection with
any election at which Presidential and Vice-Presidential
electors or a Representative in Congress is to be voted
for, or any election by any state legislature of a United
States Senator. Every corporation which shall make
any contribution in violation of the foregoing provisions
shall be fined not more than five thousand dollars; and
every officer or director of any corporation who shall
consent to any contribution by the corporation in viola-
tion of the foregoing provisions shall be fined not more
than one thousand dollars, or imprisoned not more than
one year, or both. (26 Jan., 1907, 34 Stat. L., 864, c. 420.)

§ 84. Hunting birds, or taking their eggs from breed-
ing grounds prohibited. — Whoever shall hunt, trap cap-
ture, wilfully disturb, or kill any bird of any kind what-
ever, or take the eggs of any such bird, on any lands
of the United States which have been set apart or re-
served as breeding grounds for birds, by any law, proc-
lamation, or Executive order, except under such rules
and regulations as the Secretary of Agriculture may,
from time to time, prescribe, shall be fined not more than
five hundred dollars, or imprisoned not more than six
months, or both. (28 June, 1906, 34 Stat. L., 536, c. 3565.)

CHAPTER FIVE.

OFFENSES RELATING TO OFFICIAL DUTIES.

§ 85. Officer, etc., of the United States guilty of extortion.

86. Receipting for larger suras than are paid.

87. Disbursing officer unlawfully converting, etc., public money.

88. Failure of treasurer, etc., to safely keep public money.

89. Custodian of public money failing to safely keep, etc.

90. Failure of officer to render accounts, etc.

91. Failure to deposit as required.

92. Provisions of the five preceding sections, to whom applicable.
■93. Record evidence of embezzlement.

'94. Prima facie evidence.

95. Evidence of conversion.

96. Banker, etc., receiving deposit from disbursing officer.

97. Embezzlement by Internal Revenue officer, etc.

98. Officer contracting beyond specific appropriation.

99. Officer of United States court failing to deposit moneys, etc.

100. Receiving loan or deposit from officer of court.

101. Failure to make returns or reports.

102. Aiding in trading in obscene literature, etc.

103. Collecting and disbursing officers forbidden to trade in public

property.

104. Certain officers forbidden to purchase, etc., witness, etc., fees.

105. Falsely certifying, etc., as to record of deeds, etc.

106. Other false certificates.

107. Inspector of steamboats receiving illegal fees.

108. Pension agent taking fee, etc.

109. Officer not to be interested in claims against United States.

110. Members of Congress, etc., solicting or accepting bribe, etc.

111. Offering, etc., Member of Congress bribe, etc.

112. Member of Congress taking consideration for procuring con-
tract, office, etc.; offering Member consideration, etc.

113. Member of Congress, etc., taking compensation in matters to

which United States is a party.

111. Members of Congress not to be interested in contract.

115. Officer making contract with Member of Congress.

116. Contracts to which two preceding sections do not apply.

117. United States officer accepting bribe.

118. Political contributions not to be solicted by certain officers.

119. Political contributions not to be received in public offices.

120. immunity from official proscription.

121. Giving money to officials for political purposes prohibited.
l-_ Penalty for violating provisions of four preceding sections.

(792)

Offenses Eelating to Official Duties. 793

123. Government officer, etc., giving out advance information re-

specting crop reports.

124. Government officer, etc., knowingly compiling or issuing false

statistics respecting crops.

§ 85. Officer, etc., of the United States guilty of ex-
tortion.— Every officer, clerk, agent, or employe of the
United States, and every person representing himself
to be or assuming to act as such officer, clerk, agent, or
employee, who, under color of his office, clerkship, agen-
cy, or employment, or under color of his pretended or
assumed office, clerkship, agency, or employment, is
guilty of extortion, and every person who shall attempt
any act which if performed would make him guilty of
extortion, shall be fined not more than five hundred dol-
lars, imprisoned not more than one year, or both. (R.
S., s. 5481. 28 June, 1906, 34 Stat. L., 546, c. 3574.)

Williams v. U. S., 168 U. S., 382; v. Harned, 3 Fed. Rep., 376; U. S. v.

Ogden v. Maxwell, 3 Blatch. 319, 18 Deaver, 14 Fed. Rep., 595; U. S. v. More,

Fed. Cas., 613; U. S. v. Carr, 3 Sawyer, 18 Fed. Rep., 696; U. S. v. Schlierholz,

302, 25 Fed. Cas., 3U3. U. S. v. Waitz, 133 Fed. Rep., 333; 137 Fed. Rep., 616.
3 Sawyer, 473, 28 Fed. Cas., 386; U. S.

§ 86. Receipting for larger sums than are paid.-
Whoever, being an officer, clerk, agent, employee, or
other person charged with the payment of any appro-
priation made by Congress, shall pay to any clerk or
other employee of the United States a sum less than that
provided by law, and require such employee to receipt
or give voucher for an amount greater that that actually
paid to and received by him, is guilty of embezzlement,
and shall be fined in double the amount so withheld
from any employee of the Government and imprisoned
not more than two years. (R. S., s. 5483.)

U. S. v. Mayers, Fed. Rep., 159.

§ 87. Disbursing officer unlawfully converting, etc.,
public money. — Whoever, being a disbursing officer of
the United States, or a person acting as such, shall in
any manner convert to his own use, or loan, with or
without interest, or deposit in any place or in any man-
ner, except as authorized by law, any public money in-
trusted to him; or shall, for any purpose not prescribed
by law, withdraw from the Treasurer or any assistant
treasurer, or any authorized depositary, or transfer, or

7:»4 Federal Criminal Law Procedure.

apply, any portion of the public money intrusted to him,
shall be deemed guilty of an embezzlement of the moneys
so converted, loaned, deposited, withdrawn, transferred,
or applied, and shall be fined not more than the amount
embezzled, or imprisoned not more than ten years, or
both. (R. S., s. 5488.)

15 A. G. Op., 288.

§ 88. Failure of Treasurer to safely keep public
moneys. — If the Treasurer of the United States or any
assistant treasure!', or any public depositary, fails safely
to keep all moneys deposited by any disbursing officer
or disbursing agent, as well as all moneys deposited by
any receiver, collector, or other person having money
of the United States, he shall be deemed guilty of em-
bezzlement of the moneys not so safely kept, and shall
be fined in a sum equal to the amount of money so em-
bezzled and imprisoned not more than ten years. (R. S.,
s. 5489. 31 Mar., 1886, 24 Stat. L., 9, c. 41, s. 1; 1 Supp.,
489.)

15 A. G. Op., 288.

§ 89. Cusodians of public money failing to safely
keep, etc. — Every officer or other person charged by any
act of Congress with the safekeeping of the public
moneys, who shall loan, use, or convert to his own use,
or shall deposit in any bank or exchange for other funds,
except as specially allowed by law, any portion of the
public moneys intrusted to him for safe-keeping, shall
be guilty of embezzlement of the moneys so loaned, used,
coverted, deposited, or exchanged, and shall be fined in
a sum equal to the amount of money so embezzled and
imprisoned not more than ten years. (R. S., s. 5490.)

I'. S. v. Cook, 17 Wall, 168; U. S. v.
Forsythe, 6 McLean, 584, 25 Fed. Cas.,
1152 7 A. G. Op., 82, 257.

'0. Failure of officer to render accounts, etc. — Every
officer or agent of the United States who, having re-
ceived pubic money which he is not auhorized to retain
;i- salary, pay, or emolument, fails to render his ac-
count-; I'm- the same as provided by law shall be deemed
guilty <>!' embezzlement, and shall be fined in a sum equal

Offenses Relating to Official Duties. 795

to the amount of the money embezzled and imprisoned
not more than ten years. (R. S., s. 5491.)

U. S. v. Hutchison, 4 Pa. L. T. Rep.,
211, 26 Fed. Cas., 452; 5 A. G. Op.,
685.

§ 91. Failure to deposit as required. — Whoever, hav-
ing money of the United States in his possession or
under his control, shall fail to deposit it with the Treas-
urer, or some assistant treasurer, or some public deposi-
tary of the United States, when required so to do by the
Secretary of the Treasury, or the head of any other
proper department, or by the accounting officers of the
Treasury, shall be deemed guilty of embezzlement there-
of, and shall be fined in a sum equal to the amount of
money embezzled and imprisoned not more than ten
years. (R. S., s. 5492.)

U. S. v. Dimmick, 112 Fed. Rep., 350.
352; Dimmick v. U. S., 121 Fed. Rep.,
638; 15 A. G. Op., 280.

§ 92. Provisions of the five preceding sections, how
applied. — The provisions of the five preceding sections
shall be construed to apply to all persons charged with
the safe-keeping, transfer, or disbursement of the public
money, whether such persons be indicted as receivers or
depositaries of the same. (R. S., s. 5493.)

§ 93. Record evidence of embezzlement. — Upon the
trial of any indictment against any person for embez-
zling public money under any provision of the six pre-
ceding sections, it shall be sufficient evidence, prima
facie, for the purpose of showing a balance against such
person, to produce a transcript from the books and pro-
ceedings of the Treasury, as required in civil cases, un-
der the provisions for the settlement of accounts be-
tween the United States and receivers of public money.
(R, S., s. 5494.)

§ 94. Prima facie evidence. — The refusal of any per-
son, whether in or out of office, charged with the safe-
keeping, transfer, or disbursement of the public money
to pay any draft, order, or warrant, drawn upon him by
the proper accounting officer of the Treasury, for any
public money in his hands belonging to the United
States, no matter in what capacity the same may have
been received, or may be held, or to transfer or disburse

796 Federal. Criminal. Law Procedure.

any such money, promptly, upon the legal requirement
of any authorized officer, shall be deemed, upon the trial
of any indictment against such person for embezzle-
ment, prima facie evidence of such embezzlement. (R. S.,
s. 5495.)

§ 95. Evidence of conversion. — If any officer charged
with the disbursement of the public moneys accepts, re-
ceives, or transmits to the Treasury Department to be
allowed in his favor any receipt or voucher from a cred-
itor of the United States without having paid to such
creditor in such funds as the officer received for disburse-
ment, or in such funds as he may be authorized by law
to take in exchange, the full amount specified in such re-
ceipt or voucher, every such act is an act of conversion by
such officer to his own use of the amount specified in such
receipt or voucher. (R. S., s. 5496.)

§ 96. Banker, etc., receiving deposit from disbursing
officer. — Every banker, broker, or other person not an
authorized depositary of public moneys, who shall know-
ingly receive from any disbursing officer, or collector of
internal revenue, or other agent of the United States,
any public money on deposit, or by way of loan or ac-
commodation, with or without interest, or otherwise
than in payment of a debt against the United States, or
shall use, transfer, convert, appropriate, or apply any
portion of the public money for any purpose not pre-
scribed by law; and every president, cashier, teller, di-
rector, or other officer of any bank or banking associa-
tion who shall violate any provision of this section is
guilty of embezzlement of the public money so deposited,
loaned, transferred, used, converted, appropriated, or
applied, and shall be fined not more than the amount
embezzled, or imprisoned not more than ten years, or
both. (R.'S., s. 5497. 3 Feb., 1879, 20 Stat. L., 280, c.
42, s. 1; 1 Supp, 213.)

Ciink Count v National Hank v. U. S.,
107 U. S., 445; 15 A. G. Op. 288.

97. Embezzlement by internal-revenue officers, etc.
-Any officer connected with, or employed in, the Inter-
nal Revenue Service of the United States, and any as-
sistant of such officer, who shall embezzle or wrongfully

Offenses Relating to Official Duties. 797

convert to his own use any money or other property of
the United States, and any officer of the United States,
or any assistant of such officer, who shall embezzle or
wrongfully convert to his own use any money or prop-
erty which may have come into his possession or under
his control in the execution of such office or employment,
or under color or claim of authority as such officer or
assistant, whether the same shall be the money or prop-
erty of the United States or of some other person or
party, shall, where the offense is not otherwise punish-
able by some statute of the United States, be fined not
more than the value of the money and property thus
embezzled or converted, or imprisoned not more than
ten years, or both. (R. S., s. 5497. 3 Feb., 1879, 20
Stat. L., 280, c. 42, s. 1; 1 Supp., 213.

§ 98. Officer contracting beyond specific appropria-
tion.— Whoever, being an officer of the United States,
shall knowingly contract for the erection, repair, or
furnishing of any public building, or for any public im-
provement, to pay a larger amount than the specific sum
appropriated for such purpose, shall be fined not more
than two thousand dollars and imprisoned not more
than two years. (R. S., s. 5503.)

§ 99. Officer of United States court failing to deposit
money, etc. — Whoever, being a clerk or other officer of
a court of the United States, shall fail forthwith to de-
posit any money belonging in the registry of the court,
or hereafter paid into court or received by the officers
thereof, with the Treasurer, assistant treasurer, or a
designated depositary of the United States, in the name
and to the credit of such court, or shall retain or con-
vert to his own use or to the use of another any such
money, is guilty of embezzlement, and shall be fined not
more than the amount embezzled, or imprisoned not more
than ten years, or both; but nothing herein shall be held
to prevent the delivery of any such money upon secur-
ity, according to agreement of parties, under the direc-
tion of the court. (R. S., s. 5504.)

Henry v. Sowles, 28 Fed. Rep., 481;
U. S. v. Bixby, 10 Biss, 238.

§ 100. Receiving loan or deposit from officer of court.
— Whoever shall knowingly receive, from a clerk or

798 Federal Criminal Law Procedure.

other officer of a court of the United States, as a deposit,
loan, or otherwise, any money belonging in the registry
of such court, is guilty of embezzlement, and shall be
punished as prescribed in the preceding section. (R. S.,
s. 5505.)

§ 101. Failure to make returns or reports. — Every
officer who neglects or refuses to make any return or re-
port which he is required to make at stated times by
any act of Congress or regulation of the Department of
the Treasury, other than his accounts, within the time
prescribed by such act or regulation, shall be fined not
more than one thousand dollars. (E. S., s. 1780.)

§ 102. Aiding in trading in obscene literature, etc. —
Whoever, being an officer, agent, or employee of the Gov-
ernment of the United States shall knowingly aid or abet
any person engaged in violating any provision of law
prohibiting importing, advertising, dealing in, exhibit-
ing, or sending or receiving by mail, obscene or indecent
publications or representations, or means for prevent-
ing conception or producing abortion, or other article of
indecent or immoral use or tendency, shall be fined not
more than five thousand dollars, or imprisoned not more
than ten years, or both. (R. S., s. 1785, 1 Oct., 1890, 26
Stat. L., 615, c. 1244, s. 12; 1 Supp., 860. 27 Aug., 1894,
28 Stat. L., 549, c. 3494, s. 11; 2 Supp., 311. 24 July,
1879, 30 Stat. L., 209, c. 11, s. 17; 2 Supp., 708.)

U. S. v. Williams, 3 Fed. Rep., 489;
see cases under R. S., 3893, Fed. Rep.,
Dig., 7446, 7451.

§ 103. Collecting and disbursing officers forbidden to
trade in public funds, etc.— Whoever, being an officer of
the United States concerned in the collection or the dis-
bursement of the revenues thereof, shall carry on any
trade or business in the funds or debts of the United
SI ales, or of any State, or in any public property of
either, shall lie fined not more than three thousand dol-
lar-, or imprisoned not more than one year, or both, and
be removed from office, and thereafter be incapable of
holding any office under the United States. (R. S., ss.
1788, 1789.)

14 A. G. Op., 352.

Offenses Eelating to Official Duties. 799

§ 104. Certain officers forbidden to purchase, etc.,
witness, etc., fees. — Whoever, being a judge, clerk, or
deputy clerk of any court of the United States, or of
any Territory thereof, or a United States district attor-
ney, assistant attorney, marshal, deputy marshal, com-
missioner, or other person holding any office or employ-
ment, or position of trust or profit under the Govern-
ment of the United States shall, either directly or in-
directly, purchase at less than the full face value there-
of, any claim against the United States for the fee, mile-
age, or expenses of any witness, juror, deputy marshal,
or any other officer of the court whatsoever, shall be
fined not more than one thousand dollars. (25 Feb.,
1897, 29 Stat. L., 595, c. 316; 2 Supp., 563.)

§ 105. Falsely certifying, etc., as to record of deeds.
— Whoever, being an officer or other person authorized
by any law of the United States to record a conveyance
of real property or any other instrument which by such
law may be recorded, shall knowingly certify falsely that
such conveyance or instrument has or has not been record-
ed, shall be fined not more than one thousand dollars, or
imprisoned not more than seven years, or both.

§ 106. Other false certificates. — Whoever being a
public officer or other person authorized by any law of
the United States to make or give a certificate or other
writing, shall knowingly make and deliver as true such
a certificate or writing, containing any statement which
he knows to be false, in a case where the punishment
thereof is not elsewhere expressly provided by law, shall
be fined not more than five hundred dollars, or imprisoned
not more than one year, or both.

§ 107. Inspector of steamboats receiving illegal fees.
— Every inspector of steamboats who, upon any pre-
tense, receives any fee or reward for his services, ex-
cept what is allowed to him by law, shall forfeit his
office, and be fined not more than five hundred dollars,
or imprisoned not more than six months, or both. (R.
S., s. 5482.)

§ 108. Pension agent taking fee, etc. — Every pension
agent, or other person employed or appointed by him,
who takes, receives, or demands any fee or reward from

800 Federal Criminal Law Procedure.

any pensioner for any service in connection with the pay-
ment of his pension, shall be fined not more than five
hundred dollars. (R, S., s. 5487.)

§ 109. Officer not to be interested in claims against
United States. — Whoever, being an officer of the United
States, or a person holding any place of trust or profit,
or discharging any official function under, or in connec-
tion with, any Executive Department of the Government
of the United States, or under the Senate or House of
Representatives of the United States, shall act as an
agent or attorney for prosecuting any claim against the
United States, or in any manner, or by any means, other-
wise than in discharge of his proper official duties, shall
aid or assist in the prosecution or support of any such
claim, or receive any gratuity, or any share of or interest
in any claim from any claimant against the United States,
with intent to aid or assist, or in consideration of having
aided or assisted, in the prosecution of such claim, shall
be fined not more than five thousand dollars, or im-
prisoned not more than one year, or both. (R. S. s. 5498.)

Ex parte Curtis, 106 U. S., 371; Tyler's 31 Ct. CI., 35; People v. Duane, 121 N.
Motion, 18 Ct. CI., 25; In re Winthrop, Y., 373; 16 A. G. Op., 478.

§ 110. Member of Congress, etc., soliciting or accept-
ing bribe. — Whoever, being elected or appointed a Mem-
ber of or Delegate to Congress, or a Resident Commis-
sioner shall, after his election or appointment, and either
before or after he has qualified, and during his con-
tinuance in office, directly or indirectly ask, accept, re-
ceive, or agree to receive, any money, property, or other
valuable consideration, or any promise, contract, under-
taking, obligation, gratuity, or security for the payment
of money or for the delivery or conveyance of anything
of value to him or to any person with his consent, con-
nivance, or concurrence, for his attention to, or services,
or with the intent to have his action, vote, or decision
influenced on any question, matter, cause, or proceeding,
which may at any time be pending in either House of
Congress or before any committee thereof, or which by
law or under the Constitution may be brought before
him in his official capacity, or in his place as such Mem-
Imt, Delegate, or Resident Commissioner, shall be fined

Offenses Relating to Official Duties. 801

not more than three times the amount asked, accepted,
or received, and imprisoned not more than three years;
and shall, moreover, forfeit his office or place, and there-
after be forever disqualified from holding any office of
honor, trust, or profit under the Government of the Unit-
ed States. (R. S., ss. 1781, 5500, 5502.)

U. S. v. Kessel, 62 Fed. Rep., 57; U.
S. v. Van Leuven, 62 Fed. Rep., 62.

§ 111. Offering, etc., Member of Congress bribe, etc.
— Whoever shall promise, offer, or give, or cause to be
promised, offered, or given, any money or other thing
of value, or shall make or tender any contract, under-
taking, obligation, gratuity, or security for the payment
of money or for the delivery or conveyance of anything
of value, to any Member of either House of Congress, or
Delegate to Congress, or Resident Commissioner, after
his election or appointment and either before or after he
has qualified, and during his continuance in office, or to
any person with his consent, connivance, or concurrence,
with intent to influence his action, vote, or decision, on
any question, matter, cause, or proceeding which may
at any time be pending in either House of Congress, or
before any committee thereof, or which by law or under
the Constitution may be brought before him in his offi-
cial capacity or in his place as such Member, Delegate,
or Resident Commissioner, shall be fined not more than
three times the amount of money or value of the thing
so promised, offered, given, made, or tendered, and im-
prisoned not more than three years. (R. S., s. 5450.)

§ 112. Member of Congress taking consideration for
procuring contracts, offices, etc., offering Member consid-
eration, etc. — Whoever, being elected or appointed a
Member of or Delegate to Congress, or a Resident Com-
missioner, shall after his election or appointment and
either before or after he has qualified and during his con-
tinuance in office, or being an officer or agent of the United
States, shall directly or indirectly take, receive, or agree
to receive, from any person, any money, property, or other
valuable consideration whatever, for procuring, or aid-
ing to procure, any contract, appointive office, or place
from the United States or from any officer or Depart-
ment thereof, for any person whatever, or for giving any

802 Federal Criminal Law Procedure.

such contract, appointive office, or place to any person
whomsoever; or whoever, directly or indirectly, shall
offer, or agree to give, or shall give or bestow, any money,
property, or other valuable consideration whatever, for
the procuring, or aiding to procure, any such contract, ap-
pointive office, or place, shall be fined not more than ten
thousand dollars and imprisoned not more than two
years; and shall, moreover, be disqualified from holding
any office of honor, profit, or trust under the Government
of the United States. Any such contract or agreement
may, at the option of the President, be declared void.
(R. S., s. 1781.)

Ex parte Curtis, 106 U. S., 371; U. v. Dietrich, 126 Fed. Rep., 664, 676; 1
S. v. Driggs, 125 Fed. Rep., 520; U. S. Comp. Dec., 859; 14 A. G. Op., 482.

§ 113. Member of Congress taking compensation in
matters to which United States is a party. — Whoever,
being elected or appointed a Senator, Member of or Dele-
gate to Congress, or a Resident Commissioner, shall,
after his election or appointment and either before or
after he has qualified, and during his continuance in of-
fice, or being the head of a department, or other officer
or clerk in the employ of the United States, shall, direct-
ly or indirectly, receive, or agree to receive, any com-
pensation whatever for any services rendered or to be
rendered to any person either by himself or another, in
relation to any proceeding, contract, claim, controversy,
charge, accusation, arrest or other matter or thing in
which the United States is a party or directly or indi-
rectly interested, before any department, court-martial,
bureau, officer, or any civil, military, or naval commis-
sion whatever, shall be fined not more than ten thou-
sand dollars and imprisoned not more than two years;
and shall, moreover, thereafter be incapable of holding
any office of honor, trust, or profit under the Government
of *the United States. (R. S., s. 1782.)

Ex parte Curtis, 106 U. S. 371; Bur- 552; U. S. v. Booth, 148 Fed. Rep., 112;

ton v. U. S. 196 U. S., 283; 202 U. S., 14 A. G. Op., 482; 17 A. G. Op., 420;

344; U. S. v. Driggs, 125 Fed. Rep., 18 A. G. Op., 161; 1 Comp. Dec. 859.
520; Burton v. U. S., 131 Fed. Rep.,

§ 1 14. Member of Congress not to be interested in
contract. — Whoever, being elected or appointed a Mem-
ber of or Delegate to Congress, or a Resident Commis-
sioner, shall, after his election or appointment and either

Offenses Relating to Official Duties. 803

before or after he lias qualified, and during his con-
tinuance in office, directly or indirectly, himself, or bv

7 %/ %/ 7 */

any other person in trust for him, or for his use or bene-
fit, or on his account, undertake, execute, hold, or enjoy,
in whole or in part, any contract or agreement, made
or entered into in behalf of the United States by any
officer or person authorized to make contracts on its be-
half, shall be fined not more than three thousand dollars.
All contracts or agreements made in violation of this
section shall be void; and whenever any sum of money
is advanced by the United States, in consideration of any
such contract or agreement, it shall forthwith be repaid;
and in case of failure or refusal to repay the same when
demanded b}r the proper officer of the Department under
whose authority such contract or agreement shall have
been made or entered into, suit shall at once be brought
against the person so failing or refusing and his sure-
ties, for the recovery of the money so advanced. (R. S.,
s. 3739.)

U. S. v. Dietrich, 126 Fed. Rep., 671.
2 A. G. Op., 38; 5 A. G. Op., 697; IS
A. G. Op., 280.

§ 115. Officer making contract with Member of Con-
gress.— Whoever, being an officer of the United States,
shall on behalf of the United States, directly or indirect-
ly make or enter into any contract, bargain, or agree-
ment, in writing or otherwise, with any Member of or
Delegate to Congress, or any Resident Commissioner,
after his election or appointment as such Member, Dele-
gate, or Resident Commissioner, and either before or
after he has qualified, and during his continuance in
office, shall be fined not more than three thousand dol-
lars. (R. S., s. 3742.)

4 A. G. Op., 47; 15 A. G. Op., 151,

280.

§ 116. Contracts to which two preceding sections do
not apply. — Nothing contained in the two preceding sec-
tions shall extend, or be construed to extend, to any con-
tract or agreement made or entered into, or accepted,
by any incorporated company, where such contract or
agreement is made for the general benefit of such incor-
poration or company; nor to the purchase or sale of bills
of exchange or other property by any Member of or

804 Federal Criminal Law Procedure.

Delegate to Congress, or Resident Commissioner, where
the same are ready for delivery, and payment therefor
is made, at the time of making or entering into the con-
tract or agreement. (R. S., s. 3740.)

§ 117. United States officer accepting bribe. — Who-
ever, being an officer of the United States, or a person
acting for or on behalf of the United States, in any offi-
cial capacity, under or by virtue of the authority of any
department or office of the Government thereof; or who-
ever, being an officer or person acting for or on behalf
of either House of Congress, or of any committee of
either House, or of both Houses thereof, shall ask, ac-
cept, or receive any money, or any contract, promise,
undertaking, obligation , gratuity, or security for the
payment of money, or for the delivery or conveyance of
anything of value, with intent to have his decision or
action on any question, matter, cause, or proceeding
which may at any time be pending, or which may by
law be brought before him in his official capacity, or in
his place of trust or profit, influenced thereby, shall be
fined not more than three times the amount of money or
value of the thing so asked, accepted, or received, and
imprisoned not more than three years; and shall, more-
over, forfeit his office or place and thereafter be forever
disqualified from holding any office of honor, trust, or
profit under the Government of the United States. (R. S.,
ss. 5501, 5502.)

U. S. v. Kessel, 62 Fed. Rep., 57; U. v. Ingham, 97 Fed. Rep., 935; King v.
S. v. Van Leuven, 62 Fed. Rep., 62; U. S., 112 Fed. Rep., 988; Sharp v. U.
U. S. v. Boyer, 85 Fed. Rep., 425; U. S. S., 138 Fed. Rep., 878.

§ 118. Political contributions not to be solicited by
certain officers. — No Senator or Representative in, or
Delegate or Resident Commissioner to Congress, or Sen-
ator, Representative, Delegate, or Resident Commission-
er elect, or officer or employee of either House of Con-
gress, and no executive, judicial, military, or naval offi-
cer of the United States, and no clerk or employee of
any department, branch, or bureau of the executive,
judicial, or military or naval service of the United States,
shall, directly, or indirectly, solicit or receive, or be in
any manner concerned in soliciting or receiving, any
nient, subscription, or contribution for any politi-

Offenses Relating to Official, Duties. 805

cal purpose whatever, from any officer, clerk, or em-
ployee of the United State, or any department, branch,
or bureau thereof, or from any person receiving any sal-
ary or compensation from moneys derived from the
Treasury of the United States. (16 Jan., 1883, 22 Staty
L., 406, c. 27, s. 11; 1 Supp., 395.)

§ 119. Political contributions not to be received in
public offices. — No person shall, in any room or building
occupied in the discharge of official duties by any officer
or employee of the United States mentioned in the pre-
ceding section, or in any navy-yard, fort, or arsenal, so-
licit in any manner whatever or receive any contribution
of money or other thing of value for any political pur-
pose whatever. (16 Jan., 1883, 22 Stat. L., 407, c. 27, s.
12; 1 Supp., 396; U. S. v. Thayer, 209 U, S., 39; U. S. v.
Thayer, 154 Fed. Rep., 508; U. S. v. Smith, 163 Fed.
Rep., 926.)

§ 120. Immunity from official proscription, etc. — No
officer or employee of the United States mentioned in sec-
tion one hundred and eighteen, shall discharge, or pro-
mote or degrade, or in any manner change the official
rank or compensation of any other officer or employee,
or promise or threaten so to do, for giving or withhold-
ing or neglecting to make any contribution of money or
other valuable thing for any political purpose. (16 Jan.,
1883, 22 Stat. L., 407, c. 27, s. 13; 1 Supp., 396.)

§ 121. Giving money, etc., to officials for political \
purposes prohibited. — No officer, clerk, or other person
in the service of the United States shall, directly or in-
directly, give or hand over to any other officer, clerk, or
person in the service of the United States, or to any Sen-
ator or Member of or Delegate to Congress, or Resident
Commissioner, any money or other valuable thing on ac-
count of or to be applied to the promotion of any politi-
cal object whatever. (16 Jan., 1883, 22 Stat. L., 407, c.
27, s. 14; 1 Supp., 396.)

§ 122. Penalty for violating provinsions of four
preceding sections. — Whoever shall violate any provi-
sion of the four preceding sections shall be fined not more
than five thousand dollars, or imprisoned not more than
three years, or both. (16 Jan. 1883, 22 Stat. L., 407 c.
27, s. 15; 1 Supp., 396.)

806 Federal Criminal Law Procedure.

L23. Government officer, etc., giving out advance
information respecting crop reports. — Whoever, being an
officer or employee of the United States or a person act-
ing for or on behalf of the United States in any capacity
tinder or by virtue of the authority of any Department
or office thereof, and while holding such office, employ-
ment or position shall, by virtue of the office, employment,
or position held by him, become possessed of any in-
formation which might exert an influence upon or affect
the markel value of any product of the soil grown within
the United States, which information is by law or by the
rules of the Department or office required to be withheld
from publication until a fixed time, and shall willfully im-
part, directly or indirectly, such information, or any part
thereof, to any person not entitled under the law or the
rules of the Department or office to receive the same;
or shall, before such information is made public through
regular official channels, directly or indirectly speculate
in any such producl respecting which he has thus become
po- e ed of such information, by buying or selling the
.Hue in ;ni\ quantity, shall be fined not more
than ten thousand dollars, or imprisoned not more
than ten years, or both: Provided, That no per-
son shall be deemed guilty of a violation of any
iich rule unless prior to such alleged violation be
shall have had actual knowledge thereof.

L24. Government officer, e'tc, knowingly compiling
or issuing false statistics respecting crops. — Whoever, be
ing .in officer or employee of the United States, and whose
duties require the compilation or report of statistics or
information relative l<» the products of the soil, shall
knowingly compile for issuance, <>r issue, any false statis-
tic or information as a report of the United Slates, shall
he fined not more than five thousand dollars, or im-
pn oned not more than five years, or both.

CHAPTER SIX.

OFFENSES AGAINST PUBLIC JUSTICE.

§ 125. Perjury.

126. Subornation of perjury.

127. Stealing or altering process; procuring false bail, etc.

128. Destroying, etc., public records.

129. Destroying records by officer in charge.

130. Forging signature of judge, etc.

131. Bribery of a judge or judicial officer.

132. Judge or judicial officer accepting a bribe, etc.

133. Juror, referee, master, etc., or judicial officer, etc., accepting

bribe.

134. Witness accepting bribe.

135. Intimidation or corruption of witness, or grand or petit juror,

or officer.

136. Conspiring to intimidate party, witness, or juror.

137. Attempt to influence juror.

138. Allowing prisoner to escape.

139. Application of preceding section.

140. Obstructing process or assaulting an officer.

141. Rescuing, etc., prisoner; concealing, etc., person for whom

warrant has issued.

142. Rescue at execution.

143. Recue of prisoner.

144. Rescue of body of executed offender.

145. Extortion by informer.

146. Misprision of felony.

§ 125. Perjury. — Whoever, having taken an oath be-
fore a competent tribunal, officer, or person, in any case
in which a law of the United States authorizes an oath
to be administered, that he will testify, declare, depose,
or certify truly, or that any written testimony, declara-
tion, deposition, or certificate by him subscribed, is true,
shall willfully and contrary to such oath state or sub-
scribe any material matter which he does not believe to
be true, is guilty of perjury, and shall be fined not more
than two thousand dollars and imprisoned not more than
five years. (R. S., s. 5392.) .

U. S. v. Passmore. 4 Dull. 392; U. S. S., 177; Logan v. U. S.. 144 U. S., 263,

v. Bailey, 9 Pet., 238; U. S. v. Wood. 302; U. S. v. Eaton, 144 U. S., 677; Caha

14 Pet., 430; U. S. v. Nickersen. 17 v. U. S., 152 U. S., 211, 215. 220;

How.. 204: U. S. v. Curtis, 107 U. S., New York v. Eno, 155 U. S., 89, 97;

671; U. S. v. Ambrose, 108 U. S.. 336, 2 Dunbar v. U. S.. 156 U. S., 185, 192;

Fed. Rep., 556; U. S. v. Barber, 140 U. Todd v. U. S., 158 U. S., 278. 284;

(807)

808

Fedebal Ckiminal Law Procedure.

Bucklin v. U. S., 159 U. S., 680, 682;
Markham v. U. S., 160 U. S. 319,
323; In re Pollock, 165 U. S., 526,
533; U. S. v. Atkins, 1 Sprague, 558,
24 Fed. Cas., 885; U. S. v. Babcock,
4 McLean, 113, 24 Fed. Cas., 928,
U. S. v. Clark, 1 Gall., 497, 25 Fed.
Cas., 411; U. S. v. Conner, 3 McLean,
25 Fed. Cas., 595; U. S. v.
Deming, 4 McLean, 3 25 Fed. Cas., 816;
l . S. v. Kendrick, 2 Mas., 60, 26 Fed.
Cas., 758; Ex. parte Bridges, 2 Woods,
428, 4 Fed. Cas., 99; U. S. v. Nich-
ois, 4 McLean, 23, 27 Fed. Cas., 151;

. v. Smith. 1 Saw., 277, 27 Fed.
Cas., 1175; U. S. v. Sonachall, 4 Biss.,
425, 11 Fed. Cas., 1259; U. S. v. Volz,
14 match., 15, 28 Fed. Cas., 384; U.
S. v. Jones, 14 Blatch., 90, 26 Fed.
Cas.. 638; U. S. v. Baer, 18 Blatch.,

6 Fed. Cas., 42; U. S. v. Bartow,
10 Fed. Rep., 873; U. S. v. Neal, 14
Fed. Rep., 767; U. S. v. Madison, 21
Fed. Rep., 628; U. S. v. Walsh, 22
Fed. Rep., 644; U. S. v. Landsberg,
23 Fed. Rep., 585; U. S. v. Hearing,
26 Fed. Rep., 744; U. S. v. Grottkau,

30 Fed. Rep., 672; U. S. v. Burkhardt,

31 Fed. Rep., 141; U. S. v. Boggs, 31
fed. Rep., 337; U. S. v. McConaughy, 33

Fed. Rep., 168; Babcock v. U. S., 34
Fed. Rep., 873; U. S. v. Howard, 37
Fed. Rep., 666; U. S. v. Cuddy, 39
Fed. Rep., 696; U. S. v. Edwards, 43
Fed. Rep., 67; U. S. v. Wood, 44 Fed.
Rep., 753; U. S. v. Manion, 44 Fed.
Rep., 800; U. S. v. Hall, 44 Fed. Rep.,
864; U. S. v. Bedford, 49 Fed. Rep.,
54; U. S. v. Law, 50 Fed. Rep., 915;
U. S. v. Singleton, 54 Fed. Rep., 488;
U. S. v. Wood, 70 Fed. Rep., 485; U.
S. v. Pettus, 84 Fed. Rep., 791; U.
S. v. Maid, 116 Fed. Rep., 650; Noah
v. U. S., 128 Fed. Rep., 270; U. S. v.
Hardison, 135 Fed. Rep., 419; Van
Gesner v. U. S., 153 Fed. Rep., 46;
U. S. v. Williamson, 153 Fed. Rep.,
46; Nurnberger v. U. S., 156 Fed. Rep.,
721; O'Leary v. U. S., 158 Fed. Rep.,
176; WechsTer v. U. S., 158 Fed. Rep.,
579; Nickell v. U. S., 161 Fed. Rep.,
702; Sullivan v. U. S., 161 Fed. Rep.,
254; Barnard v. U. S., 162 Fed. Rep.,
622; U. S. v. Lamson, 165 Fed. Rep.,
80; Hashagen v. U. S., 169 Fed. Rep.,
396; U. S. v. Patterson, 171 Fed. Rep.,
241; U. S. v. Ammerman, 176 Fed.
Rep., 635; 2 A. G. Op., 700; 2 Comp.
Dec, 2583.

Babcock v. U. S., 34 Fed. Rep., 873:
U. S. v. Howard, 132 Fed. Rep., 325;
U. S. v. Cobban, 134 Fed. Rep., 290;
U. S. v. Brace, 144 Fed. Rep., 869.

§ 126. Subordination of perjury. — Whoever shall pro-
cure another to commit any perjury is guilty of suborna-
tion or perjury, and punishable as in the preceding sec-
tion prescribed. (R. S., s. 5393.)

I". S. v. Donnee, 3 Woods, 39, 25
Fed. Cas., 817; U. S. v. Wilcox, 4
Blatch., 393, 28 Fed. Cas., 600; U.
S. v. Evans, 19 Fed. Rep.. 912; U.
S. v. Thompson, 31 Fed. Rep., 331;

§ 127. Stealing or altering process; procuring false
bail, etc. — Whoever shall feloniously steal, take away,
«i iter, falsify, or otherwise avoid any record, writ, pro-
cess, or oilier proceeding, in any court of the United
States, by means whereof any judgment is reversed,
made void, or does not take effect; or whoever shall
acknowledge, or procure to be acknowledged, in any such
court, any recognizance, bail, or judgment, in the name
of any other person not privy or consenting to the same,
shall be fined not more than five thousand dollars, or im-
prisoned not more than seven years or both; but this
provision shall not extend to the acknowledgment of any
judgment by an attorney, duly admitted for any person
againsl whom such judgment is had or given. (R. S., s.
5394.)

I'. S. v. Crecilius, 34 Fed. Rep., 30;
Barbel v. I'. S.. 35 Fed. Rep., 886; 5
A. O. Op., 523.

Offences Against Public Justice. 809

§ 128. Destroying, etc., public records. — Whoever
shall wilfully and unlawfully conceal, remove, mutilate,
obliterate, or destroy, or attempt to conceal, remove,
mutilate, obliterate, or destroy, or, with intent to con-
ceal, remove, mutilate, obliterate, destroy, or steal, shall
take and carry away any record, proceeding, map, book,
paper, document, or other thing, filed or deposited with
any clerk or officer of any court of the United States, or
in any public office, or with any judicial or public officer
of the United States, shall be fined not more than two
thousand dollars, or imprisoned not more than three
years, or both. (E. S., s. 5403.)

U. S. v. Goldberg, 7 Biss., 175, 178, Groat, 30 Fed. Rep., 764; Mc Inerney

25 Fed. Cas., 1342; Mackin v. U. v. U. S., 143 Fed. Rep., 729; People

S., 23 Fed. Rep., 334; Ex parte Porkins, v. Wise, 2 How. (N. S.), 92; Ayres

29 Fed. Rep., 900, 912; U. S. v. De v. Covill, 18 Barb., 263.

§ 129. Destroying records by officer in charge. — Who-
ever, having the custody of any record, proceeding, map,
book, document, paper, or other thing specified in the
preceding section, shall wilfully and unlawfully conceal,
remove, mutilate, obliterate, falsify, or destroy any such
record, proceeding, map, book, document, paper, or thing,
shall be fined not more than two thousand dollars, or
imprisoned not more than three years, or both; and shall
moreover forfeit his office and be forever afterward dis-
qualified from holding any office under the Government
of the United States. (R.* S., s. 5408.)

§ 130. Forging signature of judge, etc. — Whoever
shall forge the signature of any judge, register, or other
officer of any court of the United States, or of any Ter-
ritory thereof, or shall forge or counterfeit the seal of
any such court, or shall knowingly concur in using any
such forged or counterfeit signature or seal, for the pur-
pose of authenticating any proceeding or document, or
shall tender in evidence any such proceeding or document
with a false or counterfeit signature of any such judge,
register, or other officer, or a false or counterfeit seal
of the court, subscribed or attached thereto, knowing such
signature or seal to be false or counterfeit, shall be fined
not more than five thousand dollars and imprisoned not
more than five years. (R. S., s. 5419.)

§ 131. Bribery of a judge or judicial officer. — Who-
ever, directly or indirectly, shall give or offer, or cause to

810 Federal Criminal Law Procedure.

be given or offered, any money, property, or value of any
kind, or any promise or agreement therefor, or any other
bribe, to any judge, judicial officer, or other person au-
thorized by any law of the United States to hear or deter-
mine any question, matter, cause, proceeding, or contro-
versy, with intent to influense his action, vote, opinion, or
decision thereon, or because of any such action, vote,
opinion, or decision, shall be fined not more than twenty
thousand dollars, or imprisoned not more than fifteen
years, or both; and shall forever be disqualified to hold
anv office of honor, trust, or profit under the United
States. (R. S., s. 5449.)

§ 132. Judge or judicial officer accepting a bribe, etc.
— Whoever, being a judge of the United States, shall in
any wise accept or receive any sum of money, or other
bribe, present, or reward, or any promise, contract, obli-
gation, gift, or security for the payment of money, or
for the delivery or conveyance of anything of value,
with the intent to be influenced thereby in any opinion,
judgment, or decree in any suit, controversy, matter, or
cause depending before him, or because of any such
opinion, ruling, decision, judgment, or decree, shall be
fined not more than twenty thousand dollars, or im-
prisoned not more than fifteen years, or both; and shall
be forever disqualified to hold any office of honor, trust,
or profit under the United States. (R. S., s. 5499.)

§ 133. Juror, referee, master, etc., or judicial officer,
etc., accepting bribe. — Whoever, being a juror, referee,
arbitrator, appraiser, assessor, auditor, master, receiver,
United States commissioner, or other person authorized
by any law of the United States to hear or dotejinine any
(|iiestion, matter, cause, controversy, or proceeding, shall
ask, receive, or agree to receive, any money, property, or
value of any kind, or any promise or agreement therefor,
upon any agreement or understanding that his vote,
opinion, action, judgment, or decision, shall be influenced
thereby, or because of any such vote, opinion, action,
judgment, or decision, shall be fined not more than two
thousand dollars, or imprisoned not more than two years,
or both.

Offenses Against Public Justice. 811

§ 134. Witness accepting bribe. — Whoever, being, or
about to be, a witness upon a trial, bearing, or other pro-
ceeding, before any court or any officer authorized by
the laws of the United States to hear evidence or take
testimony, shall receive, or agree or offer to receive, a
bribe, upon any agreement or understanding that his
testimony shall be influenced thereby, or that he will
absent himself from the trial, hearing, or other proceed-
ing, or because of such testimony, or such absence, shall
be fined not more than two thousand dollars, or im-
prisoned not more than two years or both.

§ 135. Intimidation or corruption of witness, or grand
or petit juror, or officer. — Whoever corruptly, or by
threats or force, or by any threatening letter- or com-
munication, shall endeavor to influence, intimidate, or
impede any witness, in any court of the United States
or before any United States commissioner or officer act-
ing as such commissioner, or any grand or petit juror,
or officer in or of any court of the United States, or officer
who may be serving at any examination or other pro-
ceeding before any United States commissioner or officer
acting as such commissioner, in the discharge of his duty,
or who corruptly or by threats or force, or by any threat-
ening letter or threatening communication, shall influence,
obstruct, or impede, or endeavor to influence, obstruct, or
impede, the due administration of justice therein, shall
be fined not more than one thousand dollars, or impris-
oned not more than one year or both. (R. S., ss. 5399,
5404.)

Fx parte Robinson, 19 Wall., 505; 39 Fed. Rep.. 603; In re Neagle, 39

In re Savin, 131 U. S., 267; In re Fed. Rep., 833; U. S. v. Thomas, 47

Neagle, 135 U. S., 63; Petibone v. Fed. Rep., 807; U. S. v. Armstrong 59

U. S., 148 U. S., 197; U. S. v. Memphis Fed. Rep., 568; In re Brule, 71 ^ert.

R. Co., 6 Fed. Rep., 237; U. S. v. Kil- Rep., 943; U. S. v. McLeod, 119 Fed.

Patrick, 16 Fed. Rep., 765; Sharon v. Rep., 416; U. S. v. Bittmger, 15 Am.

Hill, 24 Fed. Rep., 726; U. S. v. L. Reg. (N. S.), 49.
Polite. 35 Fed. Rep., 58; U. S. v. Kee,

§ 136. Conspiracy to intimidate party, witness, or
juror. — If two or more persons conspire to deter by force,
intimidation, or threat, any party or witness in any court
of the United States, or in any examination before United
States commissioner or officer acting as such commis-
sioner, from attending such court or examination, or from
testifying to any matter pending therein, freely, fully,

812 Federal Criminal Law Procedure.

and truthfully, or to injure such party or witness in his
person or property on account of his having so attended
or testified, or to* influence the verdict, presentment, or
indictment of any grand or petit juror in any such court,
or to injure such juror in his person or property on ac-
count of any verdict, presentment, or indictment lawfully
assented to by him, or on account of his being or having
been such juror, each of such persons shall be fined not
more than five thousand dollars, or imprisoned not more
than six years, or both. (R. S., s. 5406.)

Todd v. U. S., 158 U. S., 278; U.
S. v. Price, 96 Fed. Rep., 960.

§ 137. Attempt to influence juror.— Whoever shall at-
tempt to influence the action or decision of any grand or
petit juror of any court of the United States upon any
issue or matter pending before such juror, or before the
jury of which he is a member, or pertaining to his duties,
by "writing or sending to him any letter or any com-
munication, in print or writing, in relation to such issue
or matter, shall be fined not more than one thousand dol-
lars, or imprisoned not more than six months, or both. (R.
S., s. 5405.)

U. S. v. Kilpatrick, 16 Fed. Rep..
765.

§ 138. Allowing prisoner to escape. — Whenever any
marshal, deputy marshal, ministerial officer, or other per-
son has in his custody any prisoner by virtue of process
issued under the laws of the United States by any court,
judge, or commissioner, and such marshal, deputy mar-
shal ministerial, or other person voluntarily suffers such
prisoner to escape, he shall be fined not more than two
thousand dollars, or imprisoned not more than two years,
or both. (R. S., s. 5409.)

^ 139. Application of preceding section. — The pre-
ceding section shall be construed to apply not only to
cases in which the prisoner who escaped was charged
or found guilty of an offense against the laws of the
United States, and to cases in which the prisoner may
be in custody charged with offenses against any foreign
government with which the United States have treaties
dt' extradition, but also to cases in which the prisoner
may l»c held in custody for removal to or from the Philip-

Offenses Against Public Justice. 813

pine Islands as provided by law. (R. S., s. 5410. 6 Feb.,
1905, 33 Stat., L., 698, c. 454, s. 2.)

§ 140. Obstructing process or assaulting officer. —
Whoever shall knowingly and willfully obstruct, resist, or
oppose any officer of the United States, or other
person duly authorized, in serving, or attempting
to serve or execute, any mesne process or war-
rant, or any rule or order, or any other legal
or judicial writ or process of any court of the
United States, or United States commissioner, or shall
assault, beat, or wound any officer or other person duly
authorized, knowing him to be such officer, or other per-
son so duly authorized, in serving or executing any such
writ, rule, order, process, warrant, or other legal or judi-
cial writ or process, shall be fined not more than three
hundred dollars and imprisoned not more than one year.
(R. S., s. 5398.)

U. S. v. Bachelder, 2 Gall., 15, 24 Dill., 212, 27 Fed. Cas., 1161; U. S.

Fed. Cas., 931; U. S. v. Fears, 3 Wood, v. Slaymaker, 4 Wash., 169, 27 Fed.

510, 25 Fed. Cas., 1053; U. b. \ Cas., 1127; U. S. v. Stowell, Curt., 153,

Hudson, 1 Haskell, 527, 28 Fed. Cas.. 27 Fed. Cas., 1350; U. S. v. Tinkle-

406; U. S. v. Keen, 5 Mason, 453, 26 paugh, 3 Blatch., 425, 28 Fed. Cas.,

Fed. Cas., 693; U. S. v. Lowery, 2 193; U. S. v. Huff, 13 Fed. Rep., 630,

Wash., 169, 26 Fed. Cas., 1008; U. S. 639; U. S. v. Martin, 17 Fed. Rep., 150;

v. Lukins, 3 Wash., 335, 26 Fed. Cas.. U. S. v. Terry, 41 Fed. Rep., 771;

1011; U. S. v. McDonald, S Biss., 439. Blake v. U. S., 71 Fed. Rep., 286;

26 Fed. Cas., 1074; U. S. v. Smith, 1 U. S. v. Mullin, 71 Fed. Rep., 682.

§ 141. Rescuing, etc., prisoner; concealing, etc., per-
son for whom warrant has issued. — Whoever shall res-
cue or attempt to rescue, from the custody of any officer
or person lawfully assisting him, any person arrested
upon a warrant or other process issued under the pro-
visions of any law of the United States, or shall, directly
or indirectly, aid, abet, or assist any person so arrested
to escape from the custody of such officer or other per-
son, or shall harbor or conceal any person for whose
arrest a warrant or process has been so issued, so as to
prevent his discovery and arrest, after notice or knowl-
edge of the fact that a warrant or process has been issued
for the apprehension of such person, shall be fined not
more than one thousand dollars, or imprisoned not more
than six months, or both. (R. S., ss. 5401, 5516.)

§ 142. Rescue at execution. — Whoever, by force, shall
set at liberty or rescue any person found guilty in any
court of the United States of any capital crime, while

814 Federal Criminal Law Procedure.

going to execution or during execution, shall be fined
not more than twenty-five thousand dollars and impris-
oned not more than twenty-five years. (R. S., s. 5400.)

§ 143. Rescue of prisoner. — Whoever, by force, shall
set at liberty or rescue any person who, before conviction,
stands committed for any capital crime; or whoever, by
force, shall set at liberty or rescue any person committed
for or convicted of any offense other than capital, shall be
fined not less than five hundred dollars and imprisoned
not more than one year. (R. S., s. 5401.)

§ 144. Rescue of body of executed offender. — Who-
ever, by force, shall rescue or attempt to rescue, from
the custodv of any marshal or his officer, the dead bodv
of an executed offender, while it is being conveyed to a
place of dissection, as provided by section three hundred
and thirty-one hereof, or by force shall rescue or attempt
to rescue such body from the place where it has been de-
posited for dissection in pursuance of that section, shall
be fined not more than one hundred dollars, or imprisoned
not more than one year, or both. (R. S., s. 5402.)

§ 145. Extortion by internal-revenue informers. —
Whoever shall, under a threat of informing, or as a
consideration for not informing, against any violation
of any law of the United States, demand or receive any
money or other valuable thing, shall be fined not more
than two thousand dollars, or imprisoned not more than
one year, or both. (R. S., s. 5484.)

§ 146. Misprision of felony. — Whoever, having knowl-
edge of the actual commission of the crime of murder
or other felony cognizable by the courts of the United
States, conceals and does not as soon as may be disclose
and make known the same to some one of the judges or
other persons in civil or military authority under the
dollars, or imprisoned not more than three years, or both.
United States, shall be fined not more than five hundred
(R. S., s. 5390.)

CHAPTER SEVEN.

OFFENSES AGAINST THE CURRENCY, COINAGE, ETC.

§ 147. "Obligation or other security of the United States" defined.

148. Forging or counterfeiting United States securities.

149. Counterfeiting national-bank notes.

150. Using plates to print notes without authority, etc.

151. Passing, selling, concealing, etc., Gorged obligations.

152. Taking impressions of tools, implements, etc.

153. Having in possession unlawfully such impressions.

154. Buying, selling, or dealing in forged bonds, notes, etc.

155. Secreting or removing tools or material used for printing

bonds, notes, stamps, etc.

156. Counterfeiting notes, bonds, etc., of foreign governments.

157. Passing such forged notes, bonds, etc.

158. Counterfeiting notes of foreign banks.

159. Passing such counterfeit bank notes.

160. Having in possession such forged notes, bonds, etc.

161. Having unlawfully in possession or using plates for such notes,

bonds, etc.

162. Connecting parts of different instruments.

163. Counterfeiting gold or silver coins or bars.

164. Counterfeiting minor coins.

165. Falsifying, mutilating, or lightening coinage.

166. Debasement of coinage by officers of the mint.

167. Making or uttering coins in resemblance of money.

168. Making or issuing devices of minor coins.

169. Counterfeiting, etc., dies for coins of United States

170. Counterfeiting, etc., dies for foreign coins.

171. Making, importing, or having in possession tokens, prints,

etc., similar to United States or foreign coins.

172. Counterfeit obligating securities, coins, or material for counter-

feiting, to be forfeited.

173. Issuance of search warrant for suspected counterfeits, etc.,

forfeiture.

174. Circulating bills of expired corporations.

175. Imitating national-bank notes with printed advertisements

thereon.

176. Mutilating or defacing national-bank notes.

177. Imitating United States securities or printing business cards

on them.

178. Notes of less than one dollar not to be issued.

§ 147. "Obligation or other security of the United
States." denned. — The words "obligation or other se-

(815)

816 Federal Criminal Law Procedure.

curity of the United States" shall be held to mean all
bonds, certificates of indebtedness, national bank cur-
rency, coupons, United States notes, Treasury notes, gold
certificates, silver certificates, fractional notes, certifi-
cates of deposit, bills, checks, or drafts for money, drawn
by or upon authorized officers of the United States,
stamps and other representatives of value, of whatever
denomination, which have been or may be issued under
any act of Congress. (R. S., s. 5413. 28 Feb., 1878, 20
Stat. L., 26 c. 20, s. 3; 1 Supp., 152.

U. S. v. Bennett, 17 Blatch., 357, Houghton, 7 Fed. Rep., 657, 8 Fed.
24 Fed. Cas., 1107; U. S. v. Trout, 4 Rep., 897; U. S. v. Albert, 45 Feu.
Biss., 105, 28 Fed. Cas., 223; Ex parte Rep., 552.

§ 148. Forging or counterfeiting United States secu-
rities.— Whoever, with intent to defraud, shall falsely
make, forge, counterfeit, or alter any obligation or other
security of the United States shall be fined not more than
five thousand dollars and imprisoned not more than fif-
teen years. (R. S., s. 5414.)

U. S. v. Coppersmith 4 Fed. Rep.. S. v. Owens, 37 Fed. Rep., 112; U.

198; U. S. v. Field, 16 Fed. Rep., 778; S. v. Albert, 45 Fed. Rep., 552; Neall

U. S. v. Crecilius, 34 Fed. Rep., 30; v. U. S., 118 Fed. Rep. 699.
U. S. v. Jolly, 37 Fed. Rep., 108; U.

§ 149. Counterfeiting national-bank notes. — Whoever
shall falsely make, forge, or counterfeit, or cause or pro-
cure to be made, forged, or counterfeited, or shall will-
ingly aid or assist in falsely making, forging, or counter-
feiting, any note in imitation of, or purporting to be an
imitation of, the circulating notes issued by any bank-
ing association now or hereafter authorized and acting
under the laws of the United States; or whoever shall
pass, utter, or publish, or attempt to pass, utter, or pub-
lish, any false, forged, or counterfeited note, purporting
to be issued by any such association doing a banking
business, knowing the same to be falsely made, forged, or
counterfeited; or whoever shall falsely alter, or cause or
procure to be falsely altered, or shall willingly aid or as-
sist in falsely altering, any such circulating notes, or shall
pass, utter, or publish, or attempt to pass, utter or pub-
lish as true, any falsely altered or spurious circulating
note issued, or purporting to have been issued, by any
such hanking association, knowing the same to be falsely
altered or spurious, shall be fined not more than one

Offenses Against the Currency, Coinage, Etc. 817

thousand dollars and imprisoned not more than fifteen
years. (R. S., s. 5415.)

U. S. v. Bennett, 17 Blatch., 357, 24 Fed. Rep., 751; Logan v. U. S., 123

Fed. Cas., 1107; Ex parte Houghton, Fed. Rep., 291; Thompson v. U. S.,

7 Fed. Rep., 657; U. S. v. Crecilius. 144 Fed. Rep., 14; Gallagher v. U.

34 Fed. Rep., 30; U. S. v. Owens, 37 S., 144 Fed. Rep., 87.
Fed. Rep., 112; U. S. v. Wilson, 44

§ 150. Using plates to print notes without authority,
etc. — Whoever, having control, custody, or possession of
any plate, stone, or other thing, or any part thereof, from
which has been printed, or which may be prepared by di-
rection of the Secretary of the Treasury for the purpose
of printing, any obligation or other security of the Unit-
ed States, shall use such plate, stone, or other thing, or
any part thereof, or knowingly suffer- the same to be used
for the purpose of printing any such or similar obliga-
tion or other security, or any part thereof, except as may
be printed for the use of the United States by order of
the proper officer thereof; or whoever by any way, art,
or means shall make or execute, or cause or procure to
be made or executed, or shall assist in making or execut-
ing any plate, stone, or other thing in the likeness of any
plate designated for the printing of such obligation or
other security; or whoever shall sell any such plate,
stone, or other thing, or bring into the United States or
any place subject to the jurisdiction thereof, from any
foreign place, any such plate, stone, or other thing, ex-
cept under the direction of the Secretary of the Treasury
or other proper officer, or with any other intent, in either
case, than that such plate, stone, or other thing be used
for the printing of the obligations or other securities of
the United States; or whoever shall have in his control,
custody, or possession any plate, stone, or other thing in
any manner made after or in the similitude of any plate,
stone, or other thing, from which any such obligation or
other security has been printed, with intent to use such
plate, stone, or other thing, or to suffer the same to be
used in forging or counterfeiting any such obligation or
other security, or any part thereof; or whoever shall have
in his possession or custody, except under authority from
the Secretary of the Treasury or other proper officer, any
obligation or other security made or executed, in whole
or in part, after the similitude of any obligation or other

818 Fedeeal. Ceiminal Law Peocedube.

security issued under the authority of the United States,
with intent to sell or otherwise use the same; or whoever
shall print, photograph, or in any other manner makes or
execute, or cause to be printed, photographed, made, or
executed, or shall aid in printing, photographing, mak-
ing, or executing any engraving, photograph, print, or
impression in the likeness of any such obligation or other
security, or any part thereof, or shall sell any such en-
graving, photograph, print, or impression, except to the
United States, or shall bring into the United States or
any place subject to the jurisdiction thereof, from any
foreign place any such engraving, photograph, print, or
impression, except by direction of some proper officer of
the United States; or whoever shall have or obtain in his
control or possession, after a distinctive paper has been
adopted by the Secretary of the Treasury for the obliga-
tions and other securities of the United States, any simi-
lar paper adapted to the making of any such obligation
or other security, except under the authority of the Sec-
retary of the Treasury or some other proper officer of the
United States, shall be fined not more than five thousand
dollars, or imprisoned not more than fifteen vears, or
both. (R. S., s. 5430.)

Rx parte Holcomb, 2 Dill., 392, 12 Fed. Rep., 624; U. S. v. Fitzgerald, 91

Fed. Cas., 328; U. S. v. Williams, 14 Fed. Rep., 374; U. S. v. Barnett, 111

Fed. Rep., 550; Re Wilson, 18 Fed. Fed. Rep., 369; U. S. v. Conners, 111

Rep., 33; U. S. v. Smith, 40 Fed. Rep., Fed. Rep., 734; U. S. v. Pitts., 112

755; U. S. v. Sprague, 11 Biss., 376, Fed. Rep., 522; Krakowski v. U. S.,

48 Fed. Rep., 828; U. S. v. Stevens, 161 Fed. Rep., 88.
52 Fed. Rep., 120; U. S. v. Kuhl, 85

§ 151. Passing, selling, concealing, etc., forged obli-
gations.— "Whoever, with intent to defraud, shall pass,
utter, publish, or sell, or attempt to pass, utter, publish,
or sell, or shall bring into the United States or any place
subject to the jurisdiction thereof, with intent to pass,
publish, utter, or sell, or shall keep in possession or con-
ceal with like intent, any falsely made, forged, counter-
feited, or altered obligation or other security of the Unit-
ed States, shall be fined not more than five thousand dol-
lars and imprisoned not more than fifteen vears. (R. S.
- 5431.)

U. S. v. Marcus, 53 U. S., 784; U. Cas., 80; U. S. v. Trout, 4 Biss., 105,

S. v. Carll, 105, U. S., 611: Dunbar 28 Fed. Cas., 223; U. S. v. Williams,

v. U. S., 156 U. S.. 185; U. S. v. 4 Biss., 302, 28 Fed. Cas., 635; U. S.

Nelson, 1 Abb. U. S., 135, 27 Fed. v. Jolly, 37 Fed. Rep., 108; U. S. v.

Offenses Against the Currency, Coinage, Etc. 819

Owens, 37 Fed. Rep., 112, U. S. v. Howell, 64 Fed. Rep., 110; U. S. v.

Clarke, 38 Fed. Rep., 500; U. S. v. Tarants, 74 Fed. Rep., 219; U. S. v.

Holmes, 40 Fed. Rep., 750; U. S. v. Beebe, 149 Fed. Rep., 618.

Albert, 45 Fed. Rep., 552; U. S. v.

§ 152. Taking impressions of tools, implements, etc.
Whoever, without authority from the United States, shall
take, procure, or make, upon lead, foil, wax, plaster,
paper, or any other substance or material, an impression,
stamp, or imprint of, from, or by the use of any bedplate,
bedpiece, die, roll, plate, seal, type or other, tool, imple-
ment, instrument, or thing used or fitted or intended to
be used in printing, stamping, or impressing, or in mak-
ing other tools, implements, instruments, or things to be
used or fitted or intended to be used in printing, stamp-
ing, or impressing any kind or description of obligation
or other security of the United States now authorized or
hereafter to be authorized by the United States, or cir-
culating note or evidence of debt of any banking associa-
tion under the laws thereof, shall be fined not more than
five thousand dollars or imprisoned not more than ten
years, or both. (R. S., s. 5432.)

U. S. v. Bennett, 17 Blatch., 357, 24
Fed. Cas., 1107.

§ 153. Having in possession unlawfully such impres-
sions.— Whoever, with intent to defraud, shall have in his
possession, keeping, custody, or control, without author-
ity from the United States, any imprint, stamp, or im-
pression, taken or made upon any substance or material
whatsoever, of any tool, implement, instrument, or thing,
used, or fitted or intended to be used, for any of the pur-
poses mentioned in the preceding section; or whoever,
with intent to defraud, shall sell, give, or deliver any such
imprint, stamp, or impression to any other person, shall
be fined not more than five thousand dollars, or imprison-
ed not more than ten years, or both. (R. S., s. 5433.)

§ 154. Buying, selling, or dealing in forged bonds,
notes, etc. — Whoever shall buy, sell, exchange, transfer,
receive, or deliver, any false, forged, counterfeited, or
altered obligation or other security of the United States,
or circulating note of any banking association organized
or acting under the laws thereof, which has been or may
hereafter be issued by virtue of any act of Congress, with
the intent that the same be passed, published, or used as

820 Federal Criminal Law Procedure.

true and genuine, shall be fined not more than five thous-
and dollars, or imprisoned not more than ten years, or
both. (R. S., s. 5434.)

§ 155. Secreting or removing tools or material used
for printing bonds, notes, stamps, etc. — Whoever, without
authority from the United States, shall secrete within,
embezzle, or take and carry away from any building,
room, office, apartment, vault, safe, or other place where
the same is kept, used, employed, placed, lodged, or de-
posited by authority of the United States, any bedpiece,
bedplate, roll, plate, die, seal, type, or other tool, imple-
ment or thing used or fitted to be used in stamping or
printing or in making some other tool or implement used
or fitted to be used in stamping or printing, any kind or
description of bond, bill, note, certificate, coupon, post-
tage stamp, revenue stamp, fractional currency note,
or other paper, instrument, obligation, devise, or doc-
ument, now or hereafter authorized by law to be
printed, stamped, sealed, prepared, issued, uttered, or
put in circulation on behalf of the United States; or
whoever, without such authority, shall so secrete, em-
bezzle, or take and carry away any paper, parchment,
or other material prepared and intended to be used in
the making of any such papers, instruments, obliga-
tions, devices, or documents; or whoever, without such
authority, shall so secrete, embezzle, or take and carry
away any paper, parchment, or other material printed
or stamped, in whole or part, and intended to be pre-
pared, issued, or put in circulation on behalf of the
United States as one of the' papers, instruments, or ob-
ligations hereinbefore named, or printed or stamped, in
whole or part, in the similitude of any such paper, instru-
ment, or obligation, whether intended to issue or put the
same in circulation or not, shall be fined not more than
five thousand dollars, or imprisoned not more than ten
years, or both. (R. S., s. 5453.)

.: L56. Counterfeiting notes, bonds, etc., of foreign
governments. — Whoever, within the United States or any
place subject to the jurisdiction thereof, with intent to
defraud, shall falsely make, alter, forge, or counterfeit
any bond, certificate, obligation, or other security in imi-

Offenses Against the Currency, Coinage, Etc. 821

tation of, or purporting to be an imitation of, any bond,
certificate, obligation, or other security of any foreign
government, issued or put fourth under the authority of
such foreign government, or any treasury note, bill or
promise to pay issued by such foreign government, and
intended to circulate as money, either by law, order, or de-
cree of such foreign government; or whoever shall cause
or procure to be so falsely made, altered, forged, or count-
erfeited, or shall knowingly aid or assist in making, al-
tering, forging, or counterfeit ig, any such bond, certifi-
cate, obligation, or other security, or any such treasury
note, bill, or promise to pay, intended as aforesaid to cir-
culate as money, shall be fined not more than five thou-
sand dollars and imprisoned not more than five years.
(16 May, 1884, 23 Stat. L., 22, c. 52, s. 1; 1 Supp., 429.)

U. S. v. Arjona, 120 U. S., 479; U. Rep., 200; Bliss v. U. S. 105 Fed.
S. v. White, 25 Fed. Rep., 716, 27 Fed. Rep., 508.

§ 157. Passing such forged notes, bonds, etc. — Who-
ever, within the United States or any place subject to
the jurisdiction thereof, knowingly and with intent to de-
fraud, shall utter, pass, or put off, in payment or negotia-
tion, any false, forged, or counterfeited bond, certificate,
obligation, security, treasury note, bill, or promise to pay,
mentioned in the section last preceding, whether the same
was made, altered, forged, or counterfeited within the
United States or not, shall be fined not more than three
thousand dollars and imprisoned not more than three
years. (16 May 1884, 23 Stat. L., 23, c. 52, s. 2; 1 Supp.
429.)

§ 158. Counterfeiting notes on foreign banks. — Who-
ever, within the United States or any place subject to the
jurisdiction thereof, with intent to defraud, shall false-
ly make, alter, forge or counterfeit, or cause or procure
to be so falsely made, altered, forged, or counterfeited,
or shall knowingly aid and assist in the false making, al-
tering, forging, or counterfeiting of any bank note or bill
issued by a bank or corporation of any foreign country,
and intended by the law or usage of such foreign country
to circulate as money, such bank or corporation being
authorized by the laws of such country, shall be fined not
more than two thousand dollars and imprisoned not more

822 Federal Criminal Law Procedure.

than two years. (16 May, 1884, 23 Stat. L., 23, c. 52, s. 3;
1 Supp., 429.)

U. S. v. Arjona, 120 U. S., 479.

§ 159. Passing such counterfeit bank notes. — Who-
ever, within the United States or any place subject to the
jurisdiction thereof, shall utter, pass, put off, or tender
in payment, with intent to defraud, any such false, forged
altered, or counterfeited bank note or bill, as mentioned in
the preceding section, knowing the same to be so false,
forged, altered, and [or] counterfeited, whether the same
was made, forged, altered, or counterfeited within the
United States or not, shall be fined not more than one
thousand dollars and imprisoned not more than one vear.
(16 May, 1884, 23 Stat, L., 23, c. 52, s. 4; 1 Supp., 429.)

§ 160. Having in possession such forged notes, bonds,
etc. — Whoever, within the United States or any place
subject to the jurisdiction thereof, shall have in his pos-
session any false, forged, or counterfeit bond, certificate,
obligation, security. Treasury note, bill, promise to pay,
bank note, or bill issued by a bank or corporation of any
foreign country, with intent to utter, pass, or put off the
same, or to deliver the same to any other person with
intent that the same may thereafter be uttered, passed,
or put off as true, or shall knowingly deliver the same to
any other person with such intent, shall be fined not more
than one thousand dollars and imprisoned not more than
one year. (16 May, 1884, 23 Stat. L., 23, c. 52, s. 5; 1
Supp., 429.)

§ 161. Having unlawfully in possession or using
plates for such notes, bonds, etc. — Whoever, within the
United States or any place subject to the jurisdiction
thereof, except by lawful authority, shall have control,
custody, or possession of any plate, stone, or other thing,
or any part thereof, from which has been printed or may
be printed any counterfeit note, bond, obligation, or other
security, in whole or in part of any foreign government,
bank, or corporation, or shall use such plate, stone, or
other thing, or knowingly permit or suffer the same to be
used in counterfeiting such foreign obligations, or any
pari thereof; or whoever shall make or engrave, or cause
or procure to be made or engraved, or shall assist in mak-

Offenses Against the Currency, Coinage, Etc. 823

ing or engraving, any plate, stone, or other thing, in the
likeness or similitude of any plate, stone, or other thing
designated for the printing of the genuine issues of the
obligations of any foreign government, bank, or corpora-
tion; or whoever shall print, photograph, or in any other
manner make, execute, or sell, or cause to be printed,
photographed, made, executed, or sold, or shall aid in
printing, photographing, making, executing, or selling,
any engraving, photograph, print, or impression in the
likeness of any genuine note, bond, obligation, or other se-
curity, or any part thereof, of any foreign government,
bank or corporation; or whoever shall bring into the
United States or any place subject to the jurisdiction
thereof, any counterfeit plate, stone, or other thing, or
engraving, photograph, print, or other impressions of
the notes, bonds, obligations or other securities of any
foreign government, bank, or corporation, shall be fined
not more than five thousand dollars, or imprisoned not
more than five vears, or both. (16 May, 1884, 23 Stat.
L., 23, c. 52, s. 6; 1 Supp., 429.)

U. S. v. Arjona, 120 U. S., 479.

§ 162. Connecting parts of different instruments. —
"Whoever shall so place or connect together different parts
of two or more notes, bills, or other genuine instruments
issued under the authority of the United States, or by any
foreign government, or corporation, as to produce one in-
strument with intent to defraud, shall be deemed guilty of
forgery in the same maimer as if the parts so put together
were falsely made or forged, and shall be fined net more
than one thousand dollars, or imprisoned not more than
five years, or both.

§ 163. Counterfeiting gold or silver coins, or bars. —
Whoever shall falsely make, forge, or counterfeit, or cause
or procure to be falsely made, forged, or counterfeited, or
shall willingly aid or assist in falsely making, forging, or
counterfeiting any coin or bars in resemblance or simil-
tude of the gold or silver coins or bars which have been,
or hereafter may be, coined or stamped at the mints and.
assays offices of the United States, or in resemblance or
similitude of any foreign gold or silver coin which by law
is, or hereafter may be, current in the United States, or are

824 Federal Criminal Law Procedure.

in actual use and circulation as money within the United
States; or whoever shall pass, utter, publish, or sell, or at-
tempt to pass, utter, publish, or sell or bring into the Unit-
ed States or any place suject to the jurisdiction thereof,
from any foreign place, knowing the same to be false,
forged, or counterfeit, with intent to defraud any body
politic or corporate, or any person or persons whomso-
ever, or shall have in his possession any such false, forged,
or counterfeited coin or bars, knowing the same to be
false, forged or counterfeited, with intent to defraud any
body politic or corporate or any person or persons whom-
soever, shall be fined not more than five thousand dollars
and imprisoned not more than ten years. (R. S., s. 5457.
16 Jan., 1877, 19 Stat. L., 223, c. 24; 1 Supp., 128.)

U. S. v. Gardner, 10 Pet., 618; U. v. Abrams, 18 Fed. Rep., 823; U. S.,

S. v. Marigold, 9 How.. 560; U. S. v. Russell, 22 Fed. Rep., 390; U. S.

v. Petit. 114 U. S., 429; Statler v. v. Hopkins, 26 Fed. Rep., 443; U. S.

U. S., 157 U. S.. 277; U. S. v. Burns, v. Otey. 31 Fed. Rep., 68; Ex parte

5 McLean, 23, 24 Fed. Cas.. 1313; U. Waterman, 33 Fed. Rep., 29; U. S.

S. v. King. 5 McLean, 208, 26 Fed. v. Owens, 37 Fed. Rep., 112; U. S. v.

Cas.. 787; LT. S. v. Morrow, 4 Wash., Lehman, 39 Fed. Rep., 768; Ex parte

C. C, 733, 26 Fed. Cas.. 1352; U. S. Ceisler, 50 Fed. Rep., 411; U. S. v.

v. Coppersmith, 4 Fed. Rep., 198; U. Howell, 64 Fed. Rep., 110; U. S. v.

S. v. Yates, 6 Fed. Rep., 861; U. S. Bicksler, 1 Mackey, 341.

§ 164. Counterfeiting minor coins. — Whoever shall
falsely make, forge, or counterfeit, or cause or procure to
be falsely made, forged, or counterfeited, or shall willing-
ly aid or assist in falsely making, forging, or counterfeit-
ing any coin in the resemblance or similitude of any of the
minor coins which have been, or hereafter may be, coined
at the mints of the United States; or whoever shall pass,
utter, publish, or sell, or bring into the United States or
any place subject to the jurisdiction thereof, from any for-
eign place, or have in his possession any such false, forg-
et 1, or counterfeited coin, with intent to defraud any per-
son whomsoever, shall be fined not more than one thou-
sand dollars and imprisoned not more than three years.
(R. S., s. 5458.)

Statler v. U. S., 157 U. S., 277; U.
S. v. Bicksler, 1 Mackey, 341.

!()•"). Falsifying, mutilating, or lightening coinage. —
Whoever, fraudulently, by any art, way, or means, shall
deface, mutilate, impair, diminish, falsify, scale, or light-
en, or cause or procure to be fraudulently defaced, muti-
lated, impaired, diminished, falsified, scaled, or lighten-
ed, or willingly nid of assist in fraudulently defacing, mu-

Offenses Against the Currency, Coinage, Etc. 825

tilating, impairing, diminishing, falsifying, scaling, or
lightening, the gold or silver coins which have been, or
which may hereafter be, coined at the mints of the United
States, or any foreign gold or silver coins which are by
law made current or are in actual use or circulation
as money within the United States or in any place sub-
ject to the jurisdiction thereof; or whoever shall pass, ut-
ter, publish, or sell or attempt to pass, utter, publish,
or sell or bring into the United States or any place
subject to the jurisdiction thereof, from any foreign
place, knowing the same to be defaced, mutilated, im-
paired, diminished, falsified, scaled, or lightened, with in-
tent to defraud any person whomsoever, or shall have
in his possession any such defaced, mutilated, impaired,
diminished, falsified, scaled, or lightened coin, know-
ing the same to be defaced, mutilated, impaired, di-
minished, falsified, scaled, or lightened, with intent to
defraud any person whomsoever, shall be fined not more
than two thousand dollars and imprisoned not more
than five years. (R. S., s. 5459. 3 Mar., 1897, 29 Stat. L.,
625, c. 377; 2 Supp., 579.)

U. S. v. Lissner, 12 Fed. Rep., 840.

§ 166. Debasement of coinage by officers of the mint.
— If any of the gold or silver coins struck or coined at
any of the mints of the United States shall be debased, or
made worse as to the proportion of fine gold or fine silver
therein contained, or shall be of less weight or value than
the same ought to be, pursuant to law, or if any of the
scales or weights used at any of the mints or assay offices
of the United States shall be defaced, altered, increased,
or diminished through the fault or connivance of any offi-
cer or person employed at the said mints' or assay offices,
with a fraudulent intent; or if any such officer or person
shall embezzle any of the metals at any time committed to
his charge for the purpose of being coined, or any of the
coins struck or coined at the said mints, or any medals,
coins, or other moneys of said mints or assay offices at any
time committed to his charge, or of which he may have
assumed the charge, every such officer or person who com-
mits any of the said offenses shall be fined not more than
ten thousand dollars and imprisoned not more than ten
years. (R. S., s. 5460.)

826 Federal Criminal Law Procedure.

§ 167. Making or uttering coins in resemblance of
money. — Whoever, except as authorized by law, shall
make or cause to be made, or shall utter or pass, or at-
tempt to utter or pass, any coins of gold or silver or other
metal, or alloys of metals, intended for the use and pur-
pose of current money, whether in the resemblance of coins
of the United States or of foreign countries, or of original
design, shall be fined not more than three thousand dol-
lars, or imprisoned not more than five years, or both. (R.
S., s. 5461.)

Ex parte Holcomb 2 Dill., 392, 12 S. v. Bogart, 9 Ben., 314, 24 Fed. Cas.,
Fed. Cas.. 328; U. S. v. Bejandio, I 1185.
Woods, 294, 24 Fed. Cas., 1076; U.

§ 168. Making or issuing devices of minor coins. —

Whoever, not lawfully authorized, shall make, issue, or
pass, or cause to be made, issued or passed, any coin, card,
token, or device in metal, or its compounds, which may be
intended to be used as money for any one-cent, two-cent,
three-cent, or five-cent piece, now or hereafter authorized
by law, or for coins of equal value, shall be fined not more
than one thousand dollars and imprisoned not more than
five years. (R. S., s. 5462.)

U. S. v. Roussopulous, 95 Fed. Rep.,
977.

§ 169. Counterfeiting, etc., dies for coins of United

States. — Whoever, without lawful authority, shall make,
or cause or procure to be made, or shall willingly aid or
assist in making, any die, hub, or mould, or any part there-
of, either of steel or plaster, or any other substance what-
soever, in the likeness or similitude, as to the design or
the inscription thereon, of any die, hub, or mold desig-
nated for the coining or making of any of the genuine
gold, silver, nickle, bronze, copper, or other coins of the
United States, that have been or hereafter may be coined
at the mints of the United States; or whoever, without
lawful authority, shall have in his possession any such die,
lnil), or mold, or any part thereof, or shall permit the same
to be used for or in aid of the counterfeiting of any of
the coins of the United States hereinbefore mentioned,
shall be fined not more than five thousand dollars and
imprisoned not more than ten years. (10 Feb., 1891, 26
Stat. L., 742, c. 127, s. 1; 1 Supp., 889.)

U. S. v. Roussopulous, 95 Fed. Rep.,
977.

Offenses Against the Currency, Coinage, Etc. 827

§ 170. Counterfeiting, etc., dies for foreign coins. —
Whoever, within the United States or any place subject to
the jurisdiction thereof, without 'lawful authority, shall
make, or cause or procure to be made, or shall willingly
aid or assist in making, any die, hub, or mold, or any part
thereof, either of steel or plaster, or of any other sub-
stance whatsoever, in the likeness or similitude, as to the
design or the inscription thereon, of any die, hub, or mold
designated for the coining of the genuine coin of any for-
eign government; or whoever, without lawful authority,
shall have in his possession any such die, hub, or mold, or
any part thereof, or shall conceal, or knowingly suffer the
same to be used for the counterfeiting of any foreign coin,
shall be fined not more than two thousand dollars, or im-
prisoned not more than five years, or both. (10 Feb., 1891,
26 Stat. L., 742, c. 127, s. 2; 1 Supp., 890.)

§ 171. Making, importing, or having in possession
tokens, prints, etc., similar to United States or foreign
coins. — Whoever, within the United States or any place
subject to the jurisdiction thereof, shall make, or cause or
procure to be made, or shall bring therein, from any for-
eign country, or shall have in possession with intent to
sell, give away, or in any other manner, use the same, any
business or professional card, notice, placard, token, de-
vice, print, or impression, or any other thing whatsoever,
in the likeness or similitude as to desi gn, color, or the in-
scription thereon, of any of the coins of the United States
or of any foreign country that have been or hereafter may
be used as money, either under the authority of the Unit-
ed States or under the authority of any foreign govern-
ment, shall be fined not more than one hundred dollars.
But nothing in this section shall be construed to forbid or
prevent the printing and publishing of illustrations of
coins and medals, or the making of the necessary plates
for the same, to be used in illustrating numismatic and
historical books and journals and the circulars of legiti-
mate publishers and dealers in the same. (10 Feb., 1891
26 Stat. L., 742, c. 127, s. 3; 1 Supp., 890, 3 Mar., 1903, 32
Stat. L., 1223, c. 1015.

Kaye v. U. S., 177 Fed. Rep., 147.

828 Federal Criminal Law Procedure.

§ 172. Counterfeit obligations, securities, coins, or ma-
terial for counterfeiting, to be forfeited. — All counterfeits
of any obligation or other security of the United States or
of any foreign government, or counterfeits of any of the
coins of the United States or of any foreign government,
and all material or apparatus fitted or intended to be used,
or that shall have been used, in the making of any of such
counterfeit obligation or other security or coins hereinbe-
fore mentioned, that shall be found in the possession of
any person without authority from the Secretary of the
Treasury or other proper officer to have the same, shall be
taken possession of by any authorized agent of the Treas-
ury Department and forfeited to the United States, and
disposed of in any manner the Secretary of the Treasury
may- direct. Whoever having the custody or control of
any such counterfeits, material, or apparatus shall fail or
refuse to surrender possession thereof upon request by
any such authorized agent of the Treasury Department,
shall be fined not more than one hundred dollars, or im-
prisoned not more than one year, or both. (10 Feb., 1891,
26 Stat. L., 742, c. 127, s. 4; 1 Supp., 890.)

§ 173. Issue of search warrants in certain cases for
suspected counterfeit obligations, securities, or coin, or
material for counterfeiting, forfeiture. — The several judg-
es of courts established under the laws of the United
States and United States commissionrs may upon proper
<>ath or affirmation, within their respective jurisdictions,
issue a search warrant authorizing any marshal of the
United States, or any other person specifically mentioned
in such warrant, to enter any house, store, building, boat,
or other place named in such warrant, in which there shall
appear probable cause for believeing that the manufac-
ture of counterfeit money, or the concealment of coun-
terfeit money, or the manufacture or concealment of
counterfeit obligations or coins of the United States or
of any foreign government, or the manufacture or con-
cealmenl of dies, hubs, molds, plates, or other things
fitted or intended to be used for the manufacture of
counterfeit money, coins, or obligations of the United
States or of any foreign government, or of any bank
doing business under the authority of the United States

Offenses Against the Currency, Coinage, Etc. 829

or of any State or Territory thereof, or of any bank
doing business under the authority of any foreign gov-
ernment, or of any political division of any foreign
government, is being carried on or practiced, and there
search for any such counterfeit money, coins, dies,
hubs, molds, plates, and other things, and for any such ob-
ligations, and if any such be found, to seize and secure the
same and to make return thereof to the proper authority;
and all such counterfeit money, coins, dies, hubs, molds,
plates, and other things, and all such counterfeit obliga-
tions so seized shall be forfeited to the United States. (10
Feb., 1891, 26 Stat. L., 743, c. 127, s. 5; 1 Supp., 890.)

§ 174. Circulating bills of expired corporations. — In
all cases where the charter of any corporation which has
been or may be created by act of Congress has expired or
may hereafter expire, if any director, officer, or agent of
the corporation, or any trustee thereof, or any agent of
such trustee, or any person having in his possession or
under his control the property of the corporation for the
purpose of paying or redeeming its notes and obligations,
shall knowingly issue, reissue, or utter as money, or in any
other way knowingly put in circulation any bill, note,
check, draft, or other security purporting to have been
made by any such corporation whose charter has expired,
or by any officer thereof, or purporting to have been made
under authority derived therefrom, or if any person shall
knowingly aid in any such act, he shall be fined not more
than ten thousand dollars, or imprisoned not more than five
years, or both. But nothing herein shall be construed to
make it unlawful for any person, not being such director,
officer, or agent of the corporation, or any trustee thereof,
or any agent of such trustee, or any person having in his
possession or under his control the property of the cor-
poration for the purpose hereinbefore set forth, who has
received or may hereafter receive such bill, note, check,
draft, or other security, bona fide and in the ordinarv
transactions of business, to utter as money or otherwise
circulate the same. (R. S., s. 5437.)

§ 175. Imitating national banking notes with printed
advertisements, thereon. — It shall not be lawful to design,
engrave, print, or in any manner make or execute, or to

830 Federal Criminal Law Procedure.

utter, issue, distribute, circulate, or use any business or
professional card, notice, placard, circular, handbill, or
advertisement in the likeness or similitude of any circu-
lating note or other obligation or security of any banking
association organized or acting under the laws of the Unit-
ed States which has been or may be issued under any act
of Congress, or to write, print, or otherwise impress upon
any such note, obligation, or security, any business or pro-
fessional card, notice or advertisement, or any notice or
advertisement of any matter or thing whatever. Whoever
shall violate any provision of this section shall be fined not
more than one hundred dollars or imprisoned not more
than six months, or both. (R. S., s. 5188.)

U. S. v. Laescki, 29 Fed. Rep., 699.

§ 176. Mutilating or defacing national-bank note.—
"Whoever shall mutilate, cut, deface, disfigure, or perfo-
rate with holes, or unite or cement together, or do any
other thing to any bank bill, draft, note, or other evidence
of debt, issued by any national banking association, or
shall cause or procure the same to be done, with intent to
render such bank bill, draft, note, or other evidence of
debt unfit to be reissued by said association, shall be fined
not more than one hundred dollars, or imprisoned not
more than six months, or both. (R. S., s. 5189.)

§ 177. Imitating United States securities or print-
ing business, cards on them. — It shall not be lawful to de-
sign, engrave, print, or in any manner make or execute or
to utter, issue, distribute, circulate, or use, any business
or professional card, notice, placard, circular, handbill, or
advertisement, in the likeness or similitude of any bond,
certificate of indebtedness, certificate of deposit, coupon,
United States note, Treasury note gold certificate, silver
certificate, fractional note, or other obligation or security
of the United Slates which has been or may be issued un-
der or authorized by any act of Congress heretofore passed
or which may hereafter be passed; or to write, print, or
otherwise impress upon any such instrument, obligation,
or security, any business or professional card, notice, or
advertisement, or any notice or advertisement, or any
matter or thing whatever Whoever shall violate any

Offenses Against the Currency, Coinage, Etc. 831

provision of this section shall be fined not more than five
hundred dollars. (R. S., s. 3708.)

U. S. v. Laescki, 29 Fed. Rep., 699.

§ 178. Notes of less than one dollar not to be issued. —
No person shall make, issue, circulate, or pay out any
note, check, memorandum, token, or other obligation for
a less sum than one dollar, intended to circulate as
money or to be received or used in lieu of" lawful money
of the United States; and every person so offending shall
be fined not more than five hundred dollars, or impris-
oned not more than six months, or both. (R. S., s. 3583.)

CHAPTER EIGHT.

OFFENSES AGAINST THE POSTAL SERVICE.

§ 179. Conducting post-office without authority.

180. Illegal carrying of mail by carriers and others.

181. Conveyance of mail by private express forbidden.

182. Transporting persons unlawfully conveying mail.

183. Sending letters by private express.

184. Conveying of letters over post routes.

185. Carrying letters out of the mail on board of vessel.

186. When conveying letters by private persons is lawful.

187. Wearing uniform of carrier without authority.

188. Vehicles, etc., claiming to be mail carriers.

189. Injuring mail bags, etc.

190. Stealing post-office property.

191. Stealing or forging mail locks or keys.

192. Breaking into and entering post-office.

193. Unlawfully entering postal car, etc.

194. Stealing, secreting, embezzlement, etc., mail matter or con.

tents.

195. Postmaster or employee of postal service detaining, destroying,

or embezzling letters, etc.

196. Postmaster, etc., detaining or destroying newspapers.

197. Assaulting mail carrier with intent to rob, and robbing mail.

198. Injuring letter boxes or mail matter, assaulting carrier, etc.

199. Deserting the mail.

200. Delivery of letters by master of vessel.

201. Obstructing the mail.

202. Ferryman delaying the mail.

203. Letters carried in a foreign vessel to be deposited in a post-

office.

204. Vessels to deliver letters at post-office; oath.

205. Using, selling, etc., cancelled stamps; removing cancellation

marks from stamps, etc.

206. False returns to increase compensation.

207. Collection of unlawful postage forbidden.

208. Unlawful pledging or sale of stamps.

209. Failure to account for postage and to cancel stamps, etc., by

officials.

210. Issuing money order without payment.

211. Obscene, etc., matter non-mailable.

212. Libelous and indecent wrappers and envelopes.

213. Lottery, gift enterprise, etc., circulars, etc., not mailable.

214. Postmasters not to be lottery agents.
21". Use of mails to promote frauds.

(832)

Offenses Against the Postal Service. 833

216. Fraudulently assuming fictitious address.

217. Poisons and explosives non-mailable.

218. Counterfeiting money orders.

219. Counterfeiting postage stamps.

220. Counterfeiting, etc., foreign stamps.

221. Inclosing higher class in lower class matter.

222. Postmaster illegally approving bond, etc.

223. False evidence as to second-class matter.

224. Inducing or prosecuting false claims.

225. Misappropriation of postal funds or property.

226. Employees not to become interested in contracts.

227. Fraudulent use of official envelopes.

228. Fraudulent increase of weight of mail.

229. Offenses against foreign mail in transit.

230. Omission to take oath.

231. Definitions.

§ 179. Conducting post-office without authority. —
Whoever, without authority from the Postmaster-General
shall set up or profess to keep any office or place of busi-
ness bearing the sign, name, or title of post-office, shall
be fined not more than five hundred dollars. (R. S., s.
3829.)

§ 180. Illegal carrying by carriers and others. — Who-
ever, being concerned in carrying the mail, shall collect,
receive, or carry any letter or packet, or cause or pro-
cure the same to be done, contrary to law, shall be fined
not more than fifty dollars, or imprisoned not more than
thirty days, or both. (R. S., s. 3981.)

4 A. G., 276; Op. A. G. McVeagh,
June 29, 1881.

§ 181. Conveyance of mail by private express forbid-
den.— Whoever shall establish any private express for
the conveyance of letters or packets, or in any manner
cause or provide for the conveyance of the same by regu-
lar trips or at stated periods over any post route which
is or may be established by law, or from any city, town,
or place, to any other city, town, or place, between which
the mail is regularly carried, or whoever shall aid or as-
sist therein shall be fined not more than five hundred
dollars, or imprisoned not more than six months, or both :
Provided, That nothing contained in this section shall be
construed as prohibiting any person from receiving and

834 Federal Criminal Law Procedure.

delivering to the nearest post-office, postal car, or other
authorized depository for mail matter, any mail matter
properly stamped.

R. S., s. 3982. 782; U. S. v. Kochersparger, 9 Am.

3 Mar., 1879, 20 Stat. L., 356, c. 180, L. Reg., 145, 26 Fed. Cas., 803; U.
1; 1 Supp., 245. S. v. Pomeroy, 3 N. Y. Leg. Obs., 143,

1 Mar., 1884, 23 Stat. L., 3, c, 9

27 Fed. Cas., 588; U. S. v. Thompson,

1 Supp., 423 U. S. v. Bromley, 12 9 Law Rep., 451, 28 Fed. Cas., 97;

U. S. v. Express Co., 5 Biss., 91, 28
Fed. Cas., 352; Blackham v. Gresham.
16 Fed. Rep., 609; U. S. v. Easson.
18 Fed. Rep., 609; 4 A. G. Op., 349:
14 A. G. Oo., 152; 19 A. G. Op., 670.

How.. 88; U. S. v. Adams. 1 West, L
J., 315, 24 Fed. Cas., 761; U. S. v
Gray, 3 Hag, Reg. U. S., 227, 26 Fed
Cas., 18; U. S. v. Hal, 9 Am. L. Reg.
232, 26 Fled. Cas., 75; U. S. v. Kim
ball, 7 Law Rep., 32. 26 Fed. Cas.

§ 182. Transporting persons unlawfully conveying
mail. — Whoever, being the owner, driver, conductor,
master, or other person having charge of any stagecoach,
railway car, steamboat, or other vehicle or vessel, shall
knowingly convey or knowingly permit the conveyance
of any person acting or employed as a private express for
the conveyance of letters or packets, and actually in pos-
session of the same for the purpose of conveying them,
contrarv to law, shall be fined not more than one hundred
and fifty dollars. (R. S., s. 3983.)

§ 183. Sending letters by private express. — Whoever
shall transmit by private express or other unlawful
means, or deliver to any agent thereof, or deposit or cause
to be deposited at any appointed place, for the purpose
of being so transmitted, any letter or packet, shall be
fined not more than fifty dollars. (R. S., s. 3984.)

§ 184. Conveying letters over post routes. — Whoever,
being the owner, driver, conductor, master, or other per-
son having charge of any stagecoach, railway car, steam-
boat, or conveyance of any kind which regularly performs
trips at stated periods on any post route, or from any
city, town, or place to any other city, town, or place be-
tween which the mail is regularly carried, and which
shall carry, otherwise than in the mail, any letters or
packets, except such as relate to some part of the cargo
of such steamboat or other vessel, to the current business
of the carrier, or to some article carried at the same time
by the same stage coach, railway car, or other vehicle,
except as otherwise provided by law, shall be fined not
more than fifty dollars. (R. S., s. 3985.)

I A. C,. Op., 159; ibid., 276; 21 A.
<■. Op., 94; U. S. v. U. S. Exp. Co..
5 Hiss., 91; 28 Fed. Cas., 352.

Offenses Against the Postal Service. 835

§ 185. Carrying letters out of the mail on board ves-
sel.— Whoever shall carry any letter or packet on board
any vessel which carries the mail, otherwise than in such
mail, except as otherwise provided by law, shall be fined
not more than fifty dollars, or imprisoned not more than
one month, or both. (R. S., s. 3986.)

§ 186. When conveying of letters by private persons
is lawful. — Nothing in this chapter shall be construed to
prohibit the conveyance or transmission of letters or
packets by private hands without compensation, or by
special messenger emploved for the particular occasion
only. (E. S., s. 3992.)

4 A. G. Op., 159.

§ 187. Wearing uniform of carrier without authority.
— Whoever, not being connected with the letter-carrier
branch of the postal service, shall wear the uniform or
badge which may be prescribed by the Postmaster-Gen-
eral, to be worn by letter carriers, shall be fined not more
than one hundred dollars, or imprisoned not more than
six month, or both. (R. £}., s. 3867.)

§ 188. Vehicles, etc., claiming to be mail carriers. —
It shall be unlawful to paint, print, or in any manner to
place upon or attach to any steamboat or other vessel,
or any car, stagecoach, vehicle, or other conveyance, not
actually used in carrying the mail, the words "United
States Mail," or any words, letters, or characters of like
import; or to give notice, by publishing in any newspaper
or otherwise, that any steamboat or other vessel, or any
car, stage-coach, vehicle, or other conveyance, is used in
carrying the mail, when the same is not actually so used;
and every person who shall violate, and every owner, re-
ceiver, lessee, or managing operator thereof, who shall
cause, suffer, or permit the violation of any provision of
this section, shall be liable, and shall be fined not more
than one thousand dollars, or imprisoned not more than
two years, or both. (R. S., s. 3979.)

§ 189. Injuring mail bags, etc. — Whoever shall tear,
cut, or otherwise injure any mail bag, pouch, or other
thing used or designed for use in the conveyance of the
mail, or shall draw or break any staple or loosen any part
of any lock, chain, or strap attached thereto, with intent

836 Federal Criminal Law Procedure.

to rob or steal any such mail, or to render the same inse-
cure, shall be fined not more than five hundred dollars,
or imprisoned not more than three years, or both. (R.
S., s. 5476.)

§ 190. Stealing post-office property. — Whoever shall
steal, purloin, or embezzle any mail bag or other proper-
ty in use by or belonging to the Post-Office Department,
or shall appropriate any such property to his own or any
other than its proper use, or shall convey away any such
property to the hindrance or detriment of the public serv-
ice, shall be fined not more than two hundred dollars, or
imprisoned not more than three years, or both. (R. S.,
s. 5475.)

U. S. v. Williams, 57 Fed. Rep., 201;
U. S. v. Yennie, 74 Fed. Rep., 211.

§ 191. Stealing or forging mail locks or keys. — Who-
ever shall, steal, purloin, embezzle, or obtain by any false
pretense, or shall aid or assist in stealing, purloining, em-
bezzling, or obtaining by any false pretense, any key suit-
ed to any lock adopted by the Post-Office Department and
in use on any of the mails or bags thereof, or any key
to any lock box, lock drawer, or other authorized recep-
tacle for the deposit or delivery of mail matter; or who-
ever shall knowingly and unlawfully make, forge, or coun-
terfeit, or cause to be unlawfully made, forged, or coun-
terfeited, any such key, or shall have in his possession any
such mail lock or key with the intent unlawfully or im-
properly to use, sell, or otherwise dispose of the same, or
to cause the same to be unlawfully or improperly used,
sold, or otherwise disposed of; or whoever, being engaged
as a contractor or otherwise in the manufacture of any
such mail lock or key, shall deliver or cause to be de-
livered, any finished or unfinished lock or key used or
designed for use by the Department, or the interior part
of any such lock, to any person not duly authorized under
the hand of the Postmaster-General and the seal of the
Post-Office Department, to receive the same, unless the
person receiving it is the contractor for furnishing the
same or engaged in the manufacture thereof in the man-
ner authorized by the contract, or the agent of such man-
ufacturer, shall be fined not more than five hundred dol-

Offenses Against the Postal Service. 837

lars and imprisoned not more than ten years. (R. S., s.
5477.)

§ 192. Breaking into and entering post-office. — Who-
ever shall forcibly break into or attempt to break into
any post-office, or any building used in whole or in part
as a post-office, with intent to commit in such post-office,
or building, or part thereof, so used, any larceny or other
depredation, shall be fined not more than one thousand
dollars and imprisoned not more than five years. (R. S.
s. 5478.)

U. S. v. Campbell, 16 Fed. Rep., v. Shelton, 100 Fed. Rep., 381; Con-

233; Re Byron, 18 Fed. Rep., 722; U. sidine v. U. S., 112 Fed. Rep., 342; U.

S. v. Lantry, 30 Fed. Rep., 232; U. S. S. v. Martin, 140 Fed. Rep., 256; So-

v. Williams, 57 Fed. Rep., 210; U. S. renson v. U. S., 143 Fed. Rep., 820;

v. Yennie, 74 Fed. Rep., 221; U. S. 168 Fed. Rep., 785.
v. Saunders, 77 Fed. Rep., 170; U. S.

§ 193. Unlawfully entering postal car, etc. — Who-
ever, by violence, shall enter a post-office car, or any
apartment in any car, steamboat, or vessel, assigned to
the use of the Mail Service, or shall wilfully or malicious-
ly assault or interfere with any postal clerk in the dis-
charge of his duties in connection with such car, steam-
boat, vessel, or apartment thereof, or shall wilfully aid
or assist therein, shall be fined not more than one thou-
sand dollars, or imprisoned not more than three years, or
both. (3 Mar., 1903, 32 Stat. L., 1176, c. 1009, s. 5.)

U. S. v. Yennie, 74 Fed. Rep., 221;
U. S. v. Shelton, 100 Fed. Rep., 831.

§ 194. Stealing, secreting, embezzling, etc., mail mat-
ter or contents. — Whoever shall steal, take, or abstract,
or by fraud or deception obtain, from or out of any mail,
post-office, or station thereof, or other authorized deposi-
tory for mail matter, or from a letter or mail carrier, any
letter, postal card, package, bag, or mail, or shall ab-
stract or remove from any such letter, package, bag, or
mail, any article or thing contained therein, or shall se-
crete, embezzle, or destroy any such letter, postal card,
package, bag, or mail, or any article or thing contained
therein; or whoever shall buy, receive, or conceal, or aid
in buying, receiving, or concealing, or shall unlawfully
have in his possession, any letter, postal card, package,
bag, or mail, or any article or thing contained therein,
which has been so stolen, taken, embezzled, or abstract-
ed, as herein described, knowing the same to have been

838

Federal Criminal Law Procedure.

so stolen, taken, embezzled, or abstracted; or whoevei
shall take any letter, postal card, or package, out of any
post-office or station thereof, or out of any authorized de-
pository for mail matter, or from any letter or mail car-
rier, or which has been in any post-office or station there-
of, or other authorized depository or in the custody of
any Id lor or mail carrier, before it has been delivered to
the person to whom it was directed, with a design to ob-
struct the correspondence, or to pry into the business or
secrets of another, or shall open, secrete, embezzle, or de-
stroy the same, shall be fined not more than two thousand
dollars, or imprisoned not more than five years, or both.
(R. S., ss. 3892, 5469, 5470.)

s.
s.

u.
s.
s.

s.
s.

U. S. v. Hardyman, 13 Pet., 176;
Grimm v. U. S., 156 U. S., 604; Goode
v. U. S., 159 U. S., 663; Montgomery
v. U. S., 162 U. S., 410; Hall v. U.
S., 168 U. S.. 632; Scott v. U. S., 172
U. S., 343; U. S. v. Beaty, Hempst..
487, 24 Fed. Cas., 1057; U. S. v. Bel-
lew. 2 Brock., 280, 24 Fed. Cas., 1079;
U. S. v. Bramham, 3 Hughes. 557, 24
Fed. Cas., 1220; U. S. v. Brent, 17
Int. Rev. Rec, 54, 24 Fed. Cas., 1225:
I'. S. v. Cottingham, 2 Blatch., 470,

25 Fed. Cas., 673; U. S. v. Driscoll, 1
Lowell, 303, 25 Fed. Cas.. 914; U. S.
v. Fisher, 5 McLean, 23, 25 Fed. Cas.,
1086; U. S. v. Fove, 1 Curtis, 364, 25
Fed. Cas., 1198; U. S. v. Golding, 2
Cranch C. C, 212, 25 Fed. Cas., 1349;
U. S., v. Harmison, 3 Sawy., 556, 26
Fed. Cas., 156; U. S. v. Jenther, 13
Blatch., 335, 26 Fed. Cas., 610; U.
S. v. Keene, 5 McLean, 509, 26 Fed.
Cas., 694; U. S. v. Lancaster, 2 Mc-
Lean, 431, 26 Fed. Cas., 854; U. S.
v. Laws, 2 Lowell, 115, 26 Fed. Cas.,
892: IT. S. v. Marselis, 2 Blatch.. 108,

26 Fed. Cas., 1167; U. S. v. Martin.
2 McLean, 256, 26 Fed. Cas., 1183;
U. S. v. Montgomery, 3 Sawv., 544, 26
Fed. Cas., 1296; U. S. v. Nott, 1 Mc-
Lean, 499. 27 Fed. Cas.. 189; U. S.
v. Okie, 5 Blatch., 516, 27 Fed. Cas.,
231: U. S. r. Oliver, 4 L. Rep., 197,

27 Fed. Cas., 232; U. S. v. Parsons, 2
Blalch., 104, 27 Fed. Cas., 451; U. S.
v. Patterson, 6 McLean; 466, 27 Fed.
Cas.. \66\ U. S. v. Pearce, 2 McLean,
14, 27 Fed. Cas., 480; U. S. v. Pelle-

. 14 Blatch., 126, 27 Fed. Cas.,

U. S. v. Pond. 2 Curtis, 265,

27 Fed. Cas., 590; U. S. v. Sander.

§ 195. Postmaster or employee of pes'cal service de-
taining, destroying, or embezzling letter, etc.— Whoever,
being ;i postmaster or other person employed in any de-
partmenl of the postal service, shall unlawfully detain,
delay, or open any letter, postal card, package, bag,' or
mail intrusted to him or which shall come into his pos-

6 McLean, 598, 27 Fed. Cas., 949;
U. S. v. Tanner, 6 McLean, 128, 28
Fed. Cas., 12; U. S. v. Taylor, 1 Hughes,
514, 28 Fed. Cas., 19; U. S. v. Whit-
tier, 5 Dill., 35, 28 Fed. Cas., 591; U.
S. v. Baugh, 1 Fed. Rep., 784; U. S.
v. Hamilton, 9 Fed. Rep., 422; U. S.
v. Wynn, 9 Fed. Rep., 886; U. S.
v. McCready, 11 Fed. Rep., 225; U.
S. v. Blackman, 17 Fed. Rep., 837; New
Orleans Nat. Bank v. Merchant, 18 Fed.
Rep., 847; U. S. v. Hilbury, 29 Fed.
Rep., 705; U. S. v. Thompson, 29 Fed.
Rep., 706; U. S. v. Rapp, 30 Fed. Rep.,
818; Re Burkhart, 33 Fed. Rep., 25:
U. S. v. Gruver, 35 Fed. Rep., 59; U.

v. Denicke, 35 Fed. Rep., 407; U.

v. Mathews, 35 Fed. Rep., 890;

v. Jolly, 37 Fed. Rep., 108; U.
v. Taylor, 37 Fed. Rep., 200; U.
v. Wight, 38 Fed. Rep., 106; U.
v. Clarke, 40 Fed. Rep., 325; U.
v. Holmes, 40 Fed. Rep.. 750; U. S. v.
Dorsey, 40 Fed. Rep., 752; Walster v.
U. S., 42 Fed. Rep., 891; U. S. v.
Byrne, 44 Fed. Rep., 188; U. S. v.
Wilson, 44 Fed. Rep., 593; U. S. v.
Bithea, 44 Fed. Rep., 802; U. S. v.
Mulhollond, 50 Fed. Rep., 413; U. S.
v. Delany, 55 Fed. Rep., 475; U. S.
v. Safford, 66 Fed. Rep., 942; U. S. v.
Thomas, 69 Fed. Rep., 588: U. S. v.
Hall, 76 Fed. Rep., 566; U. S. v. Tones,
SO Fed. Rep., 513; U. S. v. Lee, 90
Fed. Rep., 256; U. S. v. Huilsman, 94
Fed. Rep., 486; U. S. v. Trosper, 127
Fed. Rep., 476; U. S. v. Meyers, 142
Fed. Rep., 907; Brown v. U. S., 148
Fed. Rep., 379; U. S. v. Bullington, 170
Fed. Rep., 121.

Offenses Against the Postal Service. 839

session, and which was intended to be conveyed by mail,
or carried or delivered by any carrier, messenger, agent,
or other person employed in any department of the pos-
tal service, or forwarded through or delivered from any
post-office or station thereof established by authority of
the Postmaster-General; or shall secrete, embezzle, or de-
stroy any such letter, postal card, package, bag, or mail;
or shall steal, abstract, or remove from any such letter,
package, bag, or mail, any article or thing contained
therein, shall be fined not more than five hundred dol-
lars, or imprisoned not more than five years, or both.
(R. S., ss. 3890, 2891, 5467.)

Bramberger v. U. S., 128 Fed. Rep., 551; Ennis v. U. S., 154 Fed. Rep.,
346; Alexis v. U. S., 129 Fed. Rep., 842; U. S. v. Kerr, 159 Fed. Rep., 185;
60; Chitwood v. U. S., 153 Fed. Rep., Shaw v. U. S., 165 Fed. Rep., 174.

§ 196. Postmaster, etc., detaining or destroying news-
papers.— Whoever, being a postmaster or other person
employed in any department of the postal service, shall
improperly detain delay, embezzle, or destroy any news-
paper, or permit any other person to detain, delay, em-
bezzle, or destroy the same, or open, or permit any other
person to open, any mail or package of newspapers not
directed to the office where he is employed; or whoever
shall open, embezzle, or destroy any mail or package of
newspapers not being directed to him, and he not being
authorized to open or receive the same; or whoever shall
take or steal any mail or package of newspapers from
any post-office or from any person having custody there-
of, shall be fined not more than one hundred dollars, or
imprisoned not more than one year, or both. (R. S., s.
5471.)

§ 197. Assaulting mail carrier with interit to rob, and
robbing mail. — Whoever shall assault any person having
lawful charge, control, or custody of any mail matter,
with intent to rob, steal, or purloin such mail matter or
any part thereof, or shall rob any such person of such
mail or any part thereof, shall, for a first offense, be im-
prisoned not more than ten years; and if in effecting or
attempting to effect such robbery, he shall wound the
person having the custody of the mail, or put his life in
jeopardy by the use of a dangerous weapon, or for a sub-

840 Federal, Criminal Law Procedure.

sequent offense, shall be imprisoned twenty-five years.
(R. S., ss. 5472, 5473.)

Harrison v. U. S., 163, U. S., 140; 78, 28 Fed. Cas., 699; U. S. v. Reeves,
38 Fed. Rep., 404; U. S. v. Bowman, U. S. v. Hare, 2 Wh. Cr. Cas., 283, 26
Fed. Cas., 148; U. S. v. Wilson, Baldw., 5 Pac. Rep., 333.

§ 198. Injuring letter boxes or mail matter; assault-
ing carrier, etc. — Whoever shall wilfully injure, tear
down, or destroy any letter box, pillar box, lock box,' lock
drawer, or other receptacle established or approved by
the Postmaster-General for the safe deposit of matter for
the mail or for delivery, or any lock or similar device be-
longing or attached thereto, or any letter box or other
receptacle 'designated or approved by the Postmaster-
General for the receipt or delivery of mail matter on any
rural free delivery route, star route, or other mail route,
or shall break open the same; or shall wilfully injure, de-
face, or destroy any mail matter deposited in any letter
box, pillar box, lock box, lock drawer, or other recepta-
cle established or approved by the Postmaster-General
for the safe deposit of matter for the mail or for deliv-
ery; or shall willfully take or steal such matter from or
out of any such letter box, pillar box, lock box, lock
drawer, or other receptacle, or shall willfully and ma-
liciously assault any letter or mail carrier, knowing him
to be such, while engaged on his route in the discharge
of his duty as such carrier, or shall willfully aid or as-
sist in any offense defined in this section, shall be fined
not more than one thousand dollars, or imprisoned not
more than three years or both. (R. S., ss. 3869, 5466. 21
Apr., 1902, 32 Stat. L., 113 c. 563. 3 Mar., 1903, 32 Stat.
L., 1175, c. 1009, s. 3.)

§ 199. Deserting the mail. — Whoever, having taken
charge of any mail, shall voluntarily quit or desert the
same before he has delivered it into the post office at
the termination of the route, or to some known mail car-
rier-messenger, agent, or other employee in the postal
service authorized to receive the same, shall be fined not
more than five hundred dollars, or imprisoned not more
than one year, or both. (R. S., s. 5474.)

15 A. G. Op., 70.

§ 200. Delivery of letters by master of vessel. — The
master or other person having charge or control of any

Offenses Against the Postal Service. 841

steamboat or other vessel passing between ports or places
in the United States, arriving at any such port or place
where there is a postoffice, shall deliver to the
postmaster or at the post-office within three hours
after his arrival, if in the daytime, and if at
night, within two hours after the next sunrise, all letters
and packages brought by him or within his power or
control and not relating to the cargo, addressed to or
destined for such port or place, for which he shall receive
from the postmaster two cents for each letter or package
so delivered, unless the same is carried under a contract
for carrying the mail; and for every failure so to deliver
such letters or packages, the master or other person hav-
ing charge or control of such steamboat or other vessel,
shall be fined not more than one hundred and fifty dol-
lars. (R. S., s. 3977.)

§ 201. Obstructing the mail. — Whoever shall know-
ingly and willfully obstruct or retard the passage of the
mail, or any carriage, horse, driver, or carrier, or car,
steamboat or other conveyance or vessel carrying the
same, shall be fined not more than one hundred dollars,
or imprisoned not more than six months, or both. (R. S.,
s. 3995.)

U. S. v. Kirby, 7 Wall., 482; Re 2 Haskell, 164, 27 Fed. Cas., 1312; U.
Debs, 158 U. S., 564; Clune v. U. S., S. v. De Mott, 3 Fed. Rep., 478; U.
159 U. S., 590; U. S. v. Barney, 3 S. v. Clavpool. 14 Fed. Rep., 127; U.

Hughes, 545, 24 Fed. Cas., 1014; U
S. v. Clark, 13 Phila., 476, 25 Fed
Cas., 443; U. S. v. Hart, Pet. C. C.
390; 26 Fed. Cas., 193; U. S. v. Har
vey, 1 Brunner, 540, 26 Fed. Cas., 206
U. S. v. McCracken. 3 Hughes, 544
26 Fed. Cas., 1049; U. S. v. Stevens

S. v. Kane, 19 Fed. Rep., 42; U. S.

v. Woodward, 44 Fed. Rep., 592; U. S.

v. Sears, 55 Fed. Rep., 268; U. S. v.

Thomas, 55 Fed. Rep.. 380; U. S. v.

Cassidy, 67 Fed. Rep.. 698: Salla v. U.

S., 104 Fed. Rep., 544; Conrad v. U.
S., 127 Fed. Rep., 798.

§ 202. Ferryman delaying the mail. — Whoever, being
a ferryman, shall delay the passage of the mail by willful
neglect or refusal to transport the same across any ferry,
shall be fined not more than one hundred dollars. (R. S.,
s. 3996.)

§ 203. Letters carried in a Foreign vessel to be de-
posited in a post-office. — All letters or other mailable mat-
ter conveyed to or from any part of the United States by
any foreign vessel, except such sealed letters relating to
such vessel or any part of the cargo thereof as may be
directed to the owners or consignees of the vessel, shall
be subject to postage charge, whether addressed to any
person in the United States or elsewhere, provided they

842 Federal Criminal Law Procedure.

are conveyed by the packet or other ship of a foreign
country imposing postage on letters or other mailable
matter conveyed to or from such country by any vessel
of the United States; and such letters or other mailable
matter carried in foreign vessels, except such sealed let-
ters relating to the vessel or any part of the cargo there-
of as may be directed to the owners or consignees, shall
be delivered into the United States post-office by the mas-
ter or other person having charge or control of such ves-
sel when arriving, and be taken from the United States,
post-office when departing, and the postage justly charge-
able by law paid thereon; and for refusing or failing to
do so, or for conveying such letters or other mailable
matter, or any letters or other mailable matter, intended
to be conveyed in any vessel of such foreign country, over
or across the United States, or any portion thereof, the
party offending shall be fined not more than one thou-
sand dollars. (R. S., s. 4016.)

§ 204. Vessel's to deliver letters at post-office; oath. —
No vessel arriving within a port or collection district of
the United States shall be allowed to make entry or
break bulk until all letters on board are delivered to the
nearest post-office, and the master or other person hav-
ing charge or control thereof has signed and sworn to the
following declaration before the collector or other prop-
er customs officer:

I, A. B., master , of the , arriving

from , and now lying in the port of , do

solemnly swear (or affirm) that I have to the best of my
knowledge and belief delivered to the post-office at

every letter and every bag, packet, or parcel of

letters which was on board the said vessel during her
last voyage, or which were in my possession or under my
power or control.

And any master or other person having charge or con-
trol of such vessel who shall break bulk before he has de-
livered such letters shall be fined not more than one hun-
dred dollars. (R. S., s. 3988.)

205. Using, selling, etc., canceled stamps; removing
cancellation marks from stamps, etc. — Whoever shall use
or attempt to use in payment of postage, any

Offenses Against the Postal, Seevice. 843

canceled postage stamp, whether the same has been
used or not; or shall remove, attempt to remove,
or assist in removing, the canceling or defacing
marks from any postage stamp, or the superscrip-
tion from any stamped envelope, or postal card, that
has once been used in payment of postage, with the in-
tent to use the same for a like purpose, or to sell or offer
to sell the same, or shall knowingly have in possession
any- such postage stamp envelope, or postal card, with in-
any such postage stamp, stamped envelope, or pos-
tal card, with intent to use the same, or shall
knowingly sell or offer to sell any such postage
stamp, stamped envelope, or postal card, or use
or attempt to use the same in payment of post-
age; or whoever unlawfully and willfully shall re-
move from any mail matter any stamp attached there-
to in payment of postage; or shall knowingly use or cause
to be used in payment of postage, any postage stamp,
postal card, or stamped envelope, issued in pursuance of
law, which has already been used for a like purpose;
shall, if he be a person employed in the postal service, be
fined not more than five hundred dollars, or imprisoned
not more than three years, or both; and if he be a per-
son not employed in the postal service, shall be fined not
more than five hundred dollars, or imprisoned not more
than one vear, or both. (R. S., ss. 3922, 3923, 3924, 3925.
.3 Mar., 1879, 20 Stat. L., 362, c. 180, s. 28; 1 Supp., 249.)

§ 206. False returns to increase compensation.— Who-
ever, being a postmaster or other person employed in
any branch of the postal service, shall make, or assist
in making, or cause to be made, a false return, statement,
or account to any officer of the United States, or shall
make, assist in making, or cause to be made, a false en-
try in any record, book, or account, required by law or
the rules or regulations of the Post-Office Department to
be kept in respect of the business or operations of any
post-office or other branch of the postal service, for the
purpose of fraudulently increasing his compensation or
the compensation of the postmaster or any employee in
a post-office; or whoever, being a postmaster or other per-
son employed in any post-office or station thereof shall

844 Federal Criminal Law Procedure.

induce, or attempt to induce, for the purpose of increas-
ing the emoluments or compensation of his office, any per-
son to deposit mail matter in, or forward in any manner
for mailing at, the office where such postmaster or other
person is employed, knowing such matter to be properly
mailable at another post-office, shall be fined not more
than five hundred dollars, or imprisoned not more than
two years, or both. (17 June, 1878, 20 Stat. L., 141, c.
259, s. 1; 1 Supp., 186. 4 Aug., 1886, 24 Stat. L., 221, c.
901, s. 3; lSupp., 512.)

U. S. v. Snyder, 14 Fed. Rep., 554.

§ 207. Collection of unlawful postage forbidden.—
Whoever, being a postmaster or other person authorized
to receive the postage of mail matter, shall fraudulently
demand or receive any rate of postage or gratuity or re-
ward other than is provided by law for the postage of
such mail matter, shall be fined not more than one hun-
dred dollars, or imprisoned not more than six months, or
both. (R. S., s. 3899.)

§ 208. Unlawful pledging or sale of stamps. — Who-
ever, being a postmaster or other person employed in any
branch of the postal service, and being intrusted with the
sale or custody of postage stamps, stamped envelopes, or
postal cards, shall use or dispose of them in the payment
of debts, or in the purchase of merchandise or other sala-
ble articles, or pledge or hypothecate the same, or sell or
dispose of them except for cash; or sell or dispose of post-
age stamps or postal cards for any larger or less sum than
the values indicated on their faces; or sell or dispose of
stamped envelopes for a larger or less sum than is
charged therefor by the Post-Office Department for like
quantities; or sell or dispose of, or cause to be sold or
disposed of, postage stamps, stamped envelopes, or pos-
tal cards at any point or place outside of the delivery of
the office where such postmaster or other person is em-
ployed; or induce or attempt to induce, for the purpose
of increasing the emoluments or compensation of such
postmaster, or the emoluments or compensation of any
other person employed in such post-office or any station
thereof, or the allowances or facilities provided therefor,
any person to purchase at such post-office or any station

Offenses Against the Postal, Service. 845

thereof, or from any employee of such post-office, post-
age stamps, stamped envelopes, or postal cards; or sell or
dispose of postage stamps, stamped envelopes, or postal
cards, otherwise than as provided by law or the regula-
tions of the Post-Office Department, shall be fined not
more than five hundred dollars, or imprisoned not more
than one year, or both. (R. S., s. 3920. 17 June, 1878, 20
Stat. L., 141, c. 259, s. 1; 1 Supp., 186.)

Palliser v. U. S., 136 U. S., 257; U. U. S. v. Wa.ter Scott Stamp Co., b7
S. v. Williamson, 26 Fed. Rep., 690: Fed. Rep., 721.
U. S. v. Douglass, 33 Fed. Hep., 381;

§ 209. Failure to account for postage and to cancel
stamps, etc., by officials. — Whoever, being a postmaster
or other person engaged in the postal service, shall col-
lect and fail to account for the postage due upon any ar-
ticle of mail matter which he may deliver, without hav-
ing previously affixed and canceled the special stamp pro-
vided by law, or shall fail to affix such stamp, shall be
fined not more than fifty dollars. (3 Mar., 1879, 20 Stat.
L.; 362, c. 180, s. 27; 1 Supp., 249.)

§ 210. Issuing money order without payment. — Who-
ever, being a postmaster or other person employed in any
branch of the postal service, shall issue a money order
without having previously received the money therefor,
shall be fined not more than five hundred dollars. (R.
S., s. 4030.)

§ 211. Obscene, etc., matter nonmailable. — Every ob-
scene, lewd, or lascivious, and every filthy, book, pam-
phlet, picture, paper, letter writing, print or other publi-
cation of an indecent character, and every article or thing
designed, adapted, or intended for preventing concep-
tion or producing abortion, or for any indecent or immor-
al use; and every article, instrument, substance, drug,
medicine, or thing which is advertised or described in a
manner calculated to lead another to use or apply it for
preventing conception or producing abortion, or for any
indecent or immoral purpose ; and every written or print-
ed card, letter, circular, book, pamphlet, advertisement,
or notice of any kind giving information directly or in-
directly, where, or how, or from whom, or by what means
any of the hereinbefore-mentioned matters, articles, or
things may be obtained or made, or where or by whom

846 Federal Criminal Law Procedure.

any act or operation of any kind for the procuring or pro-
ducing of abortion will be done or performed, or how or
by what means conception may be prevented or abortion
produced, whether sealed or unsealed; and every letter,
packet, or package, or other mail matter containing any
filthy, vile, or indecent thing, device, or substance; and
every paper, writing, advertisement, or representation
thai any article, instrument, substance, drug, medicine,
or thing may, or can be, used or applied for preventing
conception or producing abortion, or for any indecent or
immoral purpose; and every description calculated to in-
duce or incite a person to so use or apply any such arti-
cle, instrument, substance, drug, medicine, or thing, is
hereby declared to be non-mailable matter and shall not
be conveyed in the mails or delivered from any post-of-
fice or by any carrier. Whoever shall knowingly deposit,
or cause to be deposited for mailing or delivery, any-
thing declared by this section to be non-mailable, or shall
knowingly take, or cause the same to be taken, from the
mails for the purpose of circulating or disposing thereof,
or of aiding in the circulation or disposition thereof, shall
be fined not more than five thousand dollars, or impris-
oned not more than five years, or both. (R. S., s. 3893.

26 Sept., 1888, 25 Stat. L.', 496, c. 1039, s. 2; 1 Supp., 621.

27 May, 1908, 35 Stat. L., 416 c. 206.)

Ex parte Jackson, 96 U. S-, 727; Re Rep., 731; U. S. v. Morris, 18 Fed.

Rapier, 143 U. S., 110; U. S. v. Chase, Rep., 900; U. S. v. Moore, 19 Fed.

135 U. S., 255, 27 Fed. Rep., 807; Rep., 39; U. S. v. Chisman, 19 Fed.

Grimm v. U. S., 156 U. S., 604, 50 Rep., 497; U. S. v. Comerford, 25 Fed.

Fed. Rep.. 528; Rosen v. U. S., 161 U. Rep., 902; U. S. v. Thomas, 27 Fed.

S., 29; Swearingen v. U. S.. 161 U. Rep., 882; U. S. v. Bebout, 28 Fed.

S., 446; Andrews v. U. S., 162 U. S., Rep., 522; U. S. v. Wightman. 29 Fed.

420, 58 Fed. Rep., 768; Price v. U. S., Rep., 636; U. S. v. Rapp, 30 Fed. Rep.,

165 U. S.. 311: Dunlop v. U. S., 165 818; Ex parte Doran. 32 Fed. Rep., 76;

U. S., 486; Re Tackson. 14 Blatch., U. S. v. Slenker, 32 Fed. Rep.. 691;

245, 13 Fed. Cas.. 194; U. S. v. Ben- U. S. v. Harmon, 34 Fed. Rep., 872, 45

nett. 16 Blatch., 338. 24 Fed. Cas., 1093; Fed. Rep.. 414, 50 Fed. Rep., 921; U.

U. S. v. Bott, 11 Blatch., 346, 24 Fed. S. v. Mathias. 36 Fed. Rep.. 892; U. S.

U. S. v. Cottingham, 2 v. Clark, 37 Fed. Rep., 106; U. S. v.

Blatch.. 470, 25 Fed. Cas.. 673; U. Davis, 38 Fed. Rep., 326; U. S. v. Clarke.

S. v. Foote, 13 Blatch., 418, 25 Fed. 38 Fed. Rep., 500, 732, 40 Fed. Rep.,

Cas., 1140; U. S. v. Foye. 1 Curtis, 325; U. S. v. Harman, 38 Fed. Rep.,

364. 25 Fed. Cas., 1198; U. S. v. Kelly, 827; I*. S. v. Huggitt, 40 Fed. Rep.,

Sawy.. 566, 26 Fed. Cas., 695; U. 636; Re Wahll, 42 Fed. Rep., 822; U.

Pond, 2 Curtis, 265, 2 Fed. Cas.. S. v. Clark, 43 Fed. Rep., 574: U.

591; IT. S. v. Pratt. 2 Am. L. T. Rep. S. v. Smith, 45 Fed. Rep., 476; U. S.

(N. S.), 228, 27 Fed. Cas.. 611; U. v. Durant, 46 Fed. Rep., 753; U. S.

S. v. Whittier, 5 Dill. 35. 28 Fed. Cas.. v. Martin. 50 Fed. Rep.. 918: U. S.

591; lr. S. v. Williams. 3 Fed. Rep.. v. Males, 51 Fed. Rep.. 41; IT. S. v.

484: I . U. S.. 10 Fed. Rep., 92; Wilson, 58 Fed. Ren.. 768; T1. S. v.

S. v. Smith, 11 Fed. Rep.. 663: U. Warner, 59 Fed. Rep., 355; U. S. v.

S. v. Kaltmeycr. 16 Fed. Rep.. 760: Tarvis. 59 Fed. Rep.. 357; U. S. v.

TT. S. v. Hanover. 17 Fed. Rep.. 444: Nathan. 61 Fed. Rep.. 936; U. S. v.

U. S. v. Gaylord. 17 Fed. Rep., 438. 50 T,ing. 61 Fed. Ren., 1001: U. S. v. Fvd-

Fcd. Rep., HO; TT. S. v. Britton, 17 Fed. ler, 72 Fed. Rep.', 771; U. S. v. Reid,

Offenses Against the Postal Service.

847

73 Fed. Rep., 289; U. S. v. Lamkin,
73 Fed. Rep., 459; U. S. v. Janes, 74
Fed. Rep., 545; U. S. v. Brazeau, 78
Fed. Rep., 464; Safter v. U. S., 87 Fed.
Rep., 329; U. S. v. Tubbs, 94 Fed. Rep..
356; U. S. v. Moore, 104 Fed. Rep.,
78; U. S. v. Clifford, 104 Fed. Rep.,
296; De Gignac v. U. S., 113 Fed. Rep..
197; U. S. v. Wyatt, 122 Fed. Rep.,
316; U. S. v. Harris, 122 Fed. Rep.,
551; Harvey v. U. S., 126 Fed. Rep.,
357; U. S. v. Moore, 129 Fed. Rep.,
159; U. S. v. Pupke, 133 Fed. Rep.,

243; Burton v. U. S., 142 Fed. Rep..
57; Demolli v. U. S., 144 Fed. Rep.,
363; Rinker v. U. S., 151 Fed. Rep.,
755; Lee v. U. S., 156 Fed. Rep., 948;
Hanson v. U. S., 157 Fed. Rep.. 749;
U. S. v. Musgrave, 160 Fed. Rep., 700;
Shepard v. U. S., 160 Fed. Rep., 584;
U. S. v. O'Donnell, 165 Fed. Rep., 21S;
U. S. v. Benedict, 165 Fed. Rep., 221;
Barnes v. U. S., 166 Fed. Rep., 113;
Knowles v. U. S., 170 Fed. Rep., 409.
U. S. v. Somers, 164 Fed. Rep., 259;
McFadden v. U. S., 165 Fed. Rep., 51;

§ 212. Libelous and indecent envelopes and wrappers.
I — All matter otherwise mailable by law, upon the en-
velope or outside cover or wrapper of which, or any pos-
tal card upon which, any delineations, epithets, terms, or
language of an indecent, lewd, lascivious, obscene, libel-
ous, scurrilous, defamatory, or threatening character, or
calculated by the terms or manner or style of display and
obviously intended to reflect injuriously upon the char-
acter or conduct of another, may be written or printed or
otherwise impressed or apparent, are hereby declared
non-mailable matter, and shall not be conveyed in the
mails nor delivered from any post-office nor by any let-
ter carrier, and shall be withdrawn from the mails under
such regulations as the Postmaster-General shall pre-
scribe. Whoever shall knowingly deposit or cause to be
deposited, for mailing or delivery, anything declared by
this section to be non-mailable matter, or shall knowing-
ly take the same or cause the same to be taken from the
mails for the purpose of circulating or disposing of or
aiding in the circulation or disposition of the same, shall
be fined not more than five thousand dollars, or impris-
oned not more than five years, or both. (26 Sept., 1888,
25 Stat. L., 496, c. 1039, s. 1; 1 Supp., 621.)

U. S. v. Smith, 11 Fed. Rep., 663
Ex parte Doran, 32 Fed. Rep., 76; U
S. v. Barber, 37 Fed. Rep., 55; U
S. v. Davis, 38 Fed. Rep., 326; U. S
v. Bayle, 40 Fed. Rep., 664; U. S. v
Brown, 43 Fed. Rep., 135; U. S. v,
Gee, 45 Fed. Rep., 194; U. S. v. El-

liott, 51 Fed. Rep., 807; U. S. v. Jarvis,
59 Fed. Rep., 357; U. S. v. Simmons,
61 Fed. Rep., 640; U. S. v. Smith, 69
Fed. Rep., 971; U. S. v. Dodge, 70
Fed. Rep., 235; U. S. v. Burnell, 75
Fed. Rep., 824; Re Barber, 75 Fed.
Rep., 980.

§ 213. Lottery, gift, enterprise etc., circulars, etc., not
mailable. — No letter, package, postal card, or circular
concerning any lottery, gift enterprise, or similar scheme
offering prizes dependent in whole or in part upon lot or
chance; and no lottery ticket or part thereof, or paper,
certificate, or instrument purporting to be or to repre-
sent a ticket, chance, share or interest in or dependent

848

Fedeeal Ceiminal Law PeoceduEE.

upon the event of a lottery gift enterprise, or similar
scheme offering prizes dependent in whole or in part up-
on lot or chance; and no check, draft, bill, money, postal
note, or money order, for the purchase of any ticket or
part thereof or of any share or chance in any such lot-
tery, gift enterprise, or scheme; and no newspaper, cir-
cular, phampjet, or publication of any kind containing
any advertisement of any lottery, gift enterprise, or
scheme of any kind offering prizes dependent in whole
or in part upon lot or chance, or containing any list of the
prizes drawn or awarded by means of any such lottery,
gift enterprise, or scheme, whether said list contains any
part or all of such prizes, shall be deposited in or carried
by the mails of the United States or be delivered by any
postmaster or letter carrier. Whoever shall knowingly
deposit or cause to be deposited, or shall knowingly send
or cause to be sent anything to be conveyed or delivered
by mail in violation of the provisions of this section, or
shall knowingly deliver or cause to be delivered by mail
anything herein forbidden to be carried by mail, shall
be fined not more than one thousand dollars, or impris-
oned not more than two years, or both; and for any sub-
sequent offense shall be imprisoned not more than five
years. Any person violating any provision of this sec-
tion may be tried and punished either in the district in
which the unlawful matter or publication was mailed, or
to which it was carried by mail for delivery according to
the direction thereon, or in which it was caused to be de-
livered bv mail to the person to whom it was addressed.
(R. S., s. 3894. 19 Sept., 1890, 26 Stat. L., 465, c. 908, s.
1; 1 Supp., 803. 2 Mar., 1895, 28 Stat. L., 963, c. 191, s.

l;2Supp., 435.)

Ex parte Jackson, 96 U. S., 727;
Re Rapier, 143 U. S., 110; Horner v.
U. S., 143 U. S., 570, 147 U. S., 449
Mac Daniel v. U. S., 171 U. S., 68<»
87 Fed. Rep., 324; U. S. v. Parsons
2 Blatch., 107, 27 Fed. Cas., 451: U
S. v. Noelkc, 1 Fed. Rep., 426; U. S. v
Patty, 2 Fed. Rep., 664; U. S. v. Duff
6 Fed. Rep., 45; U. S. v. Moore, 19
Fed. Rep., 39; U. S. v. Dauphin, 20
Fed. Rep., 625; U. S. v. Mason, 22
Rep., 707; U. S. v. Clark, 22
Fed. Rep., 708; U. S. v.. Jackson, 29
I Rep., 503; U. S. v. Zeisler, 30

Fed. Rep., 499; U. S. v. Jones, 31 Fed.

Rep., 718; U. S. v. Horner, 44 Fed.
Rep., 677; U. S. v. Bailev, 47 Fed.
Rep., 117; U. S. v. Lynch, 49 Fed.
Rep., 851; U. S. v. Wallis, 58 Fed.
Rep., 942; U. S. v. Politzer, 59 Fed.
Rep., 273; U. S. v. Conrad, 59 Fed.
Rep., 458; MacDonald v. U. S., 63 Fed.
Rep., 426; U. S. v. McDonald, 65 Fed.
Rep., 486; U. S. v. Fulkerson, 74 Fed.
Rep., 619; Hoover v. McChesney, 81
Fed. Rep., 472; U. S. v. Rosenblum, 121
Fed. Rep., 180; U. S. v. Irvine. 156
Fed. Rep., 376; Fitzsimmons v. U. S..
156 Fed. Rep., 439.

Offenses Against the Postal, Service. 849

§ 214. Postmasters not to be lottery agents. — Who-
ever, being a postmaster or other person employed in the
postal service, shall act as agent for any lottery office, or
under color of purchase or otherwise, vend lottery tick-
ets, or shall knowingly send by mail or delivery any let-
ter, package, postal card, circular, or pamphlet advertis-
ing any lottery, gift enterprise, or similar scheme offer-
ing prizes depending in whole or in part upon any lot or
chance, or any ticket, certificate, or instrument represent-
ing any chance, share, or interest in or dependent upon
the event of any lottery, gift, enterprise, or similar scheme
offering prizes dependent in whole or in part upon lot or
chance, or any list of the prizes awarded by means of any
scheme, shall be fined not more than one hundred dollars,
or imprisoned not more than one year, or both. (R. S.,
s. 3851.) f!W|

§ 215. Use of mails to promote frauds. — Whoever,
having devised or intending to devise any scheme or ar-
tifice to defraud, or for obtaining money or property by
means of false or fraudulent pretenses, representations,
or promises, or to sell, dispose of, loan, exchange, alter,
give away, distribute, supply, or furnish or procure for
unlawful use any counterfeit or spurious coin, bank note,
paper money, or any obligation or security of the United
States, or of any State, Territory, municipality, com-
pany, corporation, or person or anything represented to
be or intimated or held out to be such counterfeit or
spurious article, or any scheme or artifice to obtain mon-
ey by or through correspondence, by what is commonly
called the "saw-dust swindle," or "counterfeit-money
fraud," or by dealing or pretending to deal in what is
commonly called ' ' green articles, " " green coin, " " green
goods," "bills," "paper goods," "spurious Treasury
notes," "United States goods," "green cigars," or any
other names or terms intended to be understood as relat-
ing to such counterfeit or spurious articles, shall, for the
purpose of executing such scheme or artifice or attempt-
ing so to do, place, or cause to be placed any letter, pos-
tal card, package, writing, circular pamphlet, or adver-
tisement whether addressed to any person residing with-
in or outside the United States, in any post-office, or sta-

850

Federal Criminal Law Procedure.

tion thereof, or street or other letter box of the United
States, or authorized depository for mail matter, to be
sent or delivered by the post-office establishment of the
United States, or shall take or receive any such therefrom
whether mailed within or without the United States,
or shall knowingly cause to be delivered by mail accord-
ing to the direction thereon, or at the place at which it
is directed to be delivered by the person to whom it is
addressed, any such letter, postal card, package, writ-
ing, circular, pamphlet, or advertisement, shall be fined
not more than one thousand dollars, or imprisoned not
more than five years, or both. (R. S., s. 5480. 2 Mar.,
1889, 25 Stat. L., 873, c. 393 s. 1; 1 Supp., 694.)

Re Henry, 123 U. S., 372; U. S.
v. Hess, 124 U. S., 483; Stokes v. U.
S., 157 U. S., 187; Streep v. U. S.
160 U. S., 128; Durland v. U. S., 161
U. S., 306; Brand v. U. S., 4 Fed.
Rep., 394; U. S. v. Nye, 4 Fed. Rep.,
888; U. S. v. Jones, 10 Fed. Rep., 469;
U. S. v. Stickle, 15 Fed. Rep., 798;
U. S. v. Owens, 17 Fed. Rep., 72; U.
S. v. Fleming, 18 Fed. Rep., 907; U.
S. v. Martin, 28 Fed. Rep., 812; U.
S. v. Wooten, 29 Fed. Rep., 702; Re
Haynes, 30 Fed. Hep., 767; U. S. v.
Hoeflinger, 33 Fed. Rep., 469; U. S.
v. Watson, 35 Fed. Rep., 358; U. S.
v. Mitchell, 36 Fed. Rep., 492; U. S.
v. Ried, 42 Fed. Rep., 134 U. S. v.
Finney, 45 Fed. Rep., 41; U. S. v.
Staples, 45 Fed. Rep., 195; U. S. v.
Smith, 45 Fed. Rep., 561; U. S. v.
Beatty, 60 Fed. Rep., 740; Weeber v.
U. S., 62 Fed. Rep., 740; U. S. v.
Harris, 68 Fed. Rep., 348; U. S. v.
Beach, 71 Fed. Rep., 160; U. S. v.
Charles, 74 Fed. Rep., 142; Howard
v. U. S., 75 Fed. Rep., 986; Culp v. U.
S., 82 Fed. Rep., 990; U. S. v. Fay, 83
Fed. Rep., 839; U. S. v. Bernard, 84
Fed. Rep., 634; Tingle v. U. S., 87
Fed. Rep., 320; U. S. v. Sauer, 88
Fed. Rep., 249; U. S. v. Loring, 91
Fed. Rep., 881; 14 A. G. Op., 18;
20 A. G. Op., 296; Milby v. U. S., 109
Fed. Rep., 638; Packer v. U. S., 106
Fed. Rep., 906: Larkin v. U. S., 107
Fed. Rep., 697; U. S. v. Post, 113
Fed. Rep., 852; Hume v. U. S., 118
Fed. Rep., 689; U. S. v. Horman, 118
Fed. Rep., 780; Stewart v. U. S., 119
Fed. Rep.,- 89; Milby v. U. S., 120 Fed.

Rep., 1; O'Neill v. U. S., 120 Fed.
Rep.. 236; Melton v. U. S., 120 Fed.
Rep., 504; U. S. v. Clark, 121 Fed. Rep.,
190; U. S. v. Ryan, 123 Fed. Rep., 634;
Hawley v. U. S., 123 Fed. Rep., 849;
Kellogg v. U. S., 126 Fed. Rep., 323;
Dalton v. U. S., 127 Fed. Rep., 534;
Flachskamm v. U. S., 127 Fed. Rep..
674; Hawley v. U. S., 127 Fed. Rep.,
929; U. S. v. Post, 128 Fed. Rep., 950;
O'Hara v. U. S., 129 Fed. Rep., 551:
Balliet v. U. S., 129 Fed. Rep., 689;
Betts v. U. S., 132 Fed. Rep., 228; Mc-
Donnell v. U. S., 133 Fed. Rep., 293;
Miller v. U. S., 133 Fed. Rep., 337;
Post v. U. S., 135 Fed. Rep., 1; Ewing
v. U. S., 136 Fed. Rep., 53; Booth v.
U. S., 139 Fed. Rep., 252; U. S. v.
Etheredge, 140 Fed. Rep., 376; Brown
v. U. S., 143 Fed. Rep., 60; Runble v.
U. S., 143 Fed. Rep., 772; U. S. v.
Francis, 144 Fed. Rep., 520; Brown v.
U. S., 146 Fed. Rep., 219; Brooks v.
U. S., 146 Fed. Rep., 223; U. S. v.
White, 150 Fed. Rep., 379; Van Deusen
v. U. S.. 151 Fed. Rep., 989; Walker v.
U. S., 152 Fed. Rep., Ill; Francis v.
U. S.. 152 Fed. Rep., 155; Hall v. U.
S., 152 Fed. Rep., 420; Gourdain v.
U. S., 154 U. S., 453; Dalton v. U.
S., 154 Fed. Rep., 461; Booth v. U. S.,
154 Fed. Rep., 836; U. S.. v. Dexter,
154 Fed. Rep., 890; Faulkner v. U.
S., 157 Fed. Rep., 840; U. S. v. Raish,

163 Fed. Rep., 911; U. S. v. McVicker,

164 Fed. Rep., 894; Lemon v. U. S..
164 Fed. Rep., 953; U. S. v. Smith, 166
Fed. Rep., 958; U. S. v. McCrory, 175
Fed. Rep., 802.

§ 216. Fraudulently assuming fictitious address. —
Whoever, for Ihe purpose of conducting, promoting, or
carrying on, in any manner, by means of the post-office
establishment of the United States any scheme or device
mentioned in the section last preceding, or any other un-
lawful business whatsoever, shall use or assume, or re-
quest to be addressed by, any fictitious, false, or assumed

Offenses Against the Postal Service. 851

title, name or address, or name other than his own prop-
er name, or shall take or receive from any post-office of
the United States, or station thereof, or any other au-
thorized depository of mail matter, any letter, postal
card, package, or other mail matter addressed to any such
fictitious, false, or assumed title, name, or address or
name other than his own proper name, shall be punished
as provided in the section last preceding. (2 Mar., 1889,
25 Stat. L., 873, c. 393, s. 2; 1 Supp., 695.)

§ 217. Poisons and explosives nonmailable. — All kinds
of poison, and all articles and compositions containing
poison, and all poisonous animals, insects, and reptiles,
and explositives of all kinds, and imnammable materials,
and infernal machines, and machanical, chemical, or
other devices or compositions which may ignite or ex-
plode, and all disease germs or scabs, and all other
natural or artificial articles, compositions, or materials
of whatever kind which may kill, or in anywise hurt,
harm, or injure another, or damage, deface, or other-
wise injure the mails or other property, whether sealed
as first-class matter or not, are hereby declared to be
non-mailable matter, and shall not be conveyed in
the mails or delivered from any post-office or station
thereof, ror by any letter carrier; but the Postmaster-
General may pemit the transmission in the mails, under
such rules and regulations as he shall prescribe as to
preparation and packing, of any articles hereinbefore de-
scribed which are not outwardly or of their own force dan-
gerous or injurious to life, health or property: Provided,
That all spirituous, yinous, malted, fermented, or other
intoxicating liquors of any kind, are hereby declared to
be non-mailable and shall not be deposited in or carried
through the mails. Whoever shall knowingly deposit or
cause to be deposited for mailing or delivery, or shall
knowingly cause to be delivered by mail according to the
direction thereon, or at any place at which it is directed
to be delivered by the person to whom it is addressed, any-
thing declared by this section to be non-mailable, unless
in accordance with the rules and regulations hereby au-
thorized to be prescribed by the Postmaster-General, shall
be fined not more than one thousand dollars, or impris-

852 Federal Criminal Law Procedure.

oned not more than two years, or both ; and whoever shall
knowingly deposit or cause to be deposited for mailing or
delivery, or shall knowingly cause to be delivered by mail
according to the directions thereon, or at any place to
which it is directed to be delivered by the person to whom
it is addressed, anything declared by this section to be
non-mailable, whether transmitted in accordance with the
rules and regulations authorized to be prescribed by the
Postmaster-General or not, with the design, intent, or
purpose to kill, or in anywise hurt, harm, or injure an-
other or damage, deface, or otherwise injure the mails or
other property, shall be fined not more than five thou-
sand dollars, or imprisoned not more than ten years, or
both. (E. S., s. 3878. 3 Mar., 1879, 20 Stat. L., 360, c.
180, s. 20; 1 Supp. 247. 8 June, 1896, 29 Stat. L., 262, c.
370; 2 Supp., 507.)

§ 218. Counterfeiting money orders. — Whoever, with
intent to defraud, shall falsely make, forge, counterfeit,
engrave, or print, or cause or procure to be falsely made,
forged, counterfeited, engraved, or printed or shall will-
ingly aid or assist in falsely making, forging, counter-
feiting, engraving, or printing, any order in imitation of
or purporting to be a money order issued by the Post-
Office Department or by any postmaster or agent thereof;
or whoever shall forge or counterfeit the signature of any
postmaster, assistant postmaster, chief clerk, or clerk,
upon or to any money order, or postal note, or blank
therefor provided or issued by or under the direction of
the Post-Office Department of the United States, or of
any foreign country, and payable in the United States,
or any material signature or indorsement thereon,
or any material signature to any receipt or certifi-
cate of identification thereon; or shall falsely alter,
or cause or procure to be falsely altered in any ma-
terial respect, or knowingly aid or assist in falsely so
altering any such money order or postal note; or shall,
with intent to defraud, pass, utter, or publish any such
forged or altered money order or postal note, knowing
any material signature or indorsement thereon to be
false, forged, or counterfeited, or any material altera-
tion therein to have been falsely made; or shall issue any

Offenses Against the Postal Service. 85

money order or postal note without having previously
received or paid the full amount of money payable there-
for with the purpose of fraudulently obtaining, or re-
ceiving or fraudulently enabling any other person, either
directly or indirectly, to obtain or receive from the Unit-
ed States, or any officer, employee, or agent thereof, any
sum of money whatever; or shall, with intent to defraud
the United States, or any person, transmit or present to,
or cause or procure to be transmitted or presented to, any
officer or employee or at any office of the Government of
the United States, any money order or postal note, know-
ing the same to contain any forged or counterfeited sig-
nature to the same, or to any material indorsement, re-
ceipt, or certificate thereon, or material alteration there-
in unlawfully made, or to have been unlawfully issued
without previous payment of the amount required to be
paid upon such issue, shall be fined not more than five
thousand dollars, or imprisoned not more than five years,
or both. (R. S., s. 5463. 3 Jan., 1887, 24 Stat. L., 355, c.
13, s. 2; 1 Supp., 518. 18 June, 1888, 25 Stat. L., 187, c.
394, s. 2; 1 Supp., 593.)

U. S. v. Morris, 16 Blatch., 133, 26 678; Woodruff v. U. S., 58 Fed. Rep..
Fed. Cas., 1321; Ex parte Hibbs, 26 Fed. 766; Vives v. U. S., 92 Fed. Rep., 355.
Rep., 421; U. S. v. Long, 30 Fed. Rep..

§ 219. Counterfeiting postage stamps. — Whoever
shall forge or counterfeit any postage stamp, or any
stamp printed upon any stamped envelope, or postal card,
or any die, plate, or engraving therefor ; or shall make or
print, or knowingly use or sell, or have in possession with
intent to use or sell, any such forged or counterfeited
postage stamp, stamped envelope, postal card, die, plate,
or engraving; or shall make, or knowingly use or sell, or
have in possession with intent to use or sell, any paper
bearing the watermark of any stamped envelope, or pos-
tal card, or any fraudulent imitation thereof; or shall
make or print, or authorize or procure to be made or
printed, any postage stamp, stamped envelope, or postal
card, of the kind authorized and provided by the Post-
Office Department, without the special authority and di-
rection of said Department; or shall, after such postage
stamp, stamped envelope, or postal card has been print-
ed, with intent to defraud, deliver the same to any per-

854 Federal Criminal Law Procedure.

son not authorized by an instrument in writing, duly exe-
cuted under the hand of the Postmaster-General and the
seal of the Post-Office Department, to receive it, shall be
fined not more than five hundred dollars, or imprisoned
not more than five years, or both. (R. S., s. 5464.)

I'. S. v. Rellecreau, 14 Blatch., 126,
21 Fed. Cas., 126; U. S. v. Copper-
smith, 4 Fed. Rep., 198.

§ 220. Counterfeiting, etc., foreign stamps. — Who
ever shall forge, or counterfeit, or knowingly utter or
use any forged or counterfeited postage stamp of any
foreign government, shall be fined not more than five
hundred dollars, or imprisoned not more than five years,
or both. (R. S., s. 5465.)

§ 221. Inclosing higher-class in lower-class matter. —
Matter of the second, third, or fourth class containing
any writing or printing in addition to the original matter,
other than as authorized by law, shall not be admitted to
the mails, nor delivered, except upon payment of postage
for matter of the first class, deducting therefrom any a-
mount which may have been prepaid by stamps affixed,
unless by direction of the Postmaster-General such post-
age shall be remitted. Whoever shall knowingly conceal or
inclose any matter of a higher class in that of a lower
class, and deposit or cause the same to be deposited for
conveyance by mail, at a less rate than would be charged
for such higher class matter, shall be fined not more than
one hundred dollars. (R. S., s. 3887. 20 Jan., 1888, 25
Stat. L., 2 c. — s. 2; 1 Supp., 578.)

§ 222. Postmaster illegally approving bond, etc. —
Whoever, being a postmaster, shall affix his signature to
the approval of any bond of a bidder, or to the certifi-
cate of sufficiency of sureties in any contract, before the
said bond or contract is signed by the bidder or contract-
or and his sureties, or shall knowingly, or without the
exercise of due diligence, approve any bond of a bidder
with insufficient sureties or shall knowingly make any
false or fraudulent certificate, shall be forthwith dis-
missed from office and be thereafter disqualified from
holding the office of postmaster; and shall also be fined
not more than five thousand dollars, or imprisoned not
more than one year, or both. (R. S., s. 3947. 23 June,
1874, 18 Slat. L. 235, c. 456, s. 12; 1 Supp., 45.)

Offenses Against the Postal Service. 855

§ 223. False evidence as to second-class matter. —
Whoever shall submit or cause to be submitted to any
postmaster or to the Post-Office Department or any of-
ficer of the postal service, any false evidence relative to
any publication for the purpose of securing the admis-
sion thereof at the second-class rate, for transportation
in the mails, shall be fined not more than five hundred
dollars. (18 June, 1888, 25 Stat. L., 187, c. 394, s. 1; 1
Supp., 593. 2 Mar., 1905, 33 Stat. L., 823, c. 1304.)

§ 224. Inducing or prosecuting false claims. — Who-
ever shall make, allege, or present, or cause to be made,
alleged, or presented, or assist, aid, or abet in making,
alleging, or presenting, any claim or application for in-
demnity for the loss of any registered letter, parcel, pack-
age, or other article or matter, or the contents thereof,
knowing such claim or application to be false, fictitious,
or fraudulent; or whoever for the purpose of obtaining
or aiding to obtain the payment or approval of any such
claim or application, shall make or use, or cause to be
made or used, any false statement, certificate, affidavit,
or deposition; or whoever shall knowingly and willfully
misrepresent, or mis-state, or, for the purpose aforesaid
shall knowingly and willfully conceal any material fact
or circumstance in respect of any such claim or applica-
tion for indemnity, shall be fined not more than five hun-
dred dollars, or imprisoned not more than one year, or
both.

§ 225. Misappropriation of postal funds or property.
— Whoever, being a postmaster or other person employed
in or connected with any branch of the postal service
shall loan, use, pledge, hypothecate, or convert to his own
use, or shall deposit in any bank, or exchange for other
funds or property, except as authorized by law, any
money or property coming into his hands or under his
control in any manner whatever, in the execution or un-
der color of his office, employment, or service, whether
the same shall be the money or property of the United
States or not; or shall fail or refuse to remit to or de-
posit in the Treasury of the United States or in a desig-
nated depository, or to account for or turn over to the
proper officer or agent, any such money or property, when

856 Federal Criminal Law Procedure.

required so to do by law or the regulations of the Post-
Office Department, or upon demand or order of the Post-
master-General, either directly or through a duly author-
ized officer or agent, shall be deemed guilty of embezzle-
ment; and every such person, as well as every other per-
son advising or knowingly participating therein, shall be
fined in a sum equal to the amount or value of the money
or property embezzled, or imprisoned not more than ten
years, or both. Any failure to produce or to pay over
any such money or property, when required so to do as
above provided, shall be taken to be prima facie evidence
of such embezzlement; and upon the trial of any indict-
ment against any person for such embezzlement, it shall
be prima facie evidence of a balance against him to pro-
duce a transcript from the account books of the Auditor
for the Post-Office Department. But nothing herein shall
be construed to prohibit any postmaster depositing, un-
der the direction of the Postmaster-General, in a nation-
al bank designated by the Secretary of the Treasury for
that purpose, to his own credit as postmaster, any funds
in his charge nor prevent his negotiating drafts or other
evidences of debt through such bank or through United
States disbursing officers or otherwise when instructed or
required so to do by the Postmaster-General for the pur-
pose of remitting surplus funds from one post-office to
another. (R. S., ss. 4046, 4053.)

U. S. v. Young, 25 Fed. Rep., 710.
U. S. v. Royer, 122 Fed. Rep., 844;
U. S. v. Mann, 160 Fed. Rep., 552.

§ 226. Employees not to become interested in con-
tracts.— Whoever, being a person employed in the postal
service, shall become interested in any contract for carry-
ing the mail, or act as agent, with or without compensa-
tion, for any contractor or person offering to become a
contractor in any business before the Department, shall
be immediately dismissed from office, and shall be fined
not more than five thousand dollars, or imprisoned not
more than 0110 year, or both. (R. S., s. 412.)

227. Fraudulent use of official envelopes. — Who-
ever shall make use of any official envelope, label, or in-
dorsemenl authorized by law, to avoid the payment of
postage <>r registry fee on his private letter, packet, pack-

Offenses Against the Postal. Service. 857

age, or other matter in the mail, shall be fined not more
than three hundred dollars. (3 Mar., 1877, 19 Stat. L.,
335, c. 103, s. 5; 1 Supp., 135. 3 Mar., 1879, 20 Stat. L.,
362, c. 180, s. 29. 5 July 1884, 23 Stat. L., 158, c. 234, s.
3; 1 Supp., 467. 2 July 1886, 24 Stat. L., 1122, c. 611;
Supp., 500.)

§ 228. Fraudulent increase of weight of mail. — Who-
ever shall place or cause to be placed any matter in the
mails during the regular weighing period, for the pur-
pose of increasing the weight of the mail with intent to
cause an increase in the compensation of the railroad
mail carrier over whose route such mail may pass, shall
be fined not more than twenty thousand dollars, or im-
prisoned not more than five years, or both. (13 June
1898, 30 Stat. L., 442, c. 446, s. 1; 2 Supp., 778.)

§ 229. Offenses against foreign mail in transit.—
Every foreign mail shall, while being transported across
the territory of the United States, under authority of
law, be taken and deemed to be a mail of the United
States so far as to make any violation thereof, or depre-
dation thereon, or offense in respect thereto, or any part
thereof, an offense of the same grade, and punishable in
the same manner and to the same extent as though the
mail was a mail of the United States; and in any indict-
ment or information for any such offense, the mail, or
any part thereof, may be alleged to be, and on the trial of
any such indictment or information it shall be deemed
and held to be, a mail or part of a mail of the United
States. (R. S., s. 4013.)

§ 230. Omission to take oath. — Every person employ-
ed in the postal service shall be subject to all penalties
and forfeitures for the violation of the laws relating to
such service, whether he has taken the oath of office or
not. (E. S., s. 3832.)

§ 231. Definitions. — The words "postal service,'1
wherever used in this chapter, shall be held and deemed
to include the "Post-Office Department."

CHAPTEE NINE.

OFFENSES AGAINST FOREIGN AND INTERSTATE COMMERCE.

§ 232. Dynamite, etc., not to be carried on vessels or vehicles carry-
ing passengers for hire.

233. Interstate Commerce Commission to make regulations for

transportation of explosives.

234. Liquid nitroglycerin, etc., not to be carried on certain vessels

and vehicles.
. 235. Marking of packages of explosives; deceptive marking.

236. Death or bodily injury caused by such transportation.

237. Importation and transportation of lottery tickets, etc., for-

bidden.

238. Interstate shipment of intoxicating liquors; delivery of to be

made only to bona fide consignee.

239. Common carrier, etc., not to collect purchase price of inter-

state shipment of intoxicating liquors.

240. Packages containing intoxicating liquors shipped in inter-

state commerce to be marked as such.

241. Importation of certain wild animals and birds forbidden.

242. Transportation of prohibited animals.

243. Marking of packages.

244. Penalty for violation of three preceding sections.

245. Importation and transportation of obscene, etc., books, etc.

§ 232. Dynamite, etc., not to be carried on vessels or
vehicles carrying passengers, for hire. — It shall be unlaw-
ful to transport, carry, or convey, any dynamite, gun-
powder, or other explosive, between a place in a foreign
country and a place within or subject to the jurisdiction
of the United States, or between a place in any State,
Territory or District of the United States, or place non-
contiguous to but subject to the jurisdiction thereof, and
a place in any other State, Territory, or District of the
United States, or place noncontiguous to but subject to
the jurisdiction thereof, on any vessel or vehicle of any
description operated by a common carrier, which vessel
or vehicle is carrying passengers for hire: Provided, That
it shall be lawful to transport on any such vessel or vehic-
le small arms ammunition in any quantity, and such fuses,
torpedoes, rockets, or other signal devices, as may be es-
ential to promote safety in operation, and properly packed
and marked samples of explosives for laboratory exami-

(858)

Offenses Against Foreign and Interstate Com 850

nation, not exceeding a net weight of one half pound each,
and not exceeding twenty samples at one time in a single
vessel or vehicle; but such samples not to be carried in
that part of a vessel or vehicle which is intended for
the transportation of passengers for hire ; Provided, fur-
ther, That nothing in this section shall be construed to
prevent the transportation of military or naval forces
with their accompanying munitions of war on passenger
equipment vessels or vehicles. (R. S., ss. 4278, 5353. 30
May, 1908, 35 Stat. L., 554, c. 234, s. 1.)

§ 233. Interstate Commerce Commission to make
regulations for transportation of explosives. — The Inter-
state Commerce Commission shall formulate regulations
for the safe transportation of explosives, which shall be
binding upon all common carriers engaged in interstate
or foreign commerce which transport explosives by land.
Said commission, of its own motion, or upon application
made by any interested party, may make changes or
modifications in such regulations, made desirable by new
information or altered conditions. Such regulations shall
be in accord with the best known practicable means for
securing safety in transit, covering the packing, mark-
ing, loading, handling while in transit, and the precau-
tions necessary to determine whether the material when
offered is in proper condition to transport. Such regula-
tions, as well as all changes or modifications thereof,
shall take effect ninety days after their formulation and
publication by said commission and shall be in effect un-
til reversed, set aside, or modified. (R. S., ss. 4279, 5355.
30 May, 1908, 35 Stat. L., 555 c. 234, s. 2.)

§ 234. Liquid nitroglycerin, etc., not to be carried on
certain vessels and vehicles. — It shall be unlawful to
transport, carry, or convey liquid nitroglycerin, fulmi-
nate in bulk in dry condition, or other like explosive, be-
tween a place in a foreign country and a place within or
subject to the jurisdiction of the United States, or be-
tween a place in one State, Territory, or District of the
United States, or place noncontiguous to but subject to
the jurisdiction thereof, and a place in any other State,
Territory, or District of the United States, or place non-
contiguous to but subject to the jurisdiction thereof, on

860 Federal Criminal Law Procedure.

any vessel or vehicle of any description operated by a
common carrier in the transportation of passengers or
articles of commerce by land or water. (30 May, 1908,
35 Stat. L., 555, c, 234, s. 3.)

§ 235. Marking of packages of explosives; deceptive
marking'. — Every package containing explosives or other
dangerous articles when presented to a common carrier
for shipment shall have plainly marked on the outside
thereof the contents thereof; and it shall be unlawful for
any person to deliver, or cause to be delivered, to any
common carrier engaged in interstate or foreign com-
merce by land or water, for interstate or foreign trans-
portation, or to carry upon any vessel or vehicle engaged
in interstate or foreign transportation, any explosive, or
other dangerous article, under any false or deceptive
marking, description, invoice, shipping order, or other
declaration, or without informing the agent of such car-
rier of the true character thereof, at or before the time
such delivery or carriage is made. Whoever shall know-
ingly violate, or cause to be violated, any provision of
this section, or of the three sections last preceding, or
any regulation made by the Interstate Commerce Com-
mission in pursuance thereof, shall be fined not more than
two thousand dollars, or imprisoned not more than eigh-
teen months, or both. (30 May, 1908, 35 Stat. L., 555, c.
234, ss. 4, 5.)

§ 236. Death or bodily injury caused by such trans-
portation.— When the death or bodily injury of any per-
son is caused by the explosion of any article named in
the four sections last preceding while the same is being-
placed upon any vessel or vehicle to be transported in
violation thereof, or while the same is being so trans-
ported, or while the same is being removed from such
vessel or vehicle, the person knowingly placing, or aid-
ing or permitting the placing, of such articles upon any
such vessel or vehicle, to be so transported, shall be im-
prisoned not more than ten years, (R. S., s. 5354.)

237. Importation and transportation of lottery tick-
ets, etc. — Whoever shall bring or cause to be brought in-
to the United Stales or any place subject to the jurisdic-
tion thereof, from any foreign country, for the purpose

Offenses Against Foreign and Interstate Com. 861.

of disposing of the same, any paper, certificate, or in-
strument purporting to be or to represent a ticket,
chance, share, or interest in or dependent upon the event
of a lottery, gift enterprise, or similar scheme, offering
jDrizes dependent in whole or in part upon lot or chance,
or any advertisement of, or list of the prizes drawn or
awarded by means of, any such lottery, gift enterprise,
or similar scheme; or shall therein knowingly deposit or
cause to be deposited with any express company or other
common carrier for carriage, or shall carry, from one
State, Territory, or District of the United States, or place
noncontiguous to but subject to the jurisdiction thereof,
to any other State, Territory, or District of the United
States, or place noncontiguous to but subject to the juris-
diction thereof, or from any place in or subject to the
jurisdiction of the United States through a foreign coun-
try to any place in or subject to the jurisdiction thereof
or from any place in or subject to the jurisdiction of the
United States to a foreign country, any paper, certificate,
or instrument purporting to be or to represent a ticket,
chance, share, or interest in or dependent upon, the event
of any such lottery, gift enterprise, or similar scheme,
or any advertisement of, or list of the prizes drawn or
awarded by means of, any such lottery, gift enterprise,
or similar scheme, or shall knowingly take or receive,
or cause to be taken or received, any such paper, certifi-
cate, instrument, advertisement, or list so brought, de-
posited, or transported, shall, for the first offense be fined
not more than one thousand dollars, or imprisoned not
more than two years, or both; and for any subsequent of-
fense shall.be imprisoned not more than two years. (2
Mar., 1895, 28 Stat. L., 963, c. 191, s. 1; 2 Supp., 435.)

France v. U. S., 164 U. S., 676; S. v. Ames, 95 Fed. Rep., 453; U. S.
Champion v. Ames, 188 U. S., 321; v. Whelpley, 125 Fed. Rep., 616.
Francis v. U. S., 188 U. S., 375; U.

§ 238. Interstate shipment of intoxicating liquors;
delivery of to be made only to bona fide consignee. — Any
officer, agent, or employee of any railroad company, ex-
press company, or other common carrier, who shall know-
ingly deliver or cause to be delivered to any person other
than the person to whom it has been consigned, unless
upon the written order in each instance of the bona fide

862 Federal Criminal Law Procedure.

consignee, or any fictitous person, or to any person under
a fictitous name, any spirituous, vinous, malted, fer-
mented, or other intoxicating liquor of any kind which
has been shipped from one State, Territory, or District
of the United States, or place noncontiguous to but sub-
ject to the jurisdiction thereof, into any other State, Ter-
ritory, or District of the United States, or place noncon-
tiguous to but subject to the jurisdiction thereof, or from
any foreign country into any State, Territory, or Dis-
trict of the United States, or place noncontiguous to but
subject to the jurisdiction thereof, shall be fined not more
than five thousand dollars, or imprisoned not more than
two years, or both.

§ 239. Common carrier, etc., not to collect purchase
price of interstate shipment of intoxicating liquors. — Any
railroad company, express company, or other common
carrier, or any other person who, in connection with the
transportation of any spirituous, vinous, malted, ferment-
ed, or other intoxicating liquor of any kind, from one
State, Territory, or District of the United States, or place
noncontiguous to but subject to the jurisdiction thereof,
into any other State, Territory, or District of the United
States, or place noncontiguous to but subject to the ju-
risdiction thereof, or from any foreign country into any
State, Territory, or District of the United States, or place
noncontiguous to but subject to the jurisdiction thereof,
shall collect the purchase price or any part thereof, be-
fore, on, or after delivery, from the consignee, or from
any other fjerson, or shall in any manner act as the agent
of the buyer or seller of any such liquor, for the purpose
of buying or selling or completing the sale thereof, sav-
ing only in the actual transportation and delivery of the
same, shall be fined not more than five thousand dollars.

§ 240. Packages containing intoxicating liquors
shipped in interstate commerce to be marked as such. —
Whoever shall knowingly ship or cause to be shipped,
from one Stale, Territory, or District of the United
Stales, or place noncontiguous to but subject to the ju-
risdiction thereof, into any other State, Territory, or Dis-
trict of the I'nitc.l States, or place noncontiguous to but
subjeel tn the jurisdiction thereof, or from any foreign

Offenses Against Foreign and Interstate Com. 863

country into any State, Territory, or District of the Unit-
ed States, or place noncontiguous to but subject to the
jurisdiction thereof, any package of or package contain-
ing any spirituous, vinous, malted, fermented, or other
intoxicating liquor of any kind, unless such package be
so labeled on the outside cover as to plainly show the
name of the consignee, the nature of its contents, and
the quantity contained therein, shall be fined not more
than five thousand dollars ; and such liquor shall be for-
feited to the United States, and may be seized and con-
demned by like proceedings as those provided by law for
the seizure and forfeiture of property imported into the
United States contrary to law.

§ 241. Importation of certain wild animals, birds, and
reptiles forbidden. — The importation into the United
States, or any Territory or District thereof, of the mon-
goose, the so-called "flying foxes" or fruit bats, the Eng-
lish sparrow, the starling, and such other birds and ani-
mals as the Secretary of Agriculture may from time to
time declare to be injurious to the interests of agricul-
ture or horticulture, is here prohibited; and all such birds
and animals shall, upon arrival at any port of the United
States, be destroyed or returned at the expense of the
owner. No person shall import into the United States
or into any Territory or District thereof, any foreign wild
animal or bird, except under special permit from the Sec-
retary of Agriculture : Provided, That nothing in this sec-
tion shall restrict the importation of natural history spec-
imens for museums or scientific collections, or of certain
cage birds, such as domesticated canaries, parrots, or
such other birds as the Secretary of Agriculture may
designate. The Secretary of the Treasury is hereby au-
thorized to make regulations for carrying into effect the
provisions of this section. (25 May, 1900, 31 Stat. L.,
188, c. 553, s. 2; 2 Supp., 1174.)

§ 242. Transportation of prohibited animals. — It shall
be unlawful for any person to deliver to any common car-
rier for transportation, or for any common carrier to
transport from any State, Territory, or District of the
United States, to any other State, Territory, or District
thereof, any foreign animals or birds, the importation of

864 Federal Criminal Law Procedure.

which is prohibited, or the dead bodies or parts thereof
of any wild animals or birds, where such animals or birds
have been killed or shipped in violation of the laws of
the State, Territory, or district in which the same were
killed, or from which they were shipped: Provided, That
nothing herein shall prevent the transportation of any
dead birds or animals killed during the season when the
same may be lawfully captured, and the export of which
is not prohibited by law in the State, Territory, or Dis-
trict in which the same are captured or killed : Provided
further, That nothing herein shall prevent the importa-
tion, transportation, or sale of birds or bird plumage
manufactured from the feathers of barnyard fowls. (25
May, 1900, 31 Stat. L., 188, c, 553, s. 3; 2 Supp., 1174.)

U. S. v. Smith, 115 Fed. Rep., 423;
U. S. v. Thompson, 147 Fed. Rep., 637.

§ 243. Marking of packages. — All packages contain-
ing the dead bodies, or the plumage, or parts thereof, of
game animals, or game or other wild birds, when shipped
in interstate or foreign commerce, shall be plainly and
clearly .marked, so that the name and address of the ship-
per, and the nature of the contents, may be readily as-
certained on an inspection of the outside of such package.
(25 May, 1900, 31 Stat. L., 188, c. 553, s. 4; 2 Supp., 1174.)

§ 244. Penalty for violation of preceding sections. —
For each evasion or violation of any provision of the
three sections last preceding, the shipper shall be fined
not more than two hundred dollars; the consignee know-
ingly receiving such articles so shipped and transported
in violation of said section shall be fined not more than
two hundred dollars; and the carrier knowingly carrying
or transporting the same in violation of said sections
shall be fined not more than two hundred dollars. (25
May, 1900, 31 Stat. L., 188, c. 553, s. 4; 2 Supp., 1174.)

§ 245. Depositing obscene books, etc., with common
carrier. — Whoever shall bring or cause to be brought in-
1o the United States or any place subject to the jurisdic-
tion thereof, from any foreign country, or shall therein
knowingly deposit or cause to be deposited with any ex-
press company or other common carrier, for carriage
from one State, Territory, or District of the United
S1;i1cs, of place noncontiguous to but subject to the ju-

Offenses Against Foreign and Interstate Com. 865

risdiction thereof, to any other State, Territory, or Dis-
trict of the United States, or place noncontiguous to but
subject to the jurisdiction thereof, or from any place in
or subject to the jurisdiction of the United States through
a foreign country to any place in or subject to the juris-
diction thereof, or from any place in or subject to the ju-
risdiction of the United States to a foreign country, any
obscene, lewd, or lascivious, or filthy book, pamphlet,
picture paper, letter, writing, print, or other matter of in-
decent character or any drug medicine, article, or thing
designed, adapted, or intended for preventing concep-
tion, or producing abortion, or for any indecent or im-
moral use, or any written or printed card, letter, circular,
book, pamphlet, advertisement or notice of any kind giv-
ing information, directly or indirectly, where, how, or of
whom, or by what means any of the hereinbefore-men-
tioned articles, matters, or things may be obtained or
made; or whoever shall knowingly take or cause to be
taken from such express company or other common car-
rier any matter or thing the depositing of which for car-
riage is herein made unlawful, shall be fined not more
than five thousand dollars, or imprisoned not more than
five years, or both. (8 Feb., 1897, 29 Stat. L., 512, c. 172;
2 Supp., 547. 8 Feb., 1905, 33 Stat. L., 705, c. 550.)

CHAPTER TEN.

THE SLAVE TRADE AND PEONAGE.

§ 246. Confining or detaining slaves on board vessel.

247. Seizing slaves on foreign shore.

248. Bringing slaves into the United States.

249. Equipping vessels for slave trade.

250. Transporting persons to be held as slaves.

251. Hovering on coast with slaves on board.

252. Serving in vessels engaged in the slave trade.

253. Receiving or carrying away any person to be sold or held as

a slave.

254. Equipping, etc., vessel for slave trade.

255. Penalty on persons building, equipping, etc.

256. Forfeiture of vessel transporting slaves.

257. Receiving persons on board to be sold as slaves.

258. Vessels found hovering on coast.

259. Forfeiture of interest in vessels transporting slaves.

260. Seizure of vessels engaged in the slave trade.

261. Proceeds of condemned vessel, how distributed.

262. Disposal of persons found on board seized vessel.

263. Apprehension of officers and crew.

264. Removal of persons delivered from seized vessels.

265. To what port captured vessels sent.

266. When owners of foreign vessels shall give bond.

267. Instructions to commanders of armed vessels.

268. Kidnapping.

269. Holding or returning persons to peonage.

270. Obstructing enforcement of preceding section. '

271. Bringing kidnapped persons into United States.

§ 24fi. Confining or detaining slaves on board vessel.

Whoever being of the crew or ship's company of any
foreign vessel engaged in the slave trade, or being of the
crew or ship's company of any vessel owned wholly or in
part or navigated for or in behalf of any citizen of the
United SI ales, forcibly confines or detains on board such
vessel any person as a slave, or on board such vessel, of-
fers <»r attempts to sell as a slave any such person, or on
the high seas, or anywhere on tide water, transfers or de-
livers to any other vessel any such person with in-
tent to make sneh person a slave, or lands or de-
li vers on shore from on board such vessel any per-
son with intent to make sale of, or having previously sold

(866)

The Slave Trade and Peonage. 867

such person as a slave, is a pirate, and shall be impris-
oned for life. (B. S., s. 5375. 15 Jan., 1897, 29 Stat. L.,
487, c. 29, s. 2; 2 Supp., 538.)

U. S. v. Corrie, 23 L. R., 145, 25 v. Libby, 1 Wood & M., 221, 26 Fed.
Fed. Cas., 658; U. S. v. Gordon, 5 Cas., 928.
Blatch., 18, 25 Fed. Cas., 1364; U. S.

§ 247. Seizing slaves on foreign shore. — Whoever,
being of the crew or ship's company of any foreign ves-
sel engaged in the slave trade, or being of the crew or
ship's company of any vessel owned in whole or part, or
navigated for, or in behalf of, any citizen of the United
States, lands from such vessel, and on any foreign shore,
seizes any person with intent to make such person a slave,
or decoys, or forcibly brings, or carries or receives such
person on board such vessel, with like intent, is a pirate,
and shall be imprisoned for life. (B. S., s. 5376. 15 Jan.,
1897, 29 Stat. L., 487, c. 29, s. 2; 2 Supp., 538.)

U. S. v. Corrie, 23 L. R., 145, 25
Fed. Cas., 658.

§ 248. Bringing slaves into the United States. — Who-
ever brings within the jurisdiction of the United States,
in any manner whatsoever, any person from any foreign
kingdom or country, or from sea, or holds, sells, or other-
wise disposes of, any person so brought in, as a slave, or
to be held to service or labor, shall be fined not more than
ten thousand dollars, one-half to the use of the United
States and the other half to the use of the party who
prosecutes the indictment to effect; and moreover, shall
be imprisoned not more than seven years. (B. S., s. 5377.)

U. S. v. Libby, 1 Wood & M., 221,
26 Fed. Cas., 928.

§ 249. Equipping vessels for slave trade, — Whoever
builds, fits out, equips, loads, or otherwise prepares, or
sends away, either as master, factor, or owner, any ves-
sel, in any port or place within the jurisdiction of the
United States, or causes such vessel to sail from any port
or place whatsoever, within such jurisdiction, for the pur-
pose of procuring any person from any foreign kingdom
or country to be transported to any port or place whatso-
ever, to be held, sold, or otherwise disposed of as a slave,
or held to service or labor, shall be fined not more than
five thousand dollars one-half to the use of the United
States and the other half to the use of the person prose-

868 Federal Criminal Law Procedure.

cuting the indictment to effect; and shall, moreover, be
imprisoned not more than seven years. (R. S., s. 5378.)

§ 250. Transporting persons to be held as slaves. —
Whoever, within the jurisdiction of the United States,
lakes on board, receives or transports from any foreign
kingdom, or country or from sea, any person in any ves-
sel for the purpose of holding, selling, or otherwise dis-
posing of such person as a slave or to be held to service
or labor, shall be punished as prescribed in the section
last preceding. (R. S., s. 5379.)

§ 251. Hovering on coast with slaves on board. —
Whoever, being the captain, master, or commander of
any vessel found in any river, port, bay, harbor, or on
the high seas within the jurisdiction of the United States,
or hovering on the coast thereof, having on board any
person, for the purpose of selling such person as a slave,
or with intent to land such person for any such purpose,
shall be fined not more than ten thousand dollars and
imprisoned not more than four years. (R. S., s. 5380.)

§ 252. Serving in vessels engaged in slave trade. —
Whoever, being a citizen of the United States, or other
person residing therein, voluntarily serves on board of
any vessel employed or made use of in the transportation
of slaves from any foreign country or place to another,
shall be fined not more than two thousand dollars and im-
prisoned not more than two years. (R. S., ss. 5381, 5382.)

§ 253. Receiving or carrying away any person to be
sold or held as a slave. — Whoever, being the master or
owner or person having charge of any vessel, receives on
board any other person, with the knowledge or intent
that such person is to be carried from any place subject
to the jurisdiction of the United States to any other
place, to be held or sold as a slave, or carries away from
any place subject to the jurisdiction of the United States
any such person, with the intent that he may be so held,
or sold as slave, shall be fined not more than five thou-
sand dollars, or imprisoned not more than five years, or
both. (R. S., s. 5524.)

§ 254. Equipping, etc., vessel for slave trade. — No
person shall, for himself or for another, as master, fac-
tor, or owner, build, 5t, equip, load, or otherwise prepare

The Slave Trade and Peonage. 869

any vessel in any port or place within the jurisdiction of
the United States, or cause any vessel to sail from any
port or ]3lace within the jurisdiction of the United States,
for the purpose of procuring any person from any foreign
kingdom, place, or country to be transported to any port
or place whatsoever, to be held, sold, or otherwise dis-
posed of, as a slave, or to be held to service or labor; and
every vessel so built, fitted out, equipped, laden, or other-
wise prepared, with her tackle, apparel, furniture, and
lading, shall be forfeited; one moiety to the use of the
United States and the other to the use of the person who
sues for the forfeiture and prosecutes the same to effect.
(R. S., s. 5551.)

The Emily, 9 Wheat., 281; U. S. v. jr., 264, 24 Fed. Cas., 1280; Re Sah
Gooding, 12 Wheat., 460; The Slavers. Quah, 31 Fed. Rep., 327. ■
2 Wall., 350; U. S. v. Brune, 2 Wall..

§ 255. Penalty on persons building, equipping, etc. —
Whoever so builds, fits out, equips, loads, or otherwise
prepares or sends away any vessel, knowing or intending
that the same shall be employed in such trade or busi-
ness, contrary to the provisions of the section last pre-
ceding, or in any way aids or abets therein, shall, besides
the forfeiture of the vessel, pay the sum of two thousand
dollars; one moiety thereof to the use of the United States
and the other moiety thereof to the use of the person who
sues for and prosecutes the same to effect. (R. S., s.
5552.)

§ 256. Forfeiture of vessel transporting slaves. —
Every vessel employed in carrying on the slave trade or
on which is received or transported any person from any
foreign kingdom or country, or from sea, for the purpose
of holding, selling, or otherwise disposing of such per-
son as a slave, or of holding such person to service or
labor, shall, together with her tackle, apparel, furniture,
and the goods and effects which may be found on board,
or which may have been imported thereon in the same
voyage, be forfeited ; one moiety to the use of the United
States and the other to the use of the person who sues
for and prosecutes the forfeiture to effect. (R. S. s. 5553.)

§ 257. Receiving persons on board to be sold as slaves.
— Whoever, being a citizen of the United States, takes on
board, receives, or transports any person for the purpose

870 Federal Criminal Law Procedure.

of selling such person as a slave shall, in addition to the
forfeiture of the vessel, pay for each person so received
on board or transported the sum of two hundred dollars,
to be recovered in any court of the United States; the one
moiety thereof to the use of the United States and the
other moiety to the use of the person who sues for and
prosecutes the same to effect. (R. S., s. 5554.)

§ 258. Vessels found hovering on coast. — Every ves-
sel which is found in any river, port, bay, or harbor, or
on the high seas, within the jurisdiction of the United
States, or hovering on the coasts thereof, and having on
board any person, with intent to sell such person as a
slave, or with intent to land the same for that purpose,
either in the United States or elsewhere, shall, together
with her tackle, apparel, furniture, and the goods or ef-
fects on board of her, be forfeited to the United States.
(R. S., s. 5555.)

§ 259. Forfeiture of interest in vessels transporting
slaves. — It shall be unlawful for any citizen of the United
States, or other person residing therein, or under the
jurisdiction thereof, directly or indirectly to hold or have
any right or property in any vessel employed or made
use of in the transportation or carrying of slaves from
one foreign country or place to another, and any such
right or property shall be forfeited, and may be libeled
and condemned for the use of the person suing for the
same. Whoever shall violate the prohibition of this sec-
tion shall also forfeit and pay a sum of money equal to
double the value of his right or property in such vessel ;
and shall also forfeit a sum of money equal to double
the value of the interest he had in the slaves which at
any time may be transported or carried in such vessels.
(R. S., s. 5556.)

§ 260. Seizure of vessels engaged in the slave trade.
— The President is authorized, when he deems it expe-
dient, to man and employ any of the armed vessels of the
United States to cruise wherever he may judge attempts
are making to carry on the slave trade, by citizens or
residents of the United States, in contravention of laws
prohibitory of the same; and, in such case, he shall in-
struct the commanders of such armed vessels to seize,

The Slave Trade and Peonage. 871

take, and bring into any port of the United States, to be
proceeded against according to law, all American ves-
sels, wheresoever found, which may have on board, or
which may be intended for the purpose of taking on
board, or of transporting, or may have transported any
person, in violation of the provisions of any act of Con-
gress prohibiting the traffic in slaves. (R. S., s. 5557.)

§ 261. Proceeds of condemned vessels, how distribut-
ed.— The proceeds of all vessels, their tackle, apparel, and
furniture, and the goods and effects on board of them,
which are so seized, prosecuted, and condemned, shall be
paid into the Treasury of the United States. (R. S., s.
5558.)

§ 262. Disposal of persons found on board seized ves-
sel.— The officers of the vessel making such seizure shall
safely keep every person found on board of any vessel
so seized, taken, or brought into port for condemnation,
and shall deliver every such person to the marshal of the
district into which he may be brought, if into a port of
the United States, or if elsewhere, to such person as may
unlawfully appointed by the President, in the manner di-
rected by law, transmitted to the President, as soon as
may be after such delivery, a descriptive list of such per-
sons, in order that he may give directions for the dispos-
al of them. (R. S., s. 5559.)

§ 263. Apprehension of officers and crew. — The com-
manders of such commissioned vessels shall cause to be
apprehended and taken into custody every person found
on board of such offending vessel so seized and taken, be-
ing of the officers or crew thereof, and him convey, as soon
as conveniently may be, to the civil authority of the Unit-
ed States, to be proceeded against in due course of law.
(R. S., s. 5560.)

§ 264. Removal of persons delivered from seized ves-
sels..— The President is authorized to make such regula-
tions and arrangements as he may deem expedient for
the safe keeping, support, and removal beyond the limits
of the United States of all such persons as may be so de-
livered and brought within its jurisdiction. (R. S., s.
5561.)

872 Federal Criminal Law Procedure.

§ 265. To what port captured vessels sent. — It shall
be the duty of the commander of any armed vessel of
the United States, whenever he makes any capture un-
der the preceding provisions, to bring the vessel and her
cargo, for adjudication, into some port of the State, Ter-
ritory, or District to which such vessel so captured may
belong, if he can ascertain the same ; if not, then into any
convenient port of the United States. (R. S., s. 5563.)

§ 266. When owners of foreign vessels shall give
bond. — Every owner, master, or factor of any foreign ves-
sel clearing from any port within the jurisdiction of the
United States, and suspected to be intended for the slave
trade, and the suspicion being declared to the officer of
the customs by any citizen, on oath, and such informa-
tion being to the satisfaction of the officer, shall first give
bond, with sufficient sureties, to the Treasurer of the
United States that none of the natives of any other for-
eign country or place shall be taken on board such vessel
to be transported or sold as slaves in any other foreign
port or place whatever, within nine months thereafter.
(R. S., s. 5564.)

§ 267. Instructions to commanders of armed vessels.
— The President is authorized to issue instructions to the
commanders of the armed vessels of the United States,
directing them, whenever it is practicable, and under
such rules and regulations as he may prescribe, to pro-
ceed directly to the country from which they were taken,
and there hand over to the agent of the United States
all such persons, delivered from on board vessels seized
in the prosecution of the slave trade; and they shall
afterward bring the captured vessels and persons en-
gaged in prosecuting such trade to the United States for
trial and adjudication. R. S., s. 5567.

§ 268. Kidnaping. — Whoever kidnaps or carries away
any other person, with the intent that such other
person be sold into involuntary servitude, or held as a
slave; or who entices, persuades, or induces any other
person to go on board any vessel or to any other place
with the intent that he may be made or held as a slave,
or sent out of the country to be so made or held ; or who
in any way knowingly aids in causing any other person

The Slave Trade and Peonage. 873

to be held, sold, or carried away to be held or sold as a
slave, shall be fined not more than five thousand dollars,
or imprisoned not more than five years, or both. (R. S.,
s. 5525.)

§ 269. Holding or returning person to peonage. —
Whoever holds, arrests, returns, or causes to be held,
arrested, or returned, or in any manner aids in the arrest
or return of any person to a condition of peonage, shall
be fined not more than five thousand dollars, or impris-
oned not more than five years, or both. (R. S., s. 5526.)

Clyatt v. U. S.. 197 U. S., 207; 252; U. S. v. McClellan, 127 Fed. Rep.,

Peonage; Cases, 123 Fed. Rep., 671; 971; U. S. v. Cole, 153 Fed. Rep., 801;

136 Fed. Rep., 707; 138 Fed. Rep., U. S. v. Clement, 171 Fed. Rep., 974.

686; U. S. v. Eberhart, 127 Fed. Rep.,

§ 270. Obstructing execution of above. — Whoever ob-
structs, or attempts to obstruct, or in any way interferes
with or prevents the enforcement of the section last pre-
ceding, shall be liable to the penalties therein prescribed.
(R. S. s. 5527).

§ 271. Bringing kidnapped persons into United
States. — Whoever shall knowingly and willfully bring
into the United States or any place subject to the juris-
diction thereof, any person inveigled or forcibly kidnap-
ped in any other country, with intent to hold such person
so inveigled or kidnapped in confinement or to any in-,
voluntary servitude; or whoever shall knowingly and
willfully sell, or cause to be sold, into any condition of
involuntary servitude, any other person for any term
whatever; or whoever shall knowingly and willfully hold
to involuntary servitude any person so brought or sold,
shall be fined not more than five thousand dollars and
imprisoned not more than five years. (23 June, 1874, 18
Stat. L. 251, c. 464, s. 1; 1 Supp., 46).

CHAPTER ELEVEN.

OFFENSES WITHIN THE ADMIRALTY AND MARITIME AND

THE TERRITORIAL JURISDICTION OF THE

UNITED STATES.

§ 272. Places within or waters upon which sections of this chapter
shall apply.

273. Murder.

274. Manslaughter.

275. Punishment for murder; for manslaughter.

276. Assault with intent to commit murder, rape, robbery, etc.

277. Attempt to commit murder or manslaughter.

278. Rape.

279. Having carnal knowledge of female under sixteen.

280. Seduction of female passenger on vessel.

281. Payment of fine to female seduced; evidence required; limita-

tion on indictment.

282. Loss of life by misconduct of officers, etc., of vessels.

283. Maiming.

284. Robbery.

285. Arson of dwelling house.

286. Arson of other buildings, etc.

287. Larceny.

288. Receiving, etc., stolen goods.

289. Laws of States adopted for punishing wrongful acts, etc.

§ 272. Maritime and territorial jurisdiction prescrib-
ed.— The crimes and offenses denned in this chapter
shall be punished as herein prescribed:

First. When committed upon the high seas, or on any
other waters within the admiralty and maritime juris-
diction of the United States and out of the jurisdiction
of any particular State, or when committed within the
admiralty and maritime jurisdiction of the United States
and out of the jurisdiction of any particular State on
board any vessel belonging in whole or in part to the
United States or any citizen thereof, or to any corpo-'
ration created by or under the laws of the United States,
or of any State, Territory, or District thereof. (R. S. s.
5339.)

Wynne v. U. S., 217 U. S., 234.

Second. When committed upon any vessel registered
licensed, or enrolled under the laws of the United States,

(874)

Offenses, Etc., of the United States. 875

and being on a voyage upon the waters of any of the Great
Lakes, namely: Lake Superior, Lake Michigan, Lake
Huron, Lake Saint Clair, Lake Erie, Lake Ontario, or
any of the waters connecting any of said lakes, or upon
the River Saint Lawrence where the same constitutes the
International boundary line. (4 Sept., 1890, 26 Stat. L.,
421, c. 874 s. 1; 1 Supp., 799.)

U. S. v. Rogers, ISO U. S., 249; Ex S. v. Rogers, 46 Fed. Rep., 1; U. S.
parte Byers, 32 Fed. Rep., 46, 404; U. v. Peterson, 64 Fed. Rep., 14S.

Third. "When committed within or on any lands re-
served or acquired for the exclusive use of the United
States, and under the exclusive jurisdiction thereof, or
any place purchased or otherwise acquired by the United
States by consent of the legislature of the State in which
the same shall be, for the erection of a fort, magazine,
arsenal, dockyard, or other needful building. (Const.,
Art. 1, sec. 8, cl. 17.)

Fourth. On any island, rock, or key, containing de-
posits of guano, which may, at the discretion of the Pres-
ident, be considered as appertaining to the United States.
(R. S., s. 5570.)

Jones v. U. S., 137 U. S., 202.

§ 273. Murder. — Murder is the unlawful killing of a
human being with malice aforethought. Every murder
perpetrated by poison, lying in wait, or any other kind of
willful, deliberate, malicious, and premeditated killing;
or committed in the perpetration of, or attempt to perpe-
trate any arson, rape, burglary, or robbery; or perpetrat-
ed from a premeditated design unlawfully and malicious-
ly to effect the death of any human being other than him
who is killed, is murder in the first degree. Any other
murder is murder in the second degree. (R. S., s. 5339.)

U. S. v. Cornell, 25 Fed. Cas., 646; v. Meagher, 37 Fed. Rep., 875; U. S

U. S. v. Holmes, 5 Wheat., 412; U. S. v. Clark, 46 Fed. Rep., 633; U. S. v

v. Rogers, 4 How., 567; Ex parte Crew Hewecker, 79 Fed. Rep., 59; U. S. v

Dog, 109 U. S., 556 Cook v. U. S., Carter, 84 Fed. Rep., 622; U. S. v,

138 U. S.. 157; Ball v. U. S., 140 U. Lewis, 111 Fed. Rep., 630; U. S. v

S., 118; St. Clair v. U. S., 154 U. S., Linnier, 125 Fed. Rep., 83; U. S. v

134; Sparf & Hansen v. U. S.. 156 U. Tully, 140 Fed. Rep., 899; U. S. v

S., 51; Winston v. U. S., 172 U. S., Newth, 149 Fed. Rep., 302; U. S. v

303; Battle v. U. S.. 209 U. S.. 36; U. Battle, 154 Fed. Rep., 540; U. S. v

S. v. Martin, 14 Fed. Rep., 817; U. S. Guiteau, 1 Mackey (D. C), 498.

§ 274. Manslaughter. — Manslaughter is the unlawful
killing of a human being without malice. It is of two
kinds;

876 Federal Criminal Law Procedure.

First. Voluntary — upon a sudden quarrel or heat of
passion.

Second. Involuntary — in the commission of an unlaw-
ful act not amounting to a felony, or in the commission
of a lawful act which might produce death, in an unlaw-
ful manner, or without due caution and circumspection.
(R. S., s. 5341.)

Roberts v. U. S., 126 Fed. Rep., S97.

§ 275. Punishment for murder; for manslaughter, —
Every person guilt}^ of murder in the first degree shall
suffer death. Every person guilty of murder in the sec-
ond degree shall be imprisoned not less than ten years
and may be imprisoned for life. Every person guilty of
voluntary manslaughter shall be imprisoned not more
than ten years. Every person guilty of involuntary man-
slaughter shall be imprisoned not more than three years,
or fined not exceeding one thousand dollars, or both.
(R. S., ss. 5339, 5343.)

§ 276. Assault with intent to commit murder, rape,
robbery, etc. — Whoever shall assault another with intent
(to commit murder, or rape, shall be imprisoned not more
than twenty years. Whoever shall assault another with
intent to commit any felony, except murder, or rape, shall
be fined not more than three thousand dollars, or impris-
oned not more than ten years, or both. Whoever, with
intent to do bodily harm, and without just cause or ex-
cuse, shall assault another with a dangerous weapon, in-
strument, or other thing, shall be fined not more than one
thousand dollars, or imprisoned not more than five years,
or both. Whoever shall unlawfully strike, beat, or wound
another, shall be fined not more than five hundred dol-
lars, or imprisoned not more than six months, or both.
Whoever shall unlawfully assault another, shall be fined
not more than three hundred dollars, or imprisoned not
more than three months, or both. (R. S., s. 5346.)

§ 277. Attempt to commit murder or manslaughter.
• — Whoever shall attempt to commit murder or man-
slaughter, except as provided in the preceding section,
shall be fined not more than one thousand dollars and im-
prisoned not more than three years. (R. S., s. 5342.)

Offenses, Etc., of the United States. 877

§ 278. Rape. — Whoever shall commit the crime of
rape shall suffer death. (R. S., s. 5345. 9 Feb., 1889, 25
Stat. L., 658, c. 120; 1 Supp., 641.)

§ 279. Having carnal knowledge of female under 16.
— Whoever shall carnally and unlawfully know any fe-
male under the age of sixteen years, or shall be accessory
to such carnal and unlawful knowledge before the fact,
shall, for a first offense, be imprisoned not more than fif-
teen years, and for a subsequent offense be imprisoned
not more than thirty years. (9 Feb., 1889, 25 Stat. L.,
658, c. 120; 1 Supp./ 641.)

§ 280. Seduction of female passenger on vessel. —
Every master, officer, seaman, or other person employed
on board of any American vessel who, during the voyage,
under promise of marriage, or by threats, or the exercise
of authority, or solicitation, or the making of gifts or
presents, seduces and has illicit connection with any fe-
male passenger, shall be fined not more than one thous-
and dollars or imprisoned not more than one year, or
both; but subsequent intermarriage of the parties may
be pleaded in bar of conviction. (R. S., s. 5349.)

§ 281. Payment of fine to female seduced; evidence
required; limitation on indictment. — When a person is
convicted of a violation of the section last preceding, the
court may, in its discretion, direct that the amount of the
fine, when paid, be paid for the use of the female seduced,
or her child, if she have any ; but no conviction shall be
had on the testimony of the female seduced, without other
evidence, nor unless the indictment is found within one
year after the arrival of the vessel on which the offense
was committed at the port of its destination. (R. S., ss.
5350, 5351.)

§ 282. Punishment for loss of life by misconduct of
officers, owners, charterers, inspectors, etc., of vessels.. —
Every captain, engineer, pilot, or other person employed
on any steamboat or vessel, by whose misconduct, neg-
ligence, or inattention to his duties on such vessel the life
of any person is destroyed, and every owner, charterer,
inspector, or other public officer, through whose fraud,
neglect, connivance, misconduct, or violation of law the
life of any person is destroyed, shall be fined not more

878 Federal Criminal Law Procedure.

than ten thousand dollars, or imprisoned not more than
ten years, or both: Provided, That, when the owner or
charterer of any steamboat or vessel shall be a corpora-
tion, any executive officer of such corporation, for the
time being actually charged with the control and man-
agement of the operation, equipment, or navigation of
such steamboat or vessel, who has knowingly and will-
fully caused or allowed such fraud, neglect, connivance,
misconduct or violation of law by which the life of any
person is destroyed shall be fined not more than ten thou-
sand dollars or imprisoned not more than ten years, or
both. (R. S., s. 5344. 3 Mar., 1905, 33 Stat. L.', 1025, c.
1454, s. 5.)

U. S. v. Holmes, 104 Fed. Rep., 884; 592; Van Schaick v. U. S., 159 Fed.
U. S. v. Van Schaick, 134 Fed. Rep., Rep., 847.

§ 283. Maiming. — Whoever with intent to maim or
disfigure, shall cut, bite, or slit, the nose, ear, or lip, or
cut out or disable the tongue, or put out or destroy an
eye or cut off or disable a limb or any member of another
person; or whoever, with like intent, shall throw or pour
upon another person, any scalding hot water, vitriol, or
other corrosive acid, or caustic substance whatever, shall
be fined not more than one thousand dollars, or impris-
oned not more than seven years, or both. (R. S., s. 5348.)

§ 284. Robbery. — Whoever, by force and violence, or
by putting in fear, shall feloniously take from the person
or presence of another anything of value, shall be im-
prisoned not more than fifteen years. (R. S., s. 5370.)

§ 285. Arson of dwelling house. — Whoever shall will-
fully and maliciously set fire to, burn, or attempt to burn,
or by means of a dangerous explosive destroy or attempt
to destroy, any dwelling house, or any store, barn, sta-
ble, or other building, parcel of a dwelling, house, shall
be imprisoned not more than twenty years. (R. S., s.
5385.)

14 A. G. Op., 559.

§ 286. Arson of arsenal, etc.; other building, etc. —
Whoever shall maliciously set fire to, burn, or attempt
to burn, or by any means destroy or injure, or attempt to
destroy or injure, any arsenal, armory, magazine, rope-
walk, ship-house, warehouse blockhouse, or barrack, or

Offenses, Etc., op the United States. 870

any store-house, barn, or stable not parcel of a dwelling
house or any other building not mentioned in the section
last preceding, or any vessel built, building, or undergo-
ing repair, or any light-house, or beacon, or any machin-
ery, timber, cables, rigging, or other materials or appli-
ances for building, repairing, or fitting out vessels, or any
pile of wood, boards, or other lumber, or any military,
naval, or victualing stores, arms or other munitions of
war, shall be fined not more than five thousand dollars
and imprisoned not more than twenty years. (R. S., s.
5386.)

U. S. v. Cardish, 143 Fed. Rep., 640.

§ 287. Larceny. — Whoever shall take and carry
away, with intent to steal or purloin, any personal prop-
erty of another, shall be punished as follows : If the prop-
erty taken is of a value exceeding fifty dollars, or is taken
from the person of another, by a fine of not more than
ten thousand dollars, or imprisonment for not more than
ten years, or both; in all other cases, by a fine of not more
than one thousand dollars, or by imprisonment not more
than one year, or both. If the property stolen consists of
any evidence of debt, or other written instrument, the
amount of money due thereon, or secured to be paid
thereby, and remaining unsatisfied, or which in any con-
tingency might be collected thereon, or the value of the
property the title to which is shown thereby, or the sum
which might be recovered in the absence thereof, shall
be deemed to be the value of the property stolen. (R. S.,
s. 5356.)

Ex parte Crow Dog 109 U. S., 556; Obs., 3, 26 Fed. Cas., 558; U. S. v.

U. S. v. Davis, 5 Mason. 356, 25 Fed. Maxon, 5 Blatch., 360, 26 Fed. Cas.,

Cas., 781; U. S. v. Davis, 2 N. Y. Leg. 1220; U. S. v. Morel, 13 Am. Jurist,

Obs., 35, 25 Fed. Cas., 784; U. S. v. 279, 26 Fed. Cas., 1310; Cochran v.

Hamilton, 1 Mason, 152, 26 Fed. Cas., U. S., 147 Fed. Rep., 206.
93; U. S. v. Jackson, 2 N. V. he?.

§ 288. Receiving, etc., stolen goods. — Whoever shall
buy, receive, or conceal, any money, goods, bank notes,
or other thing which may be the subject of larceny, which
has been feloniously taken, stolen, or embezzled, from any
other person, knowing the same to have been so taken,
stolen, or embezzled, shall be fined not more than one
thousand dollars and imprisoned not more than three
years; and such person may be tried either before or af-

880 Fedeeal Criminal Law Procedure.

ter the conviction of the principal offender. (R. S., s.
5357.)

Ex parte Crow Dog, 109 U. S., 556.
Bise v. U. S., 144 Fed. Rep., 374.

§ 289. Laws of States adopted for punishing wrong-
ful acts, etc. — Whoever, within the territorial limits of
any State, organized Territory, or district, but within or
upon any of the places now existing, or hereafter reserved
or acquired, described in section two hundred and seven-
ty-two of this act, shall do or omit the doing of any act
or thing which is not made penal by any law of Congress,
but which if committed or omitted within the jurisdic-
tion of the State, Territory, or District in which such
place is situated, by the laws thereof now in force would
be penal, shall be deemed guilty of a like offense and be
subject to a like punishment; and every such State, Ter-
ritorial, or District law shall, for the purposes of this sec-
tion continue in force, notwithstanding any subsequent
repeal or amendment thereof by any such State, Terri-
tory, or District. (R. S., s. 5391. 7 July, 1898, 30 Stat.
L., 717, s. 2; 2 Supp., 885.)

U. S. v. Hudson, 7 Cr„ 32; U. S. v. Cas., 791; U. S. v. Coppersmith, 4 Fed.

Paul, '6 Pet., 141; Ex parte Siebold, 100 Rep., 205; U. S. v. Barnaby, 51 Fed.

U. S., 388; Franklin v. U. S., 216 Rep., 23; In re Kelly, 71 Fed. Rep.,

U. S., 559; U. S. v. Barney, 24 Fed. 545.
Cas., 1011; U. S. v. Wright, 28 Fed.

CHAPTEE TWELVE.

PIRACY AND OTHER OFFENSES UPON THE SEAS.

§ 290. Piracy under the law of nations.

291. Mal-treatment of crew by officers of vessel.

292. Inciting revolt or mutiny on shipboard.

293. Revolt and mutiny on shipboard.

294. Seaman laying violent hands on his commander.

295. Abandonment of mariners in foreign ports.

296. Conspiracy to cast away vessel.

297. Plundering vessel in distress, etc.

298. Attacking vessel with intent to plunder.

299. Breaking and entering vessel, etc.

300. Owner destroying vessel at sea.

301. Other persons destroying or attempting to destroy vessel

at sea.

302. Robbery on shore by crew of piratical vessel.

303. Arming vessel to cruise against citizens of the United States.

304. Piracy under color of a foreign commission.

305. Piracy by subjects or citizens of a foreign state.

306. Running away with or yielding up vessel or cargo.

307. Confederating, etc., with pirates.

308. Sale of arms and intoxicants forbidden in Pacific islands.

309. Offenses under preceding section deemed on high seas.

310. "Vessels of the United States" defined.

§ 290. Piracy under the law of nations. — Whoever, on
the high seas, commits the crime of piracy as defined by
the law of nations, and is afterwards brought into or
found in the United States, shall be imprisoned for life.
(R. S., s. 5368. 15 Jan., 1897, 29 Stat. L., 487, c. 29, s. 2;
2 Supp., 538.)

U. S. v. Smith, 5 Wheat., 153, U. S. Friends, 166 U. S., 1; The Ambrose
v. Pirates, 5 Wheat., 184; The Three Light, 25 Fed. Rep., 408.

§ 291. Mal-treatment of crew by officers of vessel. —
"Whoever, being the master or officer of a vessel of the
United States, on the high seas, or on any other waters
within the admiralty and maritime jurisdiction of the
United States, beats, wounds, or without justifiable
cause, imprisons any of the crew of such vessel, or with-
holds from them suitable food and nourishment, or in-
flicts upon them any cruel and unusual punishment, shall
be fined not more than one thousand dollars, or impris-

(881)

882

Federal Criminal Law Procedure.

oned not more than five years or both. Nothing herein
contained shall be construed to repeal or modify section
forty-six hundred and eleven of the Revised Statutes.
(R. S., s. 5347. 3 Mar., 1897, 29 Stat. L., 691, c. 389, s.
18; 2 Supp., 609.)

U. S. v. Dauscher, 119 U. S., 407; U. 740; U. S. v. Freeman, 4 Mason, 505,

S. v. Alden, 1 Sprague, 95, 24 Fed. Cas., 25 Fed. Cas., 1208; U. S. v. Taylor, 2

768; U. S. v. Bennett, 3 Hughes, 466, 24 Sumn., 584, 28 Fed. Cas., 31; U. S.

Fed. Cas., 1111; U. S. v. Collins, 2 v. Winn, 3 Sumn., 209, 28 Fed. Cas.,

Curtis, 194, 25 Fed. Cas., 545; U. S. 733; Re Smith, 13 Fed. Rep., 25; U. S.

v. Cutler, 1 Curtis, 501, 25 Fed. Cas., v. Trice, 30 Fed. Rep., 490.

§ 292. Inciting revolt or mutiny on shipboard. — Who-
ever, being of the crew of a vessel of the United States,
on the high seas, or on any other waters within the ad-
miralty and maritime jurisdiction of the United States,
endeavors to make a revolt or mutiny on board such ves-
sel, on combines, conspires, or confederates with any
other person on board to make such revolt or mutiny, or
solicits, incites, or stirs up any other of the crew to dis-
obey or resist the lawful orders of the master or other
officer of such vessel, or to refuse or neglect their proper
duty on board thereof, or to betray their proper trust, or
assembles with others in a tumultuous and mutinous
manner, or makes a riot on board thereof, or unlawfully
confines the master or other commanding officer thereof,
shall be fined not more than one thousand dollars, or im-
prisoned not more than five vears, or both. (R. S., s.
5359.)

U. S. v. Kelly, 11 Wheat., 417; The
Hibernia, 1 Sprague, 78, 12 Fed. Cas.,
112; U. S. v. Ashton, 2 Sumn., 13, 24 Fed.
Cas., 873; U. S. v. Barker, 5 Mason, 404,
24 Fed. Cas., 985; U. S. v. Bladen, Bet.
C. C, 213, 24 Fed. Cas., 1161: U. S. v.
Borden, 1 Sprague, 374, 24 Fed. Cas.,
1202; U. S. v. Cassedy, 2 Sumn., 582, 15
Fed. Cas., 321; U. S. v. Gardner, 5 Ma-
son, 402, 25 Fed. Cas., 1259; U. S. v.
Civings, 1 Sprague, 75, 25 Fed. Cas.,
1331; U. S. v. Haines, 5 Mason, 272, 26
Fed. Cas., 62; U. S. v. Hamilton, 1
Mason, 443, 26 Fed. Cas., 93; U. S. v.
Hemmer, 4 Mason, 105, 26 Fed. Cas.,
259; U. S. v. Henry, 4 Wash., 428, 26
Fed. Cas., 276; U. S. v. Keefe, 3 Mason,
475, 26 Fed. Cas., 685; U. S. v. Law-
rence, 1 Cranch, C. C, 94, 26 Fed. Cas.,
885; U. S. v. Lynch, 2 N. Y. Leg. Obs.,
51, 26 Fed. Cas., 1033; U. S. v. Mat-

thews, 2 Sumn., 470, 26 Fed. Cas., 1207;
U. S. v. Morrison, 1 Sumn., 448, 26 Fed.
Cas., 1351; U. S. v. Nye, 2 Curtis, 225,

27 Fed. Cas., 210; U. S. v. Roberts, 2 N.
Y. Leg. Obs., 99, 27 Fed. Cas., 822; U.
S. v. Rogers, 3 Sumn., 342, 27 Fed. Cas..
890; U. S. v. Savage, 5 Mason, 460, 27
Fed. Cas., 966; U. S. v. Seagrist, 4
Blatch., 420, 27 Fed. Cas., 1002; U. S.
v. Sharp, Pet. C. C, 118, 27 Fed. Cas..
1041; U. S. v. Smith, 1 Mason. 147, 27
Fed. Cas., 1166; U. S. v. Smith, 3 Wash.,
78, 27 Fed. Cas., 1246; U. S. v. Staly, 1
Wood & M., 338, 27 Fed. Cas., 1290; U.
S. v. Stevens, 4 Wash., 547, 27 Fed. Cas..
1335, U. S. v. Thompson, 1 Sumn., 168,

28 Fed. Cas., 102; U. S. v. Winn, 3
Sumn., 209, 28 Fed. Cas., 733; U. S. v.
Stone, 8 Fed. Rep., 232; U. S. v. Huff,
13 Fed. Rep., 630.

§ 293. Revolt and mutiny on shipboard. — Whoever,
being of the crew of a vessel of the United States, on the
high seas, or on any other waters within the admiralty
and maritime jurisdiction of the United States, unlaw-

Piracy and other Offenses upon the Seas. 883

fully and with force, or by fraud, or intimidation, usurps
the command of such vessel from the master or other
lawful officer in command thereof, or deprives hirn of au-
thority and command on board, or resists or prevents him
in the free and lawful exercise thereof, or transfers such
authority and command to another not lawfully entitled
thereto, is guilty of a revolt and mutiny, and shall be
fined not more than two thousand dollars and imprisoned
not more than ten years. (R. S., s. 5360.)

U. S. v. Borden Sprague, 374, 24 Fed. v. Haskell, 4 Wash., 402, 26 Fed. Cas.,

Cas., 1202; U. S. v. Forbes, Crabbe, S58, 207; U. S. v. Peterson, 1 Wood & M.,

25 Fed. Cas., 1141; U. S. v. C.ivings, 1 305, 27 Fed. Cas., 515.
Sprague, 75, 25 Fed. Cas., 1331; U. S.

§ 294. Seaman laying violent hands on his command-
er.— Whoever, being a seaman, lays violent hands upon
his commander, thereby to hinder and prevent his fight-
ing in defense of his vessel or the goods intrusted to him,
is a pirate, and shall be imprisoned for life. (R. S., s.
5369. 15 Jan., 1897, 29 Stat. L., 487, c. 29, s. 2; 2 Supp.,
538.)

U. S. v. Kessler, 1 Baldw., 15, 26 Fed.
Cas., 766.

§ 295. Abandonment of mariners in foreign ports. —
Whoever, being master or commander of a vessel of the
United States, while aboard, maliciously and without
justifiable cause forces any officer or mariner of such ves-
sel on shore, in order to leave him behind in any foreign
port or place, or refuses to bring home again all such offi-
cers and mariners of such vessel whom he carried out
with him, as are in a condition to return and willing to
return, when he is ready to proceed on his homeward voy-
age, shall be fined not more than five hundred dollars,
or imprisoned not more than six months, or both. (R,
S., s. 5363.)

Nieto v. Clark, 1 Cliff, 145, 18 Fed. Riddle, 4 Wash., 644, 27 Fed. Cas., 809;

Cas., 236; U. S. v. Coffin, 1 Sumn., 394, U. S. v. Ruggles, 5 Mason, 192, 27, Fed.

25 Fed. Cas., 485; U. S. v. Netcher, 1 Cas., 912; Chinise laborers, 13 Fed. Rep.,

Story, 307, 27 Fed. Cas., 89; U. S. v. 291.

§ 296. Conspiracy to cast away vessel. — Whoever, on
the high seas, or within the United States, wilfully and
corruptly conspires, combines, and confederates with any
other person, such other person being either within or
without the United States, to cast away or otherwise de-
stroy any vessel, with intent to injure any person that

884 Federal Criminal Law Procedure.

may have underwritten or may thereafter underwrite any
policy of insurance thereon or on goods on board there-
of, or with intent to injure any person that has lent or ad-
vanced, or may lend or advance, any money on such ves-
sel on bottomry or respondentia; or whoever, within the
United States, builds, or fits out, or aids in building or
fitting out, any vessel with intent that the same be cast
away or destroyed, with the intent hereinbefore men-
tioned, shall be fined not more than ten thousand dollars
and imprisoned not more than ten years. (R. S., s. 5364.)

U. S. v. Cole, 5 McLean, 513, 25 Fed.
Cas., 493; U. S. v. Hand, 6 McLean, 274,
26 Fed. Cas., 102.

§ 297. Plundering vessel in distress, etc. — Whoever
plunders, steals, or destroys any money, goods, merchan-
dise, or other effects, from or belonging to any vessel in
distress, or wrecked, lost, stranded, or cast away, upon
the sea, or upon any reef, shoal, bank or rocks of the sea,
or in any other place within the admiralty and maritime
jurisdiction of the United States, shall be fined not more
than five thousand dollars and imprisoned not more than
ten years; and whoever willfully obstructs the escape of
any person endeavoring to save his life from such ves-
sel, or the wreck thereof; or whoever holds out or shows
any false light, or extinguishes any true light, with in-
tent to bring any vessel sailing upon the sea into danger,
or distress, or shipwreck, shall be imprisoned not less
than ten years and may be imprisoned for life. (R. S.,
s. 5358.)

U. S. v. Coombs, 12 Pet., 72; U. S. 640, 27 Fed. Cas., 1132; U. S. v. Lauche,

v. Kessler, Baldw., 15, 26 Fed. Cas., 766; 7 Fed. Rep., 715; U. S. v. Stone, 8 Fed.

U. S. v. Pitman. 1 Sprague, 196, 27 Fed. Rep., 232.
Cas., 540; U. S. v. Smiley, 6 Sawyer,

§ 298. Attacking vessel with intent to plunder. —
Whoever, upon the high seas or on any other waters
within the admiralty and maritime jurisdiction of the
United States, by surprise or by open force, maliciously
attacks or sets upon any vessel belonging to another, with
an intent unlawfully to plunder the same, or to despoil
any owner thereof of any moneys, goods, or merchandise
laden on board thereof, shall be fined not more than five
thousand dollars and imprisoned not more than ten vears.
(R. S., s. 5361.)

U. S. v. Stone, 8 Fed. Rep., 232.

Piracy and other Offenses upon the Seas. 885

§ 299. Breaking and entering vessel, etc. — Whoever,
upon the high seas or on any other waters within the ad-
miralty and maritime jurisdiction of the United States,
and out of the jurisdiction of any particular State, breaks
or enters any vessel, with intent to commit any felony, or
maliciously cuts, spoils or destroys any cordage, cable,
buoys, buoy rope, head fast, or other fast, fixed to the
anchor or moorings belonging to any vessel, shall be fined
not more than one thousand dollars and imprisoned not
more than five years. (R. S., s. 5362.)

§ 300. Owner destroying vessel at sea. — "Whoever,
upon the high seas or on any other waters within the ad-
miralty an maritime jurisdiction of the United States,
willfully and corruptly casts away or otherwise destroys
any vessel, of which he is owner, in whole or in part, with
intent to prejudice any person that may underwrite any
policy of insurance thereon, or any merchant that may
have goods threon, or any other owner of such vessel
shall be imprisoned for life or for any term of years. (R.
S., s. 5365. 6 Aug., 1894, 28 Stat. L.,*233, c. 227; 2 Supp.,
225.)

U. S. v. Johns, 4 Dall, 412, 1 Wash.. 26 Fed. Cas.. 567; U. S. v. Vanranst,
363; U. S. v. Amedy, 11 Wheat., 329; 3 Wash., 146; U. S. v. Wilson, 3 Blatch.,
U. S. v. Jacobson, 1 Brun. Col. Cas., 410, 435.

§ 301. Other persons destroying or attempting to de-
stroy vessel at sea. — Whoever, not being an owner, upon
the high seas or on any other waters within the admiral-
ty and maritime jurisdiction of the United States, will-
fully and corruptly casts away or otherwise destroys any
vessel of the United States to which he belongs, or, will-
fully, with intent to destroy the same, sets fire to any
such vessel, or otherwise, attempts the destruction there-
of, shall be imprisoned not more than ten vears. (R. S.,
ss. 5366, 5367. 6 Aug., 1894, 28 Stat. L., 233, c. 227, s. 2;
2 Supp., 225.)

U. S. v. Vanranst, 3 Wash., 146, 28 435. 28 Fed. Cas.. 718; U. S. v. McAvjy,
Fed. Cas., 360; U. S. v. Wilson. 3 Blatch.. 4 Blatch., 418, 26 Fed. Cas., 1044.

§ 302. Robbery on shore by crew of piratical vessel. —
Whoever, being, engaged in any piratical cruise, or en-
terprise, or being of the crew of any piratical vessel, lan^
from such vessel, and on shore commits robbery, is a pi-
rate, and shall be imprisoned for life. (R. S., s. 5371. If
Jan., 1897, 29 Stat. L., 487, c. 29, s. 2; 2 Supp., 538.)

886 Federal Criminal Law Procedure.

§ 303. Arming vessel to cruise against citizens of the
United States. — Whoever, being a citizen of the United
States, without the limits thereof, fits out and arms, or
attempts to fit out and arm, or procures to be fitted out
and armed, or knowingly aids or is concerned in furnish-
ing, fitting out, or arming, any private vessel of war or
privateer, with intent that such vessel shall be employed
to cruise or commit hostilities upon the citizens of the
United States, or their property, or whoever takes com-
mand of or enters on board of any such vessel, for such
intent, or who purchases any interest in any such vessel
with a view to share in the profits thereof, shall be fined
not more than ten thousand dollars and imprisoned no4
more than ten years. The trial for such offense, if com-
mitted without the limits of the United States, shall be
in the district in which the offender shali be apprehended
or first brought. (R. S., s. 5284.)

U. S. v. Howard, 3 Wash., 340, 26 Fed.
Cas., 390.

§ 304. Piracy under color of a foreign commission. —
Whoever, being a citizen of the United States, commits
any murder or robbery, or any act of hostility against the
United States, or against any citizen thereof, on the high
seas, under color of any commission from any foreign
prince, or state, or on pretense of authority from any per-
son, is, notwithstanding the pretense of such authority,
a pirate, and shall be imprisoned for life. (R. S., s. 5373.
15 Jan., 1897, 29 Stat. L., 487, c. 29, s. 2; 2 Supp., 538.)

U. S. v. Palmer, 3 Wheat., 610; U. S. 489, 26 Fed. Cas., 440; U. S. v. Terrel,
v. Baker, 5 Blatch., 6, 24 Fed. Cas., 962; Hernpst., 413, 1 Fed. Cas., 999.
U. S. v. Hutchings, 1 Brun. Col. Cas.,

§ 305. Piracy by subjects or citizens of a foreign state.
— Whoever, being a citizen or subject of any foreign
state, is found and taken on the sea making war upon the
United States, or cruising against the vessels and prop-
erty thereof, or of the citizens of the same, contrary to
the provisions of any treaty existing between the United
States and the state of which the offender is a citizen or
subject, when by such treaty such acts are declared to be
piracy, is guilty of piracv, and shall be imprisoned for
life. *(R. S., s. 5374. 15 Jan., 1897, 29 Stat. L., 487, c. 29,
s. 2; 2 Supp., 538.)

Piracy and other Offenses upon the Seas. 887

§ 306. Running away with or yielding up vessel or
cargo. — Whoever, being a captain or other officer or
mariner of a vessel upon the high seas or on any other
waters within the admiralty or maritime jurisdiction of
the United States, piratically or feloniously runs away
with such vessel, or with any goods or merchandise there-
of, to the value of fifty dollars, or who yields up such ves-
sel voluntarily to any pirate, shall be fined not more than
ten thousand dollars, or imprisoned not more than ten
years, or both. R. S., s. 5383.)

U. S. v. Haskell, 4 Wash., 402, 26 Fed. 26 Fed. Cas., 766; U. S. v. Tully, 1
Cas., 207; U. S. v. Kessler, Baldw., 15. Call., 247, 28 Fed. Cas., 226.

§ 307. Confederating, etc., with pirates. — Whoever
attempts or endeavors to corrupt any commander, mas-
ter, officer, or mariner to yield up or to run away with
any vessel, or with any goods, wares, or merchandise, or
to turn pirate, or to go over to or confederate with pi-
rates, or in any wise to trade with any pirate, knowing
him to be such, or furnishes such pirate with any am-
munition, stores, or provisions of any kind, or fits out any
vessel knowingly and, with a design to trade with, sup-
ply, or correspond with any pirate or robber upon the
seas; or whoever consults, combines, confederates, or cor-
responds with any pirate or robber upon the seas, know-
ing him to be guilty of any piracy or robbery; or who-
ever, being a seaman, confines the master of any vessel,
shall be fined not more than one thousand dollars and im-
prisoned not more than three years. (R. S., s. 5384.)

U. S. v. Howard, 3 Wash., 340, 26
Fed. Cas., 390.

§ 308. Sale of arms and intoxicants forbidden in the
Pacific islands. — Whoever, being subject to the author-
ity of the United States, shall give, sell, or otherwise sup-
ply any arms, ammunition, explosive substance, intoxi-
cating liquor, or opium to any aboriginal native of any
of the Pacific islands lying within the twentieth parallel
of north latitude and the fortieth parallel of south lat-
tude, and the one hundred and twentieth meridian of
longitude west and one hundred and twentieth meridian of
longitude east of Greenwich, not being in the possession
or under the protection of any civilized power, shall be
fined not more than fifty dollars, or imprisoned not mo~*e

888 Federal Criminal Law Procedure.

than three months, or both. In addition to such punish-
ment, all articles of a similar nature to those in respect
to which an offense has been committed, found in the
possession of the offender, may be declared forfeited. If
it shall appear to the court that such opium, wine, or
spirits have been given bona fide for medical purposes,
it shall be lawful for the court to dismiss the charge. (14
Feb., 1902, 32 Stat. L., 33 c. 18, ss. 1, 2.)

§ 309. Offenses under preceding section deemed or
high seas. — All offenses against the provisions of the
section last preceding, committed on any of said island s
or on the waters, rocks, or keys adjacent thereto, shall be
deemed committed on the high seas on board a merchant
ship or vessel belonging to the United States, and the
courts of the United States shall have jurisdiction ac-
cordingly. (14 Feb., 1902, 32 Stat. L., 33, c. 18, s. 3.)

§ 310. "Vessels of the United States" defined.— The
words "vessel of the United States," wherever they oc-
cur in this chapter, shall be construed to mean a vessel
belonging in whole or in part to the United States, or any
citizen thereof, or any corporation created by or under
the laws of the United States, or of any State, Territory,
or District thereof.

CHAPTER THIRTEEN.

CERTAIN OFFENSES IN THE TERRITORIES.

§ 311. Places within which sections of this chapter shall apply.

312. Circulation of obscene literature; promoting abortion.

313. Polygamy.

314. Unlawful cohabitation.

315. Joinder of counts.

316. Adultery.

317. Incest.

318. Fornication.

319. Certificates of marriage; penalty for failure to record.

320. Prize fights, bull fights, etc.

321. Definition of "pugilistic encounter."

322. Train robberies in Territories, etc.

§ 311. Places within which sections of this chapter
shall apply. — Except as otherwise expressly provided,
the offenses defined in this chapter shall be punished as
hereinafter provided, when committed within any Ter-
ritory or District, or within or upon any place within the
exclusive jurisdiction of the United States,

§ 312. Circulation of obscene literature; promoting
abortion; how punished. — Whoever shall sell, lend, give
away, or in any manner exhibit, or offer to sell, lend, give
away, or in any manner exhibit, or shall otherwise pub-
lish or offer to publish in any manner, or shall have in his
possession for any such purpose, any obscene book,
pamphlet, paper, writing, advertisement, circular, print,
picture drawing, or other representation, figure, or image
on or of paper or other material, or any cast, instrument,
or other article of an immoral nature, or any drug or medi-
cine, or any article whatever, for the prevention of con-
ception, or for causing unlawful abortion, or shall adver-
tise the same for sale, or shall write or print, or cause to
be written or printed, any card, circular, book, pamphlet,
advertisement, or notice of any kind, stating when,
where, how, or of whom, or by what means, any of the
articles above mentioned can be purchased or obtained,
or shall manufacture, draw, or print, or in any wise make
any of such articles, shall be fined not more than two

(889)

890 Federal Criminal Law Procedure.

thousand dollars, or imprisoned not more than five years,
or both. (R. S., s. 5389.)

I". S. v. Williams, 3 Fed. Rep., 484.

§ 313. Polygamy. — Every person who has a husband
or wife living, who marries another, whether married or
single, and any man who simultaneously, or on the same
day, marries more than one woman, is guilty of poly-
gamy, and shall be fined not more than five hundred dol-
lars and imprisoned not more than five years. But this
section shall not extend to any person by reason of any
former marriage whose husband or wife by such mar-
riage shall have been absent for five successive years, and
is not known to such person to be living, and is believed
by such person to be dead, nor to any person by reason of
any former marriage which shall have been dissolved by a
valid decree of a competent court, nor to any person by
reason of any former marriage which shall have been pro-
nounced void by a valid decree of a competent court, on
the ground of nullity of the marriage contract. (R. S.,
s. 5352. 22 Mar., 1882, 22 Stat, L., 30, c. 47, s. 1; 1 Supp.,
331.)

Cannon v. U. S., 116 U. S., SS; Ex
parte Snow, 120 U. S., 274; U. S. v.
Higginson, 46 Fed. Rep., 750.

§ 314. Unlawful cohabitation. — If any male person
cohabits with more than one woman, he shall be fined
not more than three hundred dollars, or imprisoned not
more than six months, or both. (22 Mar., 1882, 22 Stat.
L., 31, c. 47, s. 3; 1 Supp., 332.)

Cannon v. U. S.. 116 U. S., 55; Ex
parte Snow, 120 U. S., 274; U. S. v.
Higginson, 46 Fed. Rep., 750.

§ 315. Joinder of counts. — Counts for any or all of
the offenses named in the two sections last preceding may
be joined in the same information or indictment. (22
Mar., 1882, 22 Stat. L., 31, c. 47, s. 4; 1 Supp., 331.)

§ 316. Adultery. — Whoever shall commit adultery
shall be imprisoned not more than three years; and when
the act is committed between a married woman and a man
who is unmarried, both parties to such act shall be
deemed guilty of adultery; and when such act is commit-
ted between a married man and a woman who is unmar-
ried, tli<' mail shall be deemed guilty of adultery. (3 Mar.,

Certain Offenses in the Territories. 891

1887, 24 Stat. L., 635, c. 397, s. 3; 1 Supp., 568.)

§ 317. Incest. — Whoever being related to another
person within and not including the fourth degree of con-
sanguinity computed according to the rules of the civil
law shall marry or cohabit with, or have sexual inter-
course with such other so related person, knowing her or
him to be within said degree of relationship, shall be
deemed guilty of incest, and shall be imprisoned not more
than fifteen years. (3 Mar., 1887, 24 Stat. L., 635, c. 397,
s. 4; 1 Supp., 568.)

Re Nelson, 69 Fed. Rep., 712.

§ 318. Fornification. — If any unmarried man or wo-
man commits fornification each shall be fined not more
than one hundred dollars, or imprisoned not more than
six months. (3 Mar., 1887, 24 Stat. L., 636, c. 397, s. 5; 1
Supp., 568.)

§ 319. Certificates of marriage; penalty for failure to
record. — Every ceremony of marriage, or in the nature
of a marriage ceremony of any kind, whether either or
both or more of the parties to such ceremony be lawfully
competent to be the subjects of such marriage or cere-
mony or not, shall be certified by a certificate stating the
fact and nature of such ceremony, the full name of each
of the parties concerned, and the full name of every offi-
cer, priest, and person, by whatever style or designation
called or known, in any way taking part in the perform-
ance of such ceremony, which certificate shall be drawn up
and signed by the parties to such ceremony and by every
officer, priest, and person taking part in the performance
of such ceremony, and shall be by the officer, priest, or
other person solemnizing such marriage or ceremony filed
in the office of the probate court, or, if there be none, in
the office of the court having probate powers in the coun-
ty or district in which such ceremony shall take place,
for record, and shall be immediately recorded, and be at
all times subject to the inspection as other public records.
Such certificate or the record thereof, or a duly certified
copy of such record, shall be prima facie evidence of the
facts required by this section to be stated therein in any
proceeding, civil or criminal, in which the matter shall
be drawn in question. But nothing in this section shall

892 Federal Criminal Law Procedure.

be held to prevent the proof of marriages, whether law-
ful or unlawful, by any evidence otherwise legally ad-
missible for that purpose. Whoever shall willfully vio-
late any provision of this section shall be fined not more
than one thousand dollars, or imprisoned not more than
two years, or both. The provisions of this section shall
apply only within the Territories of the United States.
(3 Mar., 1887, 24 Stat. L., 636, c. 397, ss. 9, 10; 1 Supp.,
568.)

§ 320. Prize fights, bull fights, etc. — Whoever shall
voluntarily engage in a pugilistic encounter between man
and man or a fight between a man and a bull or any other
or animal for money or for other thing of value,
or for any championship, or upon the result of which
any money or anything of value is bet or wagered,
or to see which any admission fee is directly or in-
directly charged, shall be imprisoned not more than five
years. The provisions of this section shall apply only
within the Territories of the United States and the Dis-
trict of Columbia. (7 Feb., 1896, 29 Stat. L., 5, c. 12; 2
Supp., 446.)

§ 321. "Pugilistic encounter" defined. — By the term
"pugilistic encounter," as used in the section last pre-
ceding, is meant any voluntary fight by blows by means
of fists or otherwise, whether with or without gloves, be-
tween two or more men, for money or for a prize of any
character, or for any other thing of value, or for any
championship, or upon the result of which any money
or anything of value is bet or wagered, or to see which
anv admission fee is directly or indirectly charged. (7
Feb., 1896, 29 Stat. L., 5,c. 12; 2 Supp., 446.)

§ 322. Train robberies in Territories, etc. — Whoever
shall willfully and maliciously trespass upon or enter up-
on any railroad train, railroad car, or railroad locomo-
tive, with the intent to commit murder, or robbery, shall
be fined not more than five thousand dollars, or impris-
oned not more than twenty years, or both. Whoever
shall willfully and maliciously trespass upon or enter up-
on any railroad train, railroad car, or railroad locomo-
tive, with intent to commit any unlawful violence upon
or against any passenger on said train, or car, or upon

Certain Offenses in the Territories. 893

or against any engineer, conductor, fireman, brakeman,
or any officer or employee connected with said locomo-
tive, train, or car, or upon or against any express mes-
senger or mail agent on said train or in any car thereof,
or to commit any crime or offense against any person or
property thereon, shall be fined not more than one thou-
sand dollars, or imprisoned not more than one year, or
both. Whoever shall counsel, aid, abet, or assist in the
perpetration of any of the offenses set forth in this sec-
tion shall be deemed to be a principal therein. Upon the
trial of any person charged with any offense set forth in
this section, it shall not be necessary to set forth or prove
the particular person against whom it was intended to
commit the offense, or that it was intended to commit
such offense against any particular person. (1 July,
1902, 32 Stat. L., 727, c. 1376.)

CHAPTER FOURTEEN.

GENERAL AND SPECIAL PROVISIONS.

§ 323. Punishment of death by hanging.

324. No conviction to work corruption of blood or forfeiture of

estate.

325. Whipping and the pillory abolished.

326. Jurisdiction of State courts.

327. Pardoning power.

328. Indians committing certain crimes; how punished.

329. Crimes committed on Indian reservations in South Dakota.

330. Qualified verdicts in certain cases.

331. Body of executed offender may be delivered to surgeon for

dissection.

332. Who are principals.

333. Punishment of accessories.

334. Accessories to robbery or piracy.

335. Felonies and misdemeanors.

336. Murder and manslaughter; place where crime deemed to have

been committed.

337. Construction of certain words.

338. Ommission of words "hard labor" not to deprive court of

power to impose.

339. Arrangement and classification of sections.

340. Jurisdiction of circuit and district courts.

§ 323. Punishment of death by hanging. — The man-
ner of inflicting the punishment of death shall be by
hanging. (R. S., s. 5325.)

§ 324. No conviction to work corruption of blood or
forfeiture of estate. — No conviction or judgment shall
work corruption of blood of anv forfeiture of estate. (R.
S., s. 5326.)

U. S. v. Coppersmith, 4 Fed. Rep., 198.

§ 325. Whipping and the pillory abolished. — The
punishment of whipping and of standing in the pillory
shall not be inflicted. (R. S., s. 5327.)

§ 326. Jurisdiction of State Courts. — Nothing in this
Title shall be held to take away or impair the jurisdic-
tion of the courts of the several States under the laws
thereof. (R. S., s. 5328.)

Cross v. North Carolina, 132 U. S.. 657; Re Miller 42 Fed. Rep., 307; U. S.

131; Re I.oncv, 134 U. S., 372, 38 Fed. v. Gibson, 47 Fed. Rep.. 833: Ex parte

Rep., 101; Fitzgerald v. Green, 134 U. S., Geisler, 50 Fed. Rep., 411; Re Welch. 57

377; Pettibone v. U. S.. 148 lT. S., 197; Fed. Hep., 576; Re Waite, 81 Fed. Rep..

Re Thomas, 173 U. S., 276, 87 Fed. Rep., 359; Ex parte Ballinger, 88 Fed. Rep., 71.
453; Ex parte Houghton, 7 Fed. Rep..

(894)

General and Special Provisions. 895

§ 327. Pardoning power. — Whenever, by the judg-
ment of any court or judicial officer of the United States,
in any criminal proceedings, any person is sentenced to
two kinds of punishment, the one pecuniary and the other
corporal, the President shall have full discretionary pow-
er to pardon or remit, in whole or in part, either one of
the two kinds, without, in any manner, impairing the
legal validity of the other kind, or of any portion of either
kind, not pardoned or remitted. (R. S., s. 5330.)

Knote v. U. S., 95 U. S., 149: 8 A. Op., 1; 19 A. G. Op., 377, 476; 20 A.
G. Op., 281; 9 A. G. Op., 478; 11 A. G. G. Op., 330, 668.
Op^ 35; 14 A. G. Op., 124; 16 A. G.

§ 328. Indians committing certain crimes; how pun-
ished.— All Indians committing against the person or
property of another Indian or other person any of the fol-
lowing crimes, namely — murder, manslaughter, rape, as-
sault with intent to kill, assault with a dangerous wea-
pon, arson, burglary, and larceny, within any Territory
of the United States, and either within or without an In-
dian reservation, shall be subject therefor to the laws of
such Territory relating to said crimes, and shall be tried
therefor in the same courts and in the same manner and
shall be subject to the same penalties as are all other per-
sons charged with the commission of said crimes, respect-
ively; and the said courts are hereby given jurisdiction
in all such cases. And all such Indians committing any
of the above named crimes against the person or prop-
erty of another Indian or other person within the bound-
aries of any State of the United States, and within the
limits of any Indian reservation, shall be subject to the
same laws, tried in the same courts and in the same man-
ner, and be subject to the same penalties as are all other
persons committing any of the above crimes within the
exclusive jurisdiction of the United States: Provided,
That any Indian who shall commit the offense of rape
upon any female Indian within the limits of any Indian
reservation shall be imprisoned at the discretion of the
court. (3 Mar., 1885, 23 Stat. L., 385, c. 341; 1 Supp., 482.
15 Jan., 1897, 29 Stat. L., 487, c. 29, s. 5; 2 Supp., 538.)

Toy Toy v. Hopkins, 212 U. S., 542;
U. S. v. Celestine, 215 U. S., 278; U. S.
v. Kiya, 126 Fed. Rep., 879.

896 Fedekal Criminal Law Procedure.

§ 329. Crimes committed on Indian reservations in
South Dakota. — The circuit and district courts of the
United States for the district of South Dakota shall have
jurisdiction to hear, try, and determine all actions and
proceedings in which any person shall be charged with
the crime of murder, manslaughter, rape, assault with
intent to kill, assault with a dangerous weapon, arson,
burglary, or larceny, committed within the limits of any
Indian reservation in the State of South Dakota. Any
person convicted of murder, manslaughter, rape, arson,
or burglary, committed within the limits of any such res-
ervation, shall be subject to the same punishment as is
imposed upon persons committing said crimes within the
exclusive jurisdiction of the United States: Provided,
That any Indian who shall commit the crime of rape up-
on any female Indian within any such reservation shall
be imprisoned at the discretion of the court. Any per-
son convicted of the crime of assault with intent to kill,
assault with a dangerous weapon, or larceny, committed
within the limits of any such reservation, shall be subject
to the same punishment as is provided in cases of other
persons convicted of any of said crimes under the laws
of the State of South Dakota. This section is passed in
pursuance of the cession of jurisdiction contained in chap-
ter one hundred and six, Laws of South Dakota, nineteen
hundred and one. (2 Feb., 1903, 32 Stat. L., 793, c. 351.
Laws of South Dakota, 1901, c. 106.)

§ 330. Qualified verdicts in certain cases. — In all cases
where the accused is found guilty of the crime of murder
in the first degree, or rape, the jury may qualify their
verdict by adding thereto "without capital punishment;"
and whenever the jury shall return a verdict qualified as
aforesaid, the person convicted shall be sentenced to im-
prisonment for life. (15 Jan., 1897, 29 Stat. L., 487, c. 29,
s. 1; 2 Supp., 538.)

§ 331. Body of executed offender may be delivered to
surgeon for dissection. — The court before which any per-
son is convicted of murder in the first degree, or rape,
may, in its discretion, add to the judgment of death, that
the body of the offender be delivered to a surgeon for dis-
section; and the marshal who executes such judgment

General and Special Provisions. 897

shall deliver the body, after execution, to such surgeon
as the court may direct; and such surgeon, or some per-
son appointed by him, shall receive and take away the
body at the time of execution. (R. S., s. 5340.)

§ 332. Who are principals. — Whoever directly com-
mits any act constituting an offense denned in any law
of the United States, or aids, abets, counsels, commands,
induces, or procures its commission, is a principal. (R.
S., ss. 5323, 5427. Dolan v. U. S., 133 Fed. Rep., 440.)

§ 333. Punishment of accessories. — Whoever, except
as otherwise expressly provided by law, being an acces-
sory after the fact to the commission of any offense de-
fined in any law of the United States, shall be imprisoned
not exceeding one-half the longest term of imprisonment,
or fined not exceeding one-half the largest fine prescribed
for the punishment of the principal, or both, if the prin-
cipal is punishable by both fine and imprisonment; or if
the principal is punishable by death, then an accessory
shall be imprisoned not more than ten years. (R. S., ss.
5533, 5534, 5535.)

§ 334. Accessories to robbery or piracy. — Whoever,
without lawful authority, receives or takes into custody
any vessel, goods, or other property, feloniously taken by
any robber or pirate against the laws of the United
States, knowing the same to have been feloniously taken,
and whoever, knowing that such pirate or robber has
done or committed any such piracy or robbery, on the
land or at sea, receives, entertains, or conceals any such
pirate or robber, is an accessory after the fact to such
robbery or piracy, and shall be imprisoned not more than
ten years. (R. S., s. 5324.)

Hempst., 413, 1 Fed. Cas., 999.

§ 335. Felonies and misdemeanors.— All offenses
which may be punished by death, or imprisonment for a
term exceeding one year, shall be deemed felonies. All
other offenses shall be deemed misdemeanors.

§ 336. Murder and manslaughter; place where crime
deemed to have been committed. — In all cases of mur-
der or manslaughter, the crime shall be deemed to have
been committed at the place where the injury was in-

898 Federal Criminal Law Procedure.

flicted, or the poison administered, or other means em-
ployed which caused the death, without regard to the
place where the death occurs. (R. S., ss. 5339, 5341.)

Ball v. U. S., 140 U. S., 136; U. S. Hewecker, 79 Fed. Rep., 59; U. S. v.
v. McGill, 26 Fed. Cas., 1086; U. S. v. Guiteau, 1 Mackey (D. C), 498.

- § 337. Construction of words. — Words used in this
title in the present tense include the future as well as
the present; words used in the masculine gender include
the feminine and neuter; the singular number includes
the plural, and the plural the singular; the word "per-
son" and the word "whoever" include a corporation as
well as a natural person; writing includes printing and
typewriting, and signature or subscription includes a
mark when the person making the same intended it as
such. The words "this Title," wherever they occur here-
in, shall be construed to mean this act.

§ 338. Omission of words "hard labor" not to de-
prive court of power to impose. — The omission of the
words "hard labor" from the provisions prescribing the
punishment in the various sections of this act, shall not
be construed as depriving the court of the power to im-
pose hard labor as a part of the punishment, in any case
where such power now exists.

§ 339. Arrangement and classification of sections. —
The arrangement and classification of the several sec-
tions of this title have been made for the purpose of a
more convenient and orderly arrangement of the same,
and therefore no inference or presumption of a legisla-
tive construction is to be drawn by reason of the chap-
ters under which any particular section is placed.

§ 340. Jurisdiction of circuit and district courts. —
The crimes and offenses defined in this title shall be
cognizable in the circuit and district courts of the United
Slates, as prescribed in sections five hundred and sixty-
three and six hundred and twenty-nine of the Revised
Statutes.

CHAPTER FIFTEEN.

REPEALING PROVISIONS.

§ 341. Sections, acts, and parts of acts repealed.

342. Accrued rights, etc., not affected.

343. Prosecutions and punishments.

344. Acts of limitation. •

345. Date this act shall be effective.

§ 341. Sections, acts, and parts of acts repealed. —
The following sections of the Revised Statutes and Acts
and parts of Acts are hereby repealed:

Sections four hundred and twelve, fifteen hundred and
fifty-three, sixteen hundred and sixty-eight; sections
seventeen hundred and eighty to seventeen hundred and
eighty three, both inclusive; sections seventeen hundred
and eighty-five, seventeen hundred and eighty-seven,
seventeen hundred and eighty-eight, seventeen hundred
and eighty-nine, twenty-three hundred and seventy-three,
twenty-four hundred and twelve, thirty-five hundred and
eighty-three, thirty-seven hundred and eight, thirty-
seven hundred and thirty-nine, thirty-seven hundred and
forty, thirty-seven hundred and forty-two, thirty-eight
hundred and thirty-two, thirty-eight hundred and fifty-
one, thirty-eight hundred and sixty-nine, thirty-eight
hundred and eighty-seven; sections thirty-eight hundred
and ninety to thirty-eight hundred and ninety-four, both
inclusive; section thirty-eight hundred and ninety-nine;
sections thirty-nine hundred and twenty-two to thirty-
nine hundred and twenty-five, both inclusive; sections
thirty-nine hundred and forty-seven, thirty-nine hundred
and fifty-four, thirty-nine hundred and seventy-seven,
thirty-nine hundred and seventy-nine; sections thirty-
nine hundred and eighty-one to thirty-nine hundred and
eighty-six, both inclusive; sections thirty-nine hundred
and eighty-eight, thirty-nine hundred and ninety-two,
thirty-nine hundred and ninety-five, thirty-nine hundred
and ninety-six, four thousand and thirteen, four thousand
and sixteen, four thousand and thirty, four thousand and
fifty-three, fifty-one hundred and eighty-eight, fifty-one

(899)

900 Federal Criminal Law Procedure.

hundred and eighty-nine; sections fifty-two hundred and
eighty-one to fifty-two hundred and ninety-one, both in-
elusive; sections fifty-three hundred and twenty-three to
fifty-three hundred and ninety-five, both inclusive; sec-
tions fifty-three hundred and ninety-eight to fifty-four
hundred and ten, both inclusive; sections fifty-four hun-
dred and thirteen to fifty-four hundred and eighty-four,
both inclusive; sections fifty-four hundred and eighty-
seven to fifty-five hundred and ten, both inclusive; sec-
tions fifty-five hundred and sixteen, fifty-five hundred
and eighteen, fifty-five hundred and nineteen; sections
fifty-five hundred and twenty-four to fifty-five hundred
and thirty-five, both inclusive; sections fifty-five hundred
and fifty-one to fifty-five hundred and sixty-seven, both
inclusive, of the Revised Statutes:

That part of section thirty-eight hundred and twenty-
nine of the Revised Statutes which reads as follows:
"And every person who, without authority from the
Postmaster-General, sets up or professes to keep any
office or place of business bearing the sign, name, or title
of post-office, shall, for every such offense, be liable to
a penalty of not more than five hundred dollars;"

That part of section thirty-eight hundred and sixty-
seven of the Revised Statutes which reads as follows:
"And any person not connected with the letter-carrier
branch of the postal service who shall wear the uniform
which may be prescribed shall, for every such offense, be
punishable by a fine of not more than one hundred dol-
lars, or by imprisonment for not more than six months,
or both ; ' '

That part of section four thousand and forty-six of
the Revised Statutes which reads as follows: "Every
post-master, assistant, clerk, or other person employed in
or connected with the business or operations of any
money-order office who converts to his own use, in any
way whatever, or loans, or deposits in any bank, except
as authorized by this title, or exchanges for other funds,
any portion of the public money-order funds, shall be
deemed guilty of embezzlement; and any such person,
as well as every other person advising or participating
therein, shall, for every such offense, be imprisoned for not

Repealing Pkovisions. 901

less than six months nor more than ten years, and be
fined in a sum equal to the amount embezzled; and any
failure to pay over or produce any money-order funds
intrusted to such person shall be taken to be prima facie
evidence of embezzlement; and upon the trial of any in-
dictment against any person for such embezzlement, it
shall be prima facie evidence of a balance against him
to produce a transcript from the money-order account
books of the Sixth Auditor. But nothing herein contain-
ed shall be construed to prohibit any postmaster de-
positing, under the direction of the Postmaster-General,
in a national bank designated by the Secretary of the
Treasury for that purpose, to his own credit as post-
master, any money order or other funds in his charge,
nor prevent his negotiating drafts or other evidences of
debt through such bank, or through United States dis-
bursing officers, or otherwise, when instructed or re-
quired to do so by the Postmaster-General, for the pur-
pose of remitting surplus money-order funds from one
postoffice to another, to be used in payment of money
orders. ' '

"An Act to protect lines of telegraph constructed or
used by the United States for malicious injury and ob-
struction," approved June twenty-third, eighteen hun-
dred and seventy-four;

"An Act to protect persons of foreign birth against
forcible constraint or involuntary servitude," approved
June twenty-third, eighteen hundred and seventy-four;

That part of "An Act making appropriations for the
service of the Post-Office Department for the fiscal year
ending June thirtieth, eighteen hundred and seventy-five
and for other purposes," approved June twenty-third,
eighteen hundred and seventy-four, which reads as fol-
lows: "That any postmaster who shall affix his signature
to the approval of any bond of a bidder or to the cer-
tificate of sufficiency of sureties in any contract before the
said bond or contract is signed by the bidder or con-
tractor and his sureties, or shall knowingly, or without
the exercise of due diligence approve any bond of a bid-
der with insufficient sureties, or shall knowingly make
any false or fraudulent certificate, shall be forthwith dis-

902 Federal Criminal Law Procedure.

missed from office and be thereafter disqualified from
holding the office of postmaster, and shall also be deemed
guilty of a misdemeanor, and on conviction thereof be
punished by a fine not exceeding five thousand dollars,
or by imprisonment not exceeding one year, or both;"

Sections one, two, and three of "An Act to protect
ornamental and other trees on Government reservations
and on lands purchased by the United States, and for
other purposes," approved March third eighteen hun-
dred and seventy-five;

"An Act to punish certain larcenies and the receivers
of stolen goods," approved March third, eighteen hun-
dred and seventy-five;

"An Act to amend section fifty-four hundred and
fifty-seven of the Eevised Statutes of the United States,
relating to counterfeiting," approved January sixteenth,
eighteen hunderd and seventy-seven;

That part of section five of "An act establishing post-
roads, and for other purposes," approved March third,
eighteen hundred and seventy-seven, which reads as fol-
lows: "And if any person shall make use of any such
official envelope to avoid the payment of postage on his
private letter, package, or other matter in the mail, the
person so offending shall be deemed guilty of a misde-
meanor and subject to a fine of three hundred dollars,
to be prosecuted in any court of competent jurisdiction ; ' '

That part of section one of "An Act making appropria-
tions for the service of the Post-Office Department for the
year ending June thirtieth, eighteen hundred and seventy-
nine, and for other purposes," approved June seven-
teenth, eighteen hundred and seventy-eight, which reads
as follows: "And any postmaster who shall make a
false return to the auditor, for the purpose of fraudulently
increasing his compensation under the provisions of this
or any other Act, shall be deemed guilty of a misdemean-
or, and, on conviction thereof, shall be fined in a sum
not less than fifty nor more than five hundred dollars,
or imprisoned for a term not exceeding one year, or
punished by both such fine and imprisonment, in the dis-
cretion of the court; and no postmaster of any class,
or other person connected with the postal service, in-

Repealing Provisions. 903

trusted with the sale or custody of postage stamps, stamp-
ed envelopes, or postal cards, shall use or dispose of
them in the payment of debts or in the purchase of
merchandise or other salable articles, or pledge or hypoth-
ecate the same, or sell or dispose of them except for
cash, or sell or dispose of postage stamps or postal cards
for any larger or less sum than the values indicated on
their faces, or sell or dispose of stamped envelopes for a
larger or less sum than is charged therefor by the Post-
Office Department for like quantities, or sell or dispose
of postage stamps, stamped envelopes, or postal cards
otherwise than as provided by law and the regulations
of the Post-Office Department; and any postmaster or
other person connected with the postal service who shall
violate any of these provisions shall be deemed guilty
of a misdemeanor, and, on conviction thereof, shall be
fined in any sum not less than fifty nor more than five
hundred dollars, or imprisoned for a term not exceeding
one year;"

''An Act to amend section fifty-four hundred and
ninety-seven of the Revised Statutes, relating to em-
bezzlement by officers of the United States," approved
February third, eighteen hundred and seventy-nine;

That part of section one of "An Act making appropria-
tions for the service of the Post-Office Department for
the fiscal year ending June thirtieth, eighteen hundred
and eighty, and for other purposes," approved March
third, eighteen hundred and seventy-nine, which reads as
follows: "That nothing contained in section thirty-nine
hundred and eighty-two of the Revised Statutes shall
be construed as prohibiting any person from receiving
and delivering to the nearest postoffice or postal car mail
matter properly stamped." Also sections thirteen,
twenty-three, twenty-seven, and twenty-eight of said Act;

"An Act to amend section fifty-four hundred and forty
of the Revised Statutes," approved May seventeenth,
eighteen hundred and seventy-nine;

Sections one, three, and four of "An Act to amend
section fifty-three hundred and fifty-two of the Revised
Statutes of the United States, in reference to bigamy, and
for other purposes," approved March twenty-second,
eighteen hundred and eighty-two;

904 Federal Criminal Law Procedure.

Sections eleven, twelve, thirteen, and fourteen, and
fifteen of "An Act to regulate and improve the civil
service of the United States," approved January six-
teenth, eighteen hundred and eighty-three;

"An Act making it a felony for a person to falsely
and fraudulently assume or pretend to be an officer or
employee acting under authority of the United States
or any department or officer thereof, and prescribing a
penalty therefor," approved April eighteenth, eighteen
hundred and eighty-four;

"An Act to prevent and punish the counterfeiting
within the United States of notes, bonds, or other se-
curities of foreign governments," approved May six-
teenth, eighteen hundred and eighty-four;

Section nine of "An Act making appropriations for
the current and contingent expenses of the Indian De-
partment and for fulfilling treaty stipulations with vari-
ous Indian tribes for the year ending June thirtieth,
eighteen hundred and eighty-six, and for other pur-
poses," approved March third, eighteen hundred and
eighty-five ;

Section two of "An Act to amend the Act entitled 'An
Act to modify the money-order system, and for other
purposes,' approved March third, eighteen hundred and
eigh ty- three, " approved January third, eighteen hun-
dred and eighty-seven;

Section three, four, five, nine, and ten of "An Act to
amend an Act entitled 'An Act to amend section fifty-
three hundred and fifty-two of the Revised Statutes of
the United States, in reference to bigamy, and for other
purposes,' approved March twenty-second, eighteen hun-
dred and eighty-two," approved March third, eighteen
hundred and eighty-seven;

Section two of "An Act relating to permissible marks,
printing or writing, upon second, third, and fourth class
matter, and to amend the twenty-second and twenty-
third sections of an Act entitled 'An Act making ap-
propriations for the service of the Post-Office Department
for the fiscal year ending June thirtieth, eighteen hun-
dred and eighty, and for other purposes,' " approved
January twentieth, eighteen hundred and eighty-eight;

Repealing Pkovisions. 905

< i

An Act to amend section fifty-three hundred and
eighty-eight of the Eevised Statutes of the United States
in relation to timber depredations," approved June
fourth, eighteen hundred and eighty-eight;

"An Act relating to postal crimes, and amendatory of
the statutes therein mentioned," approved June eigh-
teenth, eighteen hundred and eighty-eight;

"An Act amendatory of 'An Act relating to postal
crimes and amendatory of the statutes therein mention-
ed," approved June eighteenth, eighteen hundred and
eighty-eight, and for other purposes," approved Sep-
tember twenty-sixth, eighteen hundred and eighty-eight;

"An Act to punish, as a felony, the carnal and unlaw-
ful knowing of any female under the age of sixteen
years," approved February ninth, eighteen hundred and
eighty-nine;

Sections one and two of "An Act to punish dealers and
pretended dealers in counterfeit money and other fraud-
ulent devices for using the United States mails," ap-
proved March second, eighteen hundred and eighty-nine;

Section one of "An Act to amend certain sections of
the Revised Statutes relating to lotteries, and for other
purposes," approved September nineteenth, eighteen hun-
dred and ninety;

"An Act further to prevent counterfeiting or manufac-
ture of dies, tools, or other implements used in counter-
feiting, and providing penalties therefor, and providing
for the issue of search warrants in certain cases," ap-
proved February tenth, eighteen hundred and ninety-
one;

"An Act to amend sections fifty-three hundred and
sixty-five and fifty three hundred and sixty-six of the
Revised Statutes relating to barratry on the highseas,,:
approved August sixth, eighteen hundred and ninety-
four;

Sections one and two of "An Act for the suppression of
lottery traffic through national and interstate commerce
and the postal service, subject to the jurisdiction and
laws of the United States," approved March second,
eighteen hundred and ninety-five;

906 Federal Criminal Law Procedure.

"An Act to prohibit prize fighting and pugilism and
fights between men and animals, and to provide penalties
therefor in the Territories and the District of Columbia, ' '
approved February seventh, eighteen hundred and ninety-
six;

That part of "An Act making appropriations for the
Department of Agriculture for the fiscal year ending-
June thirtieth, eighteen hundred and ninety-five," ap-
proved August eighth, eighteen hundred and ninety-four,
and that part of "An Act making appropriations for
the Department of Agriculture for the fiscal year ending
June thirtieth, eighteen hundred and ninety-six," ap-
proved March second, eighteen hundred and ninety-five,
and that part of "An Act making appropriations for the
Department of Agriculture for the fiscal year ending
June thirtieth, eighteen hundred and ninety-seven," ap-
proved April twenty-fifth, eighteen hundred and ninety-
six, which reads as follows: "Any person who shall
knowingly issue or publish any weather forecasts or warn-
ings of weather conditions falsely representing such fore-
casts or warnings to have been issued or published by
the Weather Bureau, United States Signal Service, or
other branch of the government service, shall be deemed
guilty of a misdemeanor, and, on conviction thereof, for
each offense be fined in a sum not exceeding five hundred
dollars, or imprisoned not to exceed ninety days, or be
both fined and imprisoned, in the discretion of the court;"

That part of "An Act making appropriations for cur-
rent and contingent expenses of the Indian Department
and fulfilling treaty stipulations with various Indian
tribes for the fiscal year ending June thirtieth, eighteen
hundred and ninety-seven, and for other purposes," ap-
proved June tenth, eighteen hundred and ninety-six,
which reads as follows: "Provided further, That here-
after it shall be unlawful for any person to destroy, de-
face, change, or remove to another place any section
corner, quarter-section corner, or meander post on any
Government line of survey, or to cut down any witness
tree or any tree blazed to mark the line of a Government
survey, or to deface, change, or remove any monument
or bench mark of any Government survey. That any

Eepealing Provisions. 907

person who shall offend against any of the provisions of
this paragraph shall be deemed guilty of a misdemeanor,
and, upon conviction thereof in any court, shall be fined
not exceeding two hundred and fifty dollars or be im-
prisoned not more than one hundred days. All the fines
accruing under this paragraph shall be paid into the
Treasury, and the informer in each case of conviction
shall be paid the sum of twenty-five dollars;"

"An Act to reduce the cases in which the penalty of
death may be inflicted," approved January fifteenth,
eighteen hundred and ninety-seven;

"An Act to prevent the carrying of obscene literature
and articles designed for indecent and immoral use from
one State or Territory into another State or Territory,"
approved February eight, eighteen hundred and ninety-
seven ;

"An Act to prevent forest fires on the public domain,"
approved February twenty-fourth, eighteen hundred and
ninety-seven;

"An Act to prevent the purchasing of or speculating in
claims against the Federal Government by United
States officers," approved February twenty-fifth, eigh-
teen hundred and ninety-seven;

"An Act to amend section fifty-four hundred and fifty-
nine of the Revised Statutes, prescribing the punishment
for mutilating United States coins, and for uttering or
passing or attempting to utter or pass such mutilated
coins," approved March third, eighteen hundred and
ninety-seven ;

Section eighteen of "An Act to amend the laws relat-
ing to navigation, ' ' approved March third, eighteen hun-
dred and ninety-seven;

That part of section one of "An Act making appropria-
tions for the service of the Post-Office Department for
the fiscal year ending June thirtieth, eighteen hundred
and ninety-nine," approved June thirteenth, eighteen
hundred and ninety-eight, which reads as follows: "Pro-
vided, That any person or persons who shall place or cause
to be placed any matter in the mails during the regular
weighing period, for the purpose of increasing the weight
of the mails with intent to cause an increase in the com-

908 Federal Criminal Law Procedure.

pen sat ion of the railroad mail carrier over whose route
such mail matter may pass, shall be deemed guilty of
a misdemeanor, and shall on conviction thereof be fined
not less than five hundred dollars nor more than twenty
thousand dollars, and shall be imprisoned at hard labor
not less than thirty days nor more than five years;"

Section seventeen of "An Act to provide revenue for the
Government, and to encourage the industries of the Unit-
ed States," approved July twenty-fourth, eighteen hun-
dred and ninety-seven;

Section three of an Act entitled "An Act making ap-
propriations for the service of the Post-Office Department
for the fiscal year ending June thirtieth, nineteen hundred
and four, and for other purposes," approved March
third, nineteen hundred and three;

"An Act to protect the harbor defenses and fortifica-
tions constructed or used by the United States from
malicious injury, and for other purposes," approved July
seventh, eighteen hundred and ninety-eight;

"An Act to amend an Act entitled 'An Act to prevent
forest fires on the public domain,' approved February
twenty-fourth, eighteen hundred and ninety-seven," ap-
proved May twenty-fifth, nineteen hundred;

Sections two, three, and four of "An Act to enlarge
the powers of the Department of Agriculture, prohibit
the transportation by interstate commerce of game killed
in violation of local laws, and for other purposes," ap-
proved May twenty-fifth, nineteen hundred;

"An Act to prevent the sale of firearms, opium, and
intoxicating liquors in certain islands of the Pacific,"
approved February fourteenth, nineteen hundred and
1 wo ;

"An Act for the suppression of train robbery in the
Territories of the United States and elsewhere, and for
other purposes," approved July first, nineteen hundred
and two;

"An Act conferring jurisdiction upon the circuit and
district courts for the district of South Dakota in certain
cases, and for other purposes," approved February sec-
ond, nineteen hundred and three;

Eepealing Peovisions. 900

"An Act to amend section three of the 'Act further to
prevent counterfeiting or manufacturing of dies, tools,
or other implements used in manufacturing,' and so
forth, approved February tenth, eighteen hundred and
ninety-one," approved March third, nineteen hundred
and three;

"An Act for the protection of the Bull Run Forest Re-
serve and the sources of the water supply of the city of
Portland, State of Oregon," approved April twenty-
eighth, nineteen hundred and four;

"An Act to amend the Act of February eighth, eigh-
teen hundred and ninety-seven, entitled 'An Act to pre-
vent the carrying of obscure literature and articles de-
signed for indecent and immoral use from one State or
Territory into another State or Territory,' so as to pre-
vent the importation and exportation of the same;" ap-
proved February eighth, nineteen hundred and five;

"An Act to amend section thirteen of chapter three
hundred and ninety-four of the Supplement of the Re-
vised Statutes of the United States," approved March
second nineteen hundred and five;

Section five of "An Act to amend sections forty-four
hundred and seventeen, forty-four hundred and fifty-
three, forty-four hundred and eighty-eight, and forty-
four hundred and ninety-nine of the Revised Statues re-
lating to misconduct by officers or owners of vessels,"
approved March third, nineteen hundred and five;

"An Act to punish the cutting, chipping, or boxing of
trees on the public lands," approved June fourth, nine-
teen hundred and six.

Sections sixteen, seventeen, and nineteen of "An Act
to establish a bureau of immigration and naturalization,
and to provide for a uniform rule for the naturalization
of aliens throughout the United States," approved June
twenty-ninth, nineteen hundred and six.

An Act entitled "An Act to prohibit corporations from
making money contributions connection with political
elections," approved January twenty-sixth, nineteen hun-
dred and seven.

An Act entitled "An Act to amend sections one, two,
and three of an Act entitled 'An Act to prohibit shang-

910 Federal Criminal Law Procedure.

haiing in the United States,' approved June twenty-
eight, nineteen hundred and six," approved March sec-
ond, nineteen hundred and seven.

An Act entitled "An Act to promote the safe transpor-
tation in interstate commerce of explosives and other
dangerous articles, and to provide penalties for its viola-
tion," approved May thirteenth, nineteen hundred and
eight.

An Act entitled "An Act to amend section fifty-four
hundred and thirty-eight of the Revised Statutes," ap-
proved May thirtieth, nineteen hundred and eight.

Also all other sections and parts of sections of the
Revised Statutes and Acts and parts of Acts of Congress,
in so far as they are embraced within and superseded by
this Act, are hereby repealed; the remaining portions
thereof to be and remain in force with the same effect
and to the same extent as if this Act had not been passed.

§ 342. Accrued rights, etc., not affected. — The repeal
of existing laws or modifications thereof embraced in
this title shall not affect any act done, or any right ac-
curring or accrued, or any suit or proceeding had or com-
menced in any civil cause prior to said repeal or modifica-
tions, but all liabilities under said laws shall continue and
may be enforced in the same manner as if said repeal or
modifications had not been made.

§ 343. Prosecutions and punishments. — All offenses
committed, and all penalties, forfeitures, or liabilities in-
curred prior to the taking effect hereof, under any law
embraced in, or changed, modified, or repealed by this
title, may be prosecuted and punished in the same manner
and with the same effect as if this Act had not been passed.

§ 344. Acts of limitation. — All acts of limitation,
whether applicable to civil causes and proceedings, or
for the recovery of penalties or forfeitures, embraced in,
modified, changed, or repealed by this title, shall not be
affected thereby; and all suits or proceedings for causes
arising or acts done or committed prior to the taking
effect hereof may be commenced and prosecuted within
the same time and with the same effect as if said repel
had not been made.

Repealing Provisions. 911

§ 345. Date this act shall be effective. — This Act shall
take effect and be in force on and after the first day of
January, nineteen hundred and ten.

Approved, March 4, 1909.

INDEX TO FOREGOING PENAL CODE.

Abortion : Sec.

Aiding in trading, etc., in

articles to produce, .... 102
Articles to produce, non-
mailable 211

Shipment of articles to pro-
duce, in foreign and in-
terstate commerce 245

Traffic in articles to pro-
duce, in Territories ... 312
Accessories :

Punishment of 333

Adultery:

Punishment for 316

Affidavits :

Altering, counterfeiting,

etc 28

Taking or carrying away,

etc., unlawfully 40

Unlawful use of, to secure
payment of claims, etc. 40
Aliens:

Counterfeiting oath, etc.,
relating to naturalization

of 76

Depriving, of civil rights. 20
Animal Industry Bureau:

Forcibly resisting officers

of 62

Armories :

Enticing workmen from. 43
Hiring or concealing em-
ployees of 43

Arms :

Purchasing or receiving, in

pledge from soldiers . . 35
Stealing, etc., of United

States 36

Army posts:

See Military reservations.
Arsenals :

Arson of 286

Enticing workmen from . . 43
Hiring or concealing em-
ployees of 43

Unlawful presence upon . 45
Arson :

Of arsenal, etc 286

Of dwelling house 285

Assault :

With intent to commit

murder, rape, etc 276

Bail :

Procuring false 127

See Securities.

Bankers : Sec.

Converting, using, etc.,

public moneys 96

Bids:

Altering, counterfeiting,

etc 28

Having in possession alter-
ed, etc., with intent to
defraud 28

Uttering or publishing al-
tered, etc 28

Birds:

Hunting, etc., on preserves 84

Importation of certain,

prohibited 241

Blood:

No conviction to work cor-
ruption of 324

Bonds :

Altering, counterfeiting,
etc 28

Having in possession al-
tered, etc., with intent
to defraud 28

Imitating, printing adver-
tisements on, etc 177

Uttering or publishing al-
tered, etc 28

Bribery :

Acceptance of, by juror,
judicial officer, etc 133

Attempting, of Members of
Congress Ill

Of government officials . . 39

Of judge or judicial officer 131

Of members of Congress. 110

Officers of United States
accepting 117

Of revenue officers 67

Of witnesses 134

Bull fights:

Prohibited 320

Bull Run National Forest:

Trespassing upon 55

Bureau of Animal Industry:

See Animal Industry Bu-
reau.

Certificates:

Altering, counterfeiting,

etc 20

Falsifying by officials . . 106
Having in possession al-
tered, etc., with intent
to defraud 30

914

Index.

Certificates — Continued. Sec.

Imitating, printing adver-
tisements on, etc 177

Officials making false, to
obtain payment of claim 35

Postmaster making false. 222

Taking or carrying away,
etc., unlawfully 40

Unlawful use of, to secure
payment of claims, etc. 40

Uttering or publishing al-
tered, etc 29

Certificates of entry:

Altering, counterfeiting,
etc., by officers 63

Citizens:

Falsely claiming to be, of
United States 79

Intimidation of, in exercise
of rights, etc., secured
by Constitution 19

Citizenship :

Counterfeiting certificate
of 74

Counterfeiting, etc., signa-
ture, etc., to obtain cer-
tificate of 76

Denying, after naturaliza-
tion 77

Engraving plate, etc., for
printing certificate of . . 75

False impersonation to ob-
tain tertificate of 76

Falsely claiming 79

Printing or photographing
certificates of 75

Selling, etc., certificate of 76

Unlawful possession, etc.,
of counterfeit certificates
of 77

Unlawful possession of
counterfeit plates, etc.,
of certificates of 75

Unlawful use of certificates

of 78

Claims:

Aiding in payment of false 35

Court officials purchasing,
for fees, etc 104

False presentation of
against United States . . 35

Members of Congress be-
ing interested in, against
United States 113

Officers not to be interest-
ed in, against United
States 10!)

Presenting false, etc., as to
mail matter 224

Clerks of courts: Sec.

Failure of, to deposit

moneys 99

Purchasing claims for wit-
ness fees, etc 104

Receiving money, as a loan

etc., from 100

Cohabitation:

Unlawful 314

Coins:

Counterfeited, to be for-
feited 172

Counterfeiting, gold and

silver 163

Counterfeiting, importing,

etc., designs of 171

Counterfeiting, etc., dies

for foreign 170

Counterfeiting, etc., dies

for, of United States .. 16')
Debasement of, by officers

of mint 166

Embezzling, by officers of

mint 166

Making, etc., devices of

minor 163

Making, etc., in resem-
blance of money 167

Marshals, etc., authorized
to search for counter-
feited 173

Minor; counterfeiting, etc. 164
Mutilating, scaling, etc. . . 165
Passing, etc., counterfeited 16:5
Passing, etc., or bringing
into United States muti-
lated, etc 105

Commerce :

Foreign and interstate —
Depositing obscene
books, etc., for ship-
ment in 245

Importation of certain
animals and birds

prohibited 24 1

Interstate Commerce
Commission to regu-
late transportation
of explosives in .... 233
Marking of packages
containing birds and
animals to be ship-
ped in 243

Marking of packages
containing explo-
sives to be shipped

in 235

Shipment of lottery

tickets, etc., in .... 237
Unlawful shipment of
dynamite, etc., in . . 232

Index.

915

Commerce, Foreign, etc. — Continued.

Sec.

Unlawful shipment of
liquid nitroglycerin,

etc., in 234

Interstate —

Packages containing
intoxicating liquors
for shipment in, to
be marked as such . 240
Shipment of certain
birds and animals
in, prohibited ; ex-
ception 242

Shipment of intoxicat-
ing liquors in; com-
mon carrier not to
collect purchase

price of 239

Shipment of intoxicat-
ing liquors in; de-
livery to be to bona

fide consignee 238

Conspiracy :

To cast away vessel 296

To commit any offense
against United States ;

all parties liable 37

To induce an officer of
United States to leave
any State, Territory, etc. 21
To intimidate, etc., citizen
in free exercise of right,
etc., secured by Consti-
tution 19

To intimidate witnesses,

jurors, etc 136

To prevent any person
from accepting or hold-
ing office 21

Seditious 6

Consuls :

Falsely certifying invoices 70
Contracts :

Altering, counterfeiting,

etc., 2S

Employees of postal service
not to become interested
in, for carrying mails,

etc 226

Having in possession al-
tered, etc., with intent

to defraud 28

Members of Congress in-
interested in 114

Officers making, to pay
larger sum than appro-
pirated 98

Officials making, with
Members of Congress ... 115

Contracts — Continued. Sec.

Procuring, by Members of

Congress 1 12

Uttering or publishing al-
tered, etc 28

Conveyances :

Falsely certifying record-
ing of 105

Corporations :

Circulating bills of expired 174
Contributions by, to elec-
tions 83

Officers of, not to act as
government agents to
make public contracts.. 41
Counterfeit money:

Using mails to distribute 215

Counterfeiting:

Banks notes of foreign gov-
ernments 158

Bonds, notes, etc., of for-
eign governments 156

Certificates of citizenship . 74
Certificates of entry by

officials 63

Designs of coins 171

Dies for coins of United

States 169

Dies, etc., for foreign coins 170
Gold and silver coins .... 163
Issue of search warrants to

detect 173

Letters patent 27

Military bounty-land war-
rant, etc 73

Minor coins 164

Money orders 218

National-bank notes 14:)

Postage stamps, foreign . . 220
Postage stamps, postal

cards, etc 219

Begistry or enrollment of

vessel 72

Securities of United States 14S
Signature of postmaster . . 218
Uttering, etc., military
bounty-land warrant, etc. 73
Courts :

Crimes defined in title cog-
nizable by circuit and
district 340

Officers of, failing to de-
posit moneys, etc 99

Officers of, purchasing
claims for witness fees,
etc 104

Beceiving loan etc., from
officers of 100

916

Index.

Crop reports: Sec.

Officials giving advance
information respecting . . 123

Officials issuing false statis-
tics respecting 124

Assaulting, etc., officer of . 65

Death:

Infliction of penalty of, by

hanging 323

Deeds :

Altering, counterfeiting,
etc 29

Having in possession al-
tered, etc., with intent
to defraud 30

Uttering or publishing al-
tered, etc 2!)

Desertion :

Enticing, from army and

navy 42

District courts:

Jurisdiction in offenses

against neutrality 14

Dynamite:

Shipping, unlawfully, in
foreign and interstate

commerce 232

Elections :

Contributions to, by cor-
porations and national
banks 83

Intimidation of voters by
officers, etc., of army
and navy at 23

Officers, etc., of army and
navy, intimidating offi-
cers of 25

Officers of army or navy,
prescribing qualifications
of voters at 24

Unlawful presence of

troops at 22

Embezzlement:

Of coins by officers of mint 160

Of mail matter 194

By officers, clerks, of
United States 86

Of postal funds, property,
etc 225

Of public moneys, by dis-
bursing officers 87

Of public moneys, by in-
ternal-revenue officers . . 97

Of public property 47

Explosives :

Death or injury from, in
transportation ; person
liable 236

Interstate Commerce Com-
mission to regulate
transportation of 233

Explosives — Continued. Sec.

Marking packages contain-
ing 235

Sending, in mails, prohib-
ited 217

Shipping unlawfully, in
foreign and interstate J 232

commerce { 234

Extortion:

By officers of United States 85

By threats of informing, etc 14.">
Felony :

Definition of 335

Misprision of 146

Female :

Having carnal knowledge
of, under 16 279

Payment of fine to, when
seduced 28 1

Seduction of, passenger on

vessel . 280

Fines:

For timber depredations,
to be paid into public
school fund 54

Foreign governments:

Accepting commission to
serve, against friendly
power 9

Argumenting force of war
vessels of 12

Counterfeiting, etc., bank
notes of 158

Counterfeiting, etc., de-
signs of coins of 17 1

Counterfeiting, etc., dies
for coins of 170

Counterfeiting, etc., post-
age stamps of 220

Counterfeiting, etc., secu-
rities of 156

Enlisting in service of ... . 10

Fitting out and arming ves-
sels to serve 11

Having in possession, etc.,
counterfeited, etc., bank
notes of 160

Having unlawful posses-
sion of plates for print-
ing securities of 161

Organizing military expedi-
tions against 13

Passing, etc., counterfeit-
ed, etc., bank notes of.. 159

Piracy by subjects of .... 305

Unauthorized correspon-
dence with 5

Forgery :

Of bids, etc 28

Of certificates, etc 35

Index.

917

Forgery — Continued. Sec.

By connecting parts of dif-
ferent instruments .... 162

Of deeds, etc 29

Of judicial papers, etc. . . 130

Of letter patent 27

Of securities of United

States 148

Fornication :

Punishment for 3 IS

Fortifications:

Destroying property of . . . 44
Forts :

Unlawful presence upon . . 45
Gift enterprises:

See Lotteries.
Goods :

Receiving stolen, etc 288

"Green goods : "

See Counterfeit money.
Gunpowder :

See Dynamite.
"Hard labor:"

Ommission of words from

title 338

Hostility against the Govern-
ment:

Enlisting in United States
to serve in 8

Recruiting soldiers etc.,

for 7

Incest :

Definition of; punishment 317

1 ndian reservations :

Crimes on, in South Da-
kota 320

Cutting, etc., timber on . . 50
Indians committing crimes

on 328

Indians :

Punishment of, for crimes

in Territories 328

Insurrection:

Inciting against United

States 4

Internal revenue:

Assaulting, etc., officer of 65

Interstate Commerce Commis-
sion:
To regulate transportation

of explosives 233

Intoxicating liquors:
See Liquors.

Invoices:

Concealing or destroying,

of merchandise 64

Consuls falsely certifying. 70

Judges :

Accepting bribe 132

Bribery of 131

Jurors : Sec.

Accepting bribe 133

Attempting to influence by

writing 137

Conspiracy to intimidate,

etc 130

Intimidating, corrupting,

etc 135

Kidnaping:

Bringing kidnaped persons

into United States 271

Definition of 26S

Larceny :

Punishment for 287

Letters patent:

Uttering, etc., forged or
counterfeited 27

Limitation:

Acts of 344

Liquors :

Interstate shipment of in-
toxicating; common car-
rier not to collect pur-
chase price of 23!*

Interstate shipment of in-
toxicating; delivery to
be to bona fide consignee 238

Interstate shipment of in-
toxicating ; packages
containing, to be mark-
ed as such 240

Sending, in mails, prohib-
ited 217

Lotteries :

Importing, etc., tickets of 237

Matter relating to, non-
mailable 213

Postmasters not to be

agents for 2 J 4

Lottery tickets:

See Lotteries.

Mail bags:

Injuring, etc 189

Mail matter:

See Mails.
Mails (see also Post-offices) :

Assaulting carrier of, with
intent to rob 197

Carried by foreign vessel,
to be delivered to post-
office 203

Carrying letters out of, on
post routes 184

Carrying letters out of, on
vessels 185

Carrying letters, etc., with-
out compensation 180

Conveyance of, by private
express 181

Delaying, by ferryman . . , 202

918

Index.

Mails — Continued. Sec.

Delivery of, by master of
vessel 200

Deserting 199

Detaining, embezzling, etc.,
by postmaster 105

Foreign vessels to deliver,
before entry is allowed. 204

Fraudulent us of enve-
lopes, to avoid payment
of postage 227

Fraudulently increasing
weight of 228

Having in possession
stolen, etc 194

Illegal carrying, by car-
riers, etc 180

Inclosing higher class, in
lower class, etc 221

Injuring bags for carrying 189

Injuring, destroying, etc. 198

Injuring letter box, lock
box, etc 198

Libelous, indecent, etc.,
envelopes, cards, etc.
excluded from 212

Liquors etc., excluded
from 217

Lottery ticket, gift enter-
prise, etc., excluded
from 213

Obscene, etc., matter, ex-
cluded from 211

Obstructing, etc 201

Offenses against foreign,
in transit 229

Poisons and explosives ex-
cluded from; exception 217

Presenting false claims,
etc. in relation to .... 224

Robbery of 197

Securing admission of pub-
lications, of, at second-
class rate, by fraud . . . 223

Sending, by private ex-
press 183

Stealing, embezzling, etc. 194

Transporting persons un-
lawfully conveying .... 182

LTse of, to promote fraud. 215

Using for fraudulent
schemes, etc 216

Vehicles, etc., claiming to
be carriers of 188

Wearing uniform of carrier
of 187

Maiming:

Punishment for 283

Manslaughter:

Assault with intent to com-
mit 276

Manslaughter — Continued. Sec.

Attempt to commit 277

Definition of 274

Place where crime deemed
to have been committed 336

Punishment for 275

Marriage : Sec.
Failing to record certifi-
cates of 319

Marshals :

Allowing prisoner tc es-
cape 138

Rescuing body of executed

offender from 144

Members of Congress:

Being interested in con-
tracts 114

Offering bribe, etc., to... Ill
Officials making contracts

with 115

Procuring contracts, offices

etc 112

Receiving compensation

for official services... 110
Receiving compensation
for services in claims,

etc 113

Soliciting or accepting

bribe HO

Soliciting or receiving
political contributions . . 118
Merchandise:

Admitting, to entry for

less than legal duty 68

Securing entry of, by false

samples 69

Military Reservations:

Unlawful presence upon.. 54
Misdemeanor:

definition of 335

Misprision of felony;

See Felony.
Misprision of treason:

See Treason.
Money Jrders.
. Counterfeiting 218

Issuing, without payment,
by postmasters 210

Presenting forged, etc.,

for payment 218

Murder :

Assault with intent to com-
mit 276

Attempt to commit 277

Body of executed offender
may be delivered to sur-
geon for dissection.... 331

Definition of 273

Place where crime deemed
to have been committed 336

Punishment for 275

Index.

919

Murder — Continued. See.

Verdiet for crime of, may

be qualified 330

Mutiny :

Inciting, by crew of vessel,
etc 292

Contr buttons by, to elec-
tions 83

National-bank notes:

Connecting different parts
of 162

Counterfeiting, altering,
etc 149

Imitating, printing adver-
tisements on, etc 175

Mutilating or defacing.. . . 176
National currency:

See National-bank notes.
Naturalization:

Counterfeiting, etc., signa-
ture, etc., relating to . . 76

Denying citizenship after. 77

False swearing in proceed-
ings relating to 80

Jurisdiction in proceedings

for 81

Using false certficates of. 79
Newspapers :

Detention, etc., of, by
postmasters 196

Nitroglycerin:

Shipping, unlawfully, in
foreign and interstate
commerce 234

Notes :

Issue of, for less sum than

$1, prohibited 178

Oaths :

Counterfeiting, relating to
naturalization of aliens 76

Officer making false ac-
knowledgment with re-
spect to contracts, etc., 31

"Obligation or other se-
curity of the United
States" (See also Se-
curities) :

Definition of phrase 147

Obscene literature:

See under Publications and
Mails.
Office :

Disqualification for hold-
ing, of honor, etc 26

Officers :

Accepting bribe 117

Aiding in trading, etc., in

obscene Publications etc. 102
Conversion of public mon-
eys by 95

Officers — Continued Sec.

Disbursing —

Converting, etc., pub-
lic money to own

use, etc 87

Trading in public

funds, etc 103

Embezzlement by 94

Extortion by 85

Failing to : lake returns or

reports 83

Falsely pretending to be,
of United States 32

Giving out advance infor-
mation respecting crop
reports 123

Issuing false statistics re-
specting crop reports.. 124

Making contracts in excess
of appropriations 98

Making false certificates,
etc 106

Obstructing, etc., in serv-
ing process 140

Prosecuting claims against
United States 109

Receipting for larger sums
than are paid 86

Receiving political contri-
butions 118

Pacific islands:

Selling arms, etc., to na-
tives of 308

Pension agents :

Receiving illegal fees . . . 108

Peonage (see also Slaves) :

Holding, itc, persons in . . 269

Perjurj :

Definition of 125

Subornation of 126

Piracy:

Accessories to 334

Seizure of persons to make

slaves of, is act of ... . 247
By subjects of foreign

state 305

Under color of foreign

commission. ... 304

Under the law of nations. 290

Pitch :

See Turpentine.

Poisons :

Sending, improperly, in the

mails 217

Political contributions:

By corporation or nation-
al banKs 83

Immunity, from, by offi-
cers, employees, etc. . . . 120

920

Index.

Political Contributions — Continued.

Sec.

Members of Congress, offi-
cials, etc., soliciting or
receiving 118

Officials, etc., not to give
to Members of Ccngress,
other officials, etc 121

In public buildings, pro-
hibited 119

Polygamy :

Definition of; punishment 213
Post-offices (see also Mails) :

Breaking into and entering 192

Conducting fraudulent
schemes, by use of .... 216

Conducting, without au-
thority 179

Stealing, etc., mail locks,
etc., of 191

Stealing, etc., property of 190
Postage stamps:

Counterfoil etc 213

Failure to cancel, by post-

tc 220

Foreign — Counterfeiting,

master 209

Unla ful selliug, etc., by
postmaster 208

Using, seilir.g, etc., c l-
celed, 20

Postal cars:

Unlawfuly entering 193

Postal service (see also Mails) :

Definition of phrase 231

Employees of, not to be in-
terested in contracts for
carrying mails, etc 226

Employees of, to take oath 230

Wearing uniform of letter

carrier in 187

Postmasters :

Collecting unlawful post-
age 207

Detaining, Embezzling, etc.
mail matter 195

Detaining, Embezzling,
etc., newspapers 196

Failing to account for

postage, etc 209

Forging signature of ... . 218
Illegally approving bond,

etc 222

Issuing money order with-
out payment 210

Making false returns, etc. 206
Not to act as lottery agents 214
Unlawful selling, pledging,
etc., of postage stamps,
etc 208

Powers of attorney: Sec.

Altering, counterfeiting,

etc 29

Unlawfully taking or carry-
ing away, etc 40

President:

Power of, to pardon .... 327
Principals :

Definition of 332

Prisoners :

Allowing, tc escape 138

Rescuing, etc ( 141

{ 143
Rescuing, at executions . . 142
Prize fights :

Prohibited 320

Prize property:

Fraudulently disposing of,
etc 38

Proposals :

Altering, counterfeiting,
etc 28

Having in possession al-
tered, etc., with intent
to defraud 28

Uttering or publishing al-
tered, etc 28

Public domains:

See Public lands.

Public lands:

Chipping, etc., timber on,

to obtain pitch, etc. ... 51

Cutting, etc., timber on. . . 49
Defacing, destroying, etc.,

survey marks on 57

Destroying property on. . . 56
Failing to extinguish fires

started on 53

Grazing stock on, etc. ... 56
Hunting birds, etc., on pre-
serves 84

Interfering with sales of. . 59

Preventing surveys of. ... 58

Setting fire to timber on. . 52

Public moneys:

Banker, etc., unlawfully
receiving, using, etc. ... 96

Conversion, etc., of by cus-
todians 89

Conversion, etc., of, by dis-
bursing officers 87

Conversion of; what con-
stitutes 95

Embezzlement of, by in-
ternal revenue officers. . 97

Failure of officers, etc., to
render accounts of 90

Failure to make deposit of. 91

Failure to safely keep by
Treasurer, etc 88

Index.

921

Public Money — Continued. Sec.

Proceedings to prove em-
bezzlement of 93

Refusing to pay draft, etc.,
of accounting officer for. 94
Public property:

Embezzlement of 47

Officers trading in 103

Receiving, etc., embezzled. 48
Public records:

Altering, counterfeiting,
etc 28

Destroying, concealing, etc.,
128

Destroying, concealing, etc.,
by custodian 129

Having in possession al-
tered, etc., with intent
to defraud 28

Uttering or publishing al-
tered, etc 28

Publications :

Aiding in trading, etc., in
obscene, etc 102

Circulation of obscene, in
Territories 312

Libelous, indecent, etc.,
matter on envelopes,
wrappers, etc., nonmail-
able 212

Obscene, etc., nonmailable. 211

Shipment of obscene, etc.,
in foreign and interstate

commerce 245

"Pugilistic encounters : "

Definition of phrase 321

Rape:

Assault with intent to com-
mit 276

Body of executed offender
may be delivered to sur-
geon for dissection 331

By Indians, upon an In-
dian 328

Punishment for 278

Verdict for crime of, may

be qualified 330

Rebellion :

Inciting, against United
States 4

Receipts:

Altering, counterfeiting,
etc 29

Having in possession al-
tered, etc., with intent
to defraud 29

Uttering or publishing al-
tered, etc 29

Revenue officers:

Admitting goods to entry
at less than lej;al duty. . 68

Revenue Officers — Continued. Sec.

Bribery of 67

Falsely representing to be 66
Rescuing, etc., property

detained by 71

Rights :

Accrued —

Not affected by repeals

342

Robbery :

Accessories to 334

Assault with intent to com-
mit 276

By crew of piratical vessels 302
Of personal property of

United States 46

Punishment for 284

Of trains, etc., in Terri-
tories 322

Seamen :

Aiding or enticing to de-
sert 42

Harboring or concealing

deserted 42

Recruiting, to serve against

United States 7

Searches :

Assaulting, etc., person

authorized to make .... 65
Authority to make, to find
counterfeit coins, etc. . . 173

Securities :

Circulating, of expired cor-
porations 174

Connecting different parts
of 162

Counterfeited, to be for-
feited 172

Counterfeiting, of foreign
governments 156

Dealing in counterfeited,
altered, etc 154

Forging, altering, etc 148

Having in possession
counterfeited, or foreign
governments 1 60

Having unlawful posses-
sion of plates for print-
ing, of foreign govern-
ments 161

Having unlawful posses-
sion of tools for printing,
etc 153

Imitating, printing, adver-
tisements on, etc 177

Making, etc., any print,
etc., in similitude of ... 150

Making, selling, using, etc.,
plates to print without
authority 150

Passing, etc., counterfeited,

922

Index.

Securities — Continued. Sec.

of foreign governments, 157
Passing, publishing, sell-
ing, etc., counterfeited. 151
Secreting, etc., tools and

materials for printing . . 155
Taking impressions of
tools, etc., used in print-
ing, stamping, etc 152

Using mails to distribute

counterfeited 215

Seizures:

Assaulting, etc., person
authorized to make .... 65
Shanghaiing {see also Vessels) :

What constitutes 82

See Slaves.
Slaves :

Bringing, into United

States 248

Confining or detaining, on

board vessel 246

Disposal of, found on board

vessels 262

Equipping vessels to trade ( 249

in ) 254

Receiving, on board ves- j 253

sels { 257

Seizing, on foreign shore.. 247
Seizure of vessels trading

in 260

Serving on vessels trading

in 252

Transporting, etc 250

Vessels hovering on coast J 251

with, on board \ 258

Soldiers :

Aiding or enticing to desert 42
Harboring or concealing

deserted 42

Recruiting to serve against

United States 7

South Dakota :

Crimes committed on In-
dian reservations in ... . 329
States :

Laws of, adopted for pun-
ishing wrongful acts, etc. 289
Steamboats :

Inspector of, receiving il-
legal fees 107

Stocks :

Public-
Attempting to have

transferred, falsely . . 33
Falsely personating hold-
er of 33

Obtaining dividends from,
by false representa-
tions 34

Telegraph : gee

Destroying or interfering

with GO

Telephone:

See Telegraph.
Territories:

Circulation of obscene

books, etc., in 312

Conspiracy to induce offi-
cer of United States to

leave 21

Punishment of Indians for

crimes in 328

Traffic in, in articles to
produce abortion, etc. .. 312
Timber :

Chipping, etc., on public
lands, to obtain pitch,

etc 51

Cutting, etc., on public

lands 49

Cutting, etc., on reserva-
tions 50

Setting fire to, on public

lands 52

Treason :

Definition of 1

Misprison of 3

Punishment for 2

Turpentine :

Chipping, etc., trees on
public lands to obtain.. 51
Vessels :

Apprehension of officers of,

engaged in slave trade. 263
Arm«)d —

Engaging in hostilities

against friendly power 16
Instructions to, in re-
lation to slave trade 267
Arming, to cruise against

United States 303

Attacking, with intent to

plunder 298

Breaking and entering, etc. 299
Confining o r detaining

slaves on board of 246

Conspiracy to cast away . . 296
Currupting master of .... 307
Counterfeiting registry or

enrollment of 72

Detaining persons to serve

on 82

Detention of, having war-
like cargo 17

Disposal of persons held as
slaves on 262

Equipping, to trade in £ 249

slaves | 254

Foreign —

Augmenting force of... 12

Index.

923

Vessels, foreign — Continued Sec.
To deliver mails to post-
office 203

Enlisting to serve on... 10
Enlistment of transient
aliens on armed, in
time of peace, not for-
bidden 18

Entry not allowed until
delivery of mail on
board to post-office . . 204
Fitting out and arming 11
Proceedings against, for
offenses against neu- C 14

trality 1 15

Forfeiture of, engaged in C 256

slave trade 1 259

Hovering on coast with j 251
slaves on board of . . . { 258
Inciting mutiny on board

of 292

Inducing, by threats, etc.,

persons to serve on ... . 82
Laying violent hands on

commander of 294

Maltreatment of crew of,

by masters, etc 291

Master of, abandoning crew

on foreign shore 295

Master of, running away

with, etc 306

Master of, seducing female 280
Masters, owners, etc., of,
liable for loss of life,
etc., through negligence 282
Owner destroying at sea . . 300
Owners of, suspected of be-
ing engaged in slave
trade, to give bond .... 266

I Vessels, Passenger — Continued. Sec.
Passenger —

Not permitted to carry
explosives ; exception . 322
Plundering, in distress, etc. 297
Receiving, etc., persons to ( 253

make slaves of ( 257

Eemoval of persons held

as slaves on board of . . . 264
Robbery by crew of pirat-
ical 302

Seizure, of, engaged in ( 260

slave trade ( 261

Serving on, engaged in

slave trade 252

Setting fire to, etc., at sea 301
Usurping command of, by

crew, etc 293

Uttering o r publishing
counterfeited, etc., reg-
istry, etc., of 72

"Vessels of the United States."

Phrase defined 310

Vice-consuls :

See under Consuls.
Weather forecasts:

Issuing or publishing coun-
terfeit 61

Whipping:

Punishment by, abolished 325
Witnesses :

Accepting bribe 134

Conspiracy to intimidate,

etc 136

Intimidating, corruption,

etc 135

Writs :

Altering, stealing, etc 127

Resisting service of 140

Containing a reference to all laws of a general nature, permanent in
character, in force December 1, 1909, having penal provisions not
properly separable from the administrative provisions, not contained
in the Criminal Code, but embraced in the general revision of the*
Laws of the United States.

TITLE II .

THE CONGRESS.

Chapter Six. — The Library of Congress.
Stealing or injuring books of Library of

Congress .19 June, 1878; 20 Stat, 171.

Chapter Seven. — Congressional investiga-
tions.
Witness refusing to testify in congres-
sional inquiry R. S., s. 102.

Chapter Eight. — Contested elections.

Witnesses refusing to testify in con-
tested-election case R. S., s. 116.

Failure to deliver up papers in contested-
election case R. S., s. 123.

TITLE VI.

THE DEPARTMENT OF THE TREASURY.

Chapter One. — The Department.

Officers in Treasury Department engag-
ing in trade, etc. R. S., s. 243.

Clerks in Treasury Department trading
in debts or funds of any State or
United States R. S., s. 244.

TITLE XII.

THE DEPARTMENT OF COMMERCE AND LABOR.

Chapter Six. — The Bureau of Statistics.
Person transporting commodities to
foreign countries failing to deliver
manifest to collector of customs 3 Mar., 1893; 27 Stat, 689.

TITLE XIV.

THE CIVIL SERVICE.

Chapter One. — Appointments, qualifications,
duties, and payments of clerks
and employees.
Officers and employees violating duties f 16 Jan., 1883, s. 7 ; 22 Stat.,
concerning examination of applicants | 405.

926 Appendix.

TITLE XV.

ESTIMATES AND APPROPRIATIONS.

Chapter Tzuo. — Appropriations.

Expenditures not to exceed appropria-
tions; voluntary service, etc., or em-
ployment of unauthorized personal S R. S. s. 3679.
service prohibited 1 27 Feb., 1906; 34 Stat., 49.

TITLE X VI .

THE JUDICIARY.

Chapter Three. — District courts; Removal of
causes.
Clerk of state court refusing to give { 3 Mar., 1875, s. 7 ; 18 Stat.,
copy of record 1 72.

Chapter Four. — District court; Miscella-
neous provisions.
Receiver failing to properly manage f 13 Aug., 1888, s. 2 ; 25 Stat.,
property _ 1 436.

Chapter Eleven. — District attorneys, mar-
shals, clerks, commissioners,
and stenographers.
Clerk of court refusing to make cer-
tificate 22 Feb., 1875, s. 6 ; 18 Stat..

334.

Chapter Twelve. — Pay and allowances of
court officers, jurors and wit-

Marshal, attorney, or other officer ac- f 28 May, 1896, s. 18 ; 29 Stat.,
cepting illegal fee 1 183.

Chapter Twenty. — Extradition.

Opposing, etc., agent of United States
appointed to receive from foreign
government person accused of crime
within jurisdiction of United States___R. S., s. 5277.

Resisting agent of State or Territory
appointed to receive person accused of
crime in another State or Territory R. S., s. 5279.

TITLE XVII.

THE ARMY.

Chapter Eleven. — Articles of war.

Civilian witness failing to obey sub- \ 2 Mar., 1901, s. 1 ; 31 Stat.,
poena of court-martial 1 950.

TITLE XX .

THE NAVY.

Chapter Ten. — Articles for the government
of the navy.
Witness refusing to appear or to tes- f 16 Feb., 1909, s. 12 ; 35 Stat.,
tify before court-martial or court of j 622.
inquiry of the navy [

30 June, 1902, s. 2 ; 32 Stat,
547.

Appendix. 927

TITLE XXI.

DIPLOMATIC AND CONSULAR OFFICERS.

Chapter Two. — Consular officers.

Consular officer accepting appointment
from foreign country as administra-
tor and failing to give bond or ac-
count for moneys

Consular officer exacting excessive feesR. S., s. 1716.

Consular officer making false oath in ac-
counting for fees __ R. S., s. 1728

Consular officer neglecting duty toward

seamen ; corrupt conduct of R. S., s. 1736.

Consular officer making false certificate
of property R. S., s. 1737.

Chapter Three. — Provisions common to dip-
lomatic and consular officers.
Perjury before consular officer, or forg-
ing seal or signature of such officer_R. S., s. 1750.

Embezzlement by consular officer R. S., s. 1734.

21 Dec, 1898; 30 Stat. 771

TITLE XXII.

THE PUBLIC LANDS.

Chapter Three. — Registers and receivers.

Witness refusing to appear or testify f 31 Jan., 1903, s. 3 ; 32 Stat.,

before register or receiver of land of- \ 790.

fice _

Witness refusing to appear or testify ( 31 Jan., 1903, s. 4 ; 32 Stat.,

before officer taking deposition \ 790.

Chapter Five. — Homesteads.

Making false affidavit before command-
ing officer by person in military or
naval service R. S., s. 2293.

Making false affidavit before United ( R. S., s. 2294.

States commissioner \ 4 Mar., 1904 ; 33 Stat., 59.

Officer demanding excessive fees for en- \ R. S., s. 2294.

tries and for final proof 1 4 Mar., 1904 ; 33 Stat., 59.

Chapter Six. — Mineral lands.

Citizens of certain States and Terri- 1 3 June, 1878, s. 3 ; 20 Stat.,
tories cutting timber for other than \ 89.
specified purposes J

Chapter Eight. — Timber and stone lands.

Swearing falsely to application for tim- S 3 June, 1878, s. 2 ; 20 Stat.,

ber or stone land 1 89.

Unlawfully cutting timber on public

land _ 3 June, 1878, s. 4; 20 Stat,

90.

Chapter Thirteen. — Nation forests.

Rules concerning the use and occupancy
of national forests, and penalties for
violation 4 June, 1897; 30 Stat, 35.

92'8 Appendix.

Chapter Fifteen. — Unlawful inclosures. [ 25 Feb., 1885, s. 4 ; 23 Stat.,

Inclosing public lands without title ; ob- ] 322.

structing settlement of or transit over 10 Mar. 1908, s. 1 ; 35 Stat.,

40.

Chapter Nineteen. — Public lands in Okla-
homa.

Fraudulently settling on public lands 2 May, 1890, s. 24; 26 Stat.,

92.

Chapter Tzventy. — Public Lands in Alaska.

Collecting toll unlawfully in Alaska 11 May, 1898, s. 6; 30 Stat.,

410.

TITLE XXIII.

DUTIES UPON IMPORTS.

Importing neat cattle and hides, etc. 5 Aug., 1909, ss. 12, 13 ; 36

Stat, 86.
Falsely marking or removing or altering

marks or brands, on imported articles

or packages 5 Aug., 1909, s. 8 ; 36 Stat., 86.

TITLE XXIV.

COLLECTION OF DUTIES.

Chapter Two. — Qualifications, pay, and du-
ties of officers.
Officer failing to keep table of fees post-
ed up R. S.( s. 2635.

Bribery of customs officer or employee__5 Aug., 1909, s. 28; 36 Stat,

103.

Officer demanding or receiving greater f R. S., s. 2336.

fee, etc., than allowed by law j 5 Aug., 1909, s. 28 36 ; Stat.,

I 103.
Inspector, weigher, gauger, or measurer

receiving fee, etc., other than allowed

by law _ , __R. S., s. 2637.

False certification of shipment by in-
spector or other officer R. S., s. 2637.

Customs officers owning vessels or en-
gaging in importation R. S., s. 2638.

Customs officers failing to render ac- f R. S., s. 2639.

counts of expenditures j 31 July, 1894, s. 19 ; 28 Stat,

[ 210.

Customs officers failing to keep and
render accounts and records of trans-
actions R. S., s. 2640.

Chapter Three. — Revenue-Cutter Service.
Carrying or hoisting pennant or ensign
of revenue service by vessel not in
service; master liable R. S., s. 2764.

Appendix. 929

Chapter Four. — Entry of Merchandise.

Vessel bound for port of delivery fail-
ing to pay duties, etc., at port of en-
try; master liable __R. S., s. 2772.

Vessel departing from port of arrival
before making report of entry; mas-
ter liable , R. S., S. 2773.

Master failing to make report of arrival

of vessel at port R. S., s. 2774.

Master of vessel failing to make special

report of spirits and wines R. S., s. 2775.

Master neglecting to obtain copy of re-
port from collector R. S., s. 2784.

f R. S., s. 2797.
Vessel having more sea stores than in -{ 3 Mar., 1897, s. 17; 29 Stat,

entry; master liable [ 691.

Concealing dutiable articles in baggage R. S., s. 2802.

Master failing to have correct manifest — R. S., s. 2809.
Master failing to produce manifest upon

demand of proper officer R. S., s. 2814.

Customs officer failing to certify on back

of manifest the production thereof____R. S., s. 2814.
Master of vessel failing to mail copy of 1

manifest to Auditor for Treasury De- \- 2 Mar., 1895, s. 9 ; 28 Stat.,

partment j 808.

Master failing to deliver duplicate mani- "j R S., s. 2802.

fests of merchandise for Mississippi [ 16 June, 1880 ; 21 Stat., 283.

River, etc., ports J

Master failing to deliver manifests for] R. S., s. 2822.

merchandise for Mississippi River, ]■ 16 June, 1880 ; 21 Stat., 283.

etc., ports on arrival at port of entry J

Master failing to deliver duplicate

manifests of merchandise for ports in

district of New Orleans R. S., s. 2823.

Master failing to deliver manifests of
merchandise for ports in district of
New Orleans on arrival at port of

entry — R. S., s. 2823.

Master failing to deliver duplicate mani-
fests on departure from port of entry — R- S., s. 2828.
Master failing to deliver manifests to

surveyor of port on arrival --R. S., s. 2829.

Vessel bound for Natchez and Vicksburg

violating revenue laws — R- S., s. 2832.

Master failing to deposit manifest --R- S., s. 2834.

22 June, 1874, s. 2; 18 Stat.,

186.
3 Mar., 1897, s. 15; 29 Stat.,
691.

Master refusing to receive inspector R. S., s. 2834.

22 June, 1874, s. 2; 18 Stat.,

186.
3 Mar., 1907, s. 15; 29 Stat,
691.

Making false statement in declaration 5 Aug., 1909, s. 28; 36 Stat.,

95.
59

930 Appendix.

Chapter Four — Entry of Merchandise — Con

[ R. S., s. 2864.
Making false entry of imported merchan- \ 5 Aug., 1909, s. 28 ; 36 Stat.,
dise I 97.

Smuggling merchandise . R. S., s. 2865.

Making or uttering false or forged in-
voice R- S., s. 2865.

Chapter Five. — Unlading.

Unlading without permit R- S., s. 2867.

Transferring unlawfully from one ves-
sel to another R- S., s. 2868.

Unloading of merchandise at unlawful

hours R- S., s. 2873.

Inspector neglecting duties __R. S., s. 2877.

Landing of wines or spirits without in-
dorsement or permit R. S., s. 2883.

Obliterating, etc., inspection marks, etc.__R. S., s. 2886.

Sealing, etc., empty cask, etc., before ob-
literation of inspection marks R. S., s. 2886. .

Merchandise missing or omitted from

manifest R. S., s. 2887.

Chapter Six. — Appraisal.

Refusing to testify or swearing falsely f 5 Aug., 1909, s. 28 ; 36 Stat.,
before appraiser | 100.

Chapter Seven. — The bond and zvarehouse
system.

f 1 Mar., 1879, s. 12 ; 20 Stat.,

Failing to remove or destroy, etc., stamps I 342.

on packages or casks that had contain- \ 28 May, 1880, s. 12 ; 21 Stat.,

ed imported liquors I 148.

f 1 Mar., 1879, s. 13; 20 Stat.,

Selling or having in possession empty j 343.

cask or package with undestroyed i 28 May, 1880, s. 13 ; 21 Stat.,
stamp affixed [ 148.

Altering, defacing, or obliterating mark
of revenue officer on package of ware-
housed merchandise R. S., s. 2985.

Unlawfully opening warehouse __R. S., s. 2986.

Fraudulently removing or concealing

warehoused merchandise R. S., s. 2987.

Failure to transport and deliver mer-
chandise from port in one collection
district to port in another district — __R. S., s. 3001.

Relanding merchandise exported to
Mexico or to British North America
provinces ___R. S., s. 3008.

Chapter Eight. — Immediate transportation in
bond to inland ports.
Opening, breaking, etc., any car, vessel,
etc., containing merchandise delivered

for transportation R. S., s. 2998.

Knowingly receiving merchandise un-
lawfully removed from car, vessel, etc.__R. S., s. 2998.

Appendix. 931

Chapter Ten. — Drawback.

Relanding goods entered for drawback— ( R. S., s. 3049.

( 24 July, 1897 ; 30 Stat., 195.
Making false entry for benefit of draw-
back R. S., s. 3050.

Chapter Eleven. — Enforcement of customs
laws.

Person in charge of beast or vehicle re-
fusing to allow search __R. S., s. 3062.

Master obstructing or hindering officer

from boarding vessel R. S., s. 3068.

Articles separate from cargo missing, or
seals broken on arrival at port of en-
try; master liable R. S., s. 3069.

Unlawfully breaking locks and fasten-
ings - R. S., s. 3070.

Refusing to assist officer in making

search -R. S., s. 3071.

Importing merchandise contrary to law_--R. S., s. 3081.

Knowingly buying, selling, receiving, etc.,

merchandise imported contrary to law — R. S., s. 3081.

Officer receiving part of informer's fee, (22 June, 1874, s. 7; 18 Stat,

except in smuggling cases ] 187.

f 22 June, 1874, s. 19; 18 Stat.

Officer offering to compromise claims •{ 190.
for fines, etc. [22 Jan., 1875; 18 Stat, 303.

Chapter Twelve. — Commerce with contiguous
countries.

Master or other person failing to de-
liver manifests of goods from con-
tiguous territory R. S., s. 3099.

Owner, master, etc., of vessel failing to
proceed to places of destination named
in manifest R. S., s. 3104.

Unauthorized person breaking, etc., seal-
ed packages, etc. R. S., s. 3105.

Receiving or depositing unlawfully im-
ported merchandise in building on
boundary line R. S., s. 3108.

Shipping sea stores in excess of amount
necessary R. S., s. 3112.

Owner failing to report saloon stores R. S., s. 3113.

Unlading merchandise taken from one
port in United States to another in
other than specified hours R. S., s. 3120.

Masters of vessels engaged in foreign
and domestic trade on northern, etc,
frontiers, etc., failing to observe rules
in R. S., ss. 3116 to 3124, inclusive R. S., s. 3125.

Registered vessels touching at foreign
ports failing to observe laws concern-
ing manifests and report and entry of
vessels R. S., s. 3126.

Master of vessel failing to observe cer-
tain rules of Secretary of Treasury
concerning entry of vessels laden with
products of British North America
provinces R. S., s. 3129.

932 Appendix.

TITLE XXV.

INTERNAL REVENUE.

Chapter One. — Officers.

Internal-revenue officers making false
statement or failing to render state-
ment of fees R- S., s. 3158.

fR. S., s. 3167.

Internal-revenue officers disclosing op- \ 28 Aug., 1894, s. 34 ; 23 Stat.,
erations of manufacturers, etc. [ 557-

Internal-revenue officers or agents be-
coming interested in certain manu- f R. S., s. 3168.
factures i 1 Mar., 1879, s. 2; 20 Stat,

Certain offenses of internal-revenue [ 329.

officers: ,

fR. S., s. 3168.

Being guilty of extortion, etc., under \ 1 Mar., 1879, s. 2 ; 20 Stat.,

color of law l 329.

Demanding or receiving other or I R. S., s. 3168.
greater fees than those allowed by •{ 1 Mar., 1879, s. r ; 20 Stat.,

law I 329.

fR. S., s. 3168.
Neglecting to perform duties en- -j 1 Mar., 1879, s. 2 ; 20 Stat.,

joined by law I 329.

I R. S., s. 3168.
Conspiring of colluding to defraud •{ 1 Mar., 1879, s. 2 ; 20 Stat.,

the United States [ 329.

fR. S., s. 3168.
Making opportunity for person to -J 1 Mar., 1879, s. 2 ; 20 Stat.,

defraud the United States j 329.

fR. S., s. 3168.
Enabling other person to defraud -{ 1 Mar., 1879, s. 2 ; 20 Stat.,

the United States [ 329.

Permitting violation of law R. S., s. 3168.

1 Mar., 1879, s. 2; 20 Stat,
329.
f R. S., s. 3168.
Making false entry or signing false ^ i Mar., 1879, s. 2 ; 20 Stat,

certificate I 329.

y [ R. S., S. 3168.

Failing to report knowledge of vio- -j l Mar., 1879, s. 2; 20 Stat.,

~^ lation of revenue laws [ 329.

Collectors issuing stamps before collec-
tion of tax __1 Mar., 1879, s. 1 ; 20 Stat,

327.
District attorney demanding or accept-
ing anything for compromise of vio-
lation of internal-revenue laws R. S., s. 3170.

Chapter Two. — Assessments and collections.

Owner of premises refusing to admit f R. S., s. 3177.

revenue officers or interfering with j 1 Mar., 1879, s. 2 ; 20 Stat.,

same [ 329.

Making false return to collector R. S., s. 3179.

Appendix. 933

Chapter Three. — Special taxes.

Failing to display special-tax stamp in
place of business

Carrying on business as rectifier, liquor
dealer, etc., without payment of spec-
ial tax

6 June, 1896, s. 4; 29 Stat.,

R. S., s. 3239.

1 Oct., 1890, s. 26; 26 Stat,
618.
'R. S., ss. 3242, 3281.
8 Feb., 1875, s. 16; 18 Stat.,

310.
13 June, 1898, s. 36; 30 Stat.,
467.
Manufacturing oleomargarine without \ 2 Aug., 1886, s. 4 ; 24 Stat.,

payment of special tax } 209.

Manufacturing filled cheese without

payment of special tax ) 254.

Manufacturing adulterated or renovated ( 9 May, 1902, s. 4 ; 32 Stat.,

butter without payment of special tax. \ 195.
Officer collecting special tax for recti-
fying, etc., on premises less than 600
feet from distillery R. S., s. 3244.

Chapter Four. — Distilled spirits.

Adding substances to distilled spirits to

create fictitious proof R. S., s. 3252.

Evading tax on distilled spirits R S., s. 3256.

Distiller defrauding or attempting to de-
fraud United States of tax — R- S., s. 3257.

Failing to register stills — R- S., s. 3258.

Failing to give notice of intention to
carry on business of rectifier or dis-
tiller — R. S., s. 3259.

Distiller failing to give bond — R. S., s. 3260.

28 May, 1880, s. 1 ; 21 Stat,
145.

Collector approving bond before regul-
ations are complied with — R- S., s. 3261.

Setting up still without permit — R- S-, s. 3265.

Distilling on certain prohibited premises--^- S., s. 3266.
Breaking, etc., locks to cistern room, etc.— — R- S., s. 3268.

Failing to keep pipes at distilleries paint-
ed as directed R. S., s. 3269.

Building fence exceeding 5 feet in height
around distillery; refusing to furnish

key to officer R. S.. s. 3275.

f R. S., s. 3276.

Obstructing revenue officer from enter- -j 1 Mar., 1879, s. 5 ; 20 Stat,
ing distillery [ 335.

Refusing to facilitate examination by in- ( R. S., s. 3277.

ternal-revenue officer j 1 Mar., 1879 ; 20 Stat., 329.

Signs to be put up by distillers, rules
concerning, and penalties for viola-
tion — R. S., s. 3279.

Carrying grain, etc., to distillery where

there is no sign R. S., s. 3279.

f R. S., s. 3282.

Failing to give bond for carrying on dis- j 1 Mar., 1879, s. 5 ; 20 Stat.,
tillery [ 335.

Making and selling mash, wort, etc., at

unauthorized distillery R. S., s. 3283.

Manufacture of vinegar, regulations con-
cerning and penalties for violation R. S., s. 3283.

560.

28 Aug., 1894, s. 59 ; 28 Stat,
566.

R. S., s. 3297.

3 May, 1878; 20 Stat, 48.

934 Appendix.

Chapter Four — Distilled Spirits — Continued.

Using still in forbidden hours R. S., s. 3284.

Using material, etc., and removing spirits

in absence of storekeeper — R. S., s. 3284.

I" R. S., s. 3286.

Distiller refusing to draw off water and \ 1 Mar., 1879, s. 5 ; 20 Stat.,
clean worm tubs [ 335.

Gauger employing distiller, etc., to use

brands or perform his duties — R. S., s. 3290.

Gauger making false inspection, etc. — --R. S., s. 3292.

Removing or concealing spirits contrary

to law -R. S., s. 3296.

Transfer of spirits, etc., from one ware- 1 3 Mar., 1877, s. 7 ; 19 Stat,
house to another ; rules concerning, r 394.
and penalties for violation J

Removal of fruit brandy to special ware- f 3 Mar., 1877, s. 11 ; 19 Stat,
house ; rules concerning and penalties \ 395. 18 Oct., 1888 ; 25 Stat,
for violation

Removal of distilled spirits from dis-
tillery warehouse to general bonded
warehouse ; rules concerning, and pen-
alties for violation

Officers of scientific institutions using
alcohol withdrawn for scientific pur-
poses for other purposes

Removal of distilled spirits from dis-
tillery warehouse to sorghum fac-
tories ; rules concerning, and penalties
for violation -3 Mar., 1891; 26 Stat, 1050.

Reusing stamps or bottles and other vio- S 3 Mar., 1897, s. 6 ; 29 Stat.,
lations of law concerning same 1 627.

Forging or counterfeiting stamps --3 Mar., 1897, s. 7 ; 29 Stat.,

627.

Storekeeper removing, etc., packages or
contents before being stamped or with-
out permission of collector R. S., s. 3300.

Making false entries in books of store-
keeper or distiller --R- S., s. 3305.

Issuing false weights — R- S., s. 3306.

Using unregistered materials --R- S., s. 3306.

fR. S., s. 3310.

Carrying on business of distiller after \ 28 May, 1880, s. 7 ; 21 Stat.,
time fixed in notice of suspension [ 147.

Breaking, etc., any lock, seal, etc., to fur-
nace, still, etc. R. S., s. 3311.

Revenue officer using, etc., stamps con-
trary to law R. S., s. 3316.

f R. S., s. 3317.

Carrying on business of rectifier with in- \ 1 Mar., 1879, s. 5 ; 20 Stat.,
tent, etc., to defraud the United States. [ 339.

Rules concerning the keeping of books by f R. S., s. 3318.

rectifiers and distillers, and penalties I 1 Mar., 1879, s. 5; 20 Stat.,
for violation [ 339.

Purchasing more than twenty gallons of
distilled spirits from person other than
authorized rectifier R. S., s. 3319.

Rectifier or dealer refusing to make re-
turn of distilled spirits received and f R. S., s. 3323.
sent out {16 July, 1892; 27 Stat, 200.

Appendix. i)35

Chapter Four. — Distilled Spirits. — Continued.

Failing to efface and destroy stamps, etc.-_R. S., s. 3324.
Transportation company carrying empty

casks with uneffaced stamps . R. S., s. 3324.

Buying or selling empty casks having in-
spection marks — R- S., s. 3325.

Changing stamps; shifting spirits — R- S., s. 3326.

Affixing imitation stamps on packages of S 8 Feb., 1875, s. 17; 18 Stat.,

distilled spirits 1 311.

Removing distilled spirits during unlaw-
ful hours -R- S., s. 3327.

Counterfeiting, altering, or reusing

stamps on imitation wines — R. o., s. 3328.

Unlawfully using wine spirits, etc. --1 Oct., 1890, s. 44; 26 Stat.,

622.
Using wine spirits which have not been tax- > ! Oct., 1890, s. 48; 26 Stat.,

paid __1 623.

Fraudulently claiming drawback on dis-
tilled spirits — R S., s. 3330.

Relanding of distilled spirits --R- S., s. 3330.

Unlawful to use or sell alcohol with- 1 7 June, 1906, s. 2; 34 Stat.,
drawn for denaturing, for purposes r 217.
other than arts and industries J

Chapter Five. — Fermented Liquors.

Owner, etc., of brewery evading tax, etc.__R. S., s. 3340.

Books of brewer ; regulations concerning,

and penalties for violation R. S., s. 3340.

Brewer failing to affix and cancel stamps

on packages containing fermented liq- \ R. S.. s. 3342.

uor }3 Mar., 1875; 18 Stat., 484.

Affixing fraudulent stamp ( R. S., s. 3342.

{ 3 Mar., 1875 ; 18 Stat., 484.

Selling, removing, etc., fermented liquors
in packages without stamp, or with
false stamp, or with twice-used stamp R. S., s. 3343.

Withdrawing fermented liquor from
package without destroying or defac-
ing stamp R. S., s. 3344.

Removing lager beer from depot or

warehouse without affixing stamp R. S., s. 3345.

f R. S., s. 3346.

Making, using, etc., false stamp, die, or \ l Mar., 1879, s. 5 ; 20 Stat.,

permit ( 340.

f R. S., s. 3346.

Using stamp fraudulently \ l Mar., 1879, s. 5 ; 20 Stat.,

I 340.
Removing name of manufacturer on

package __R. S., s. 3349.

Person other than owner removing

stamp on package of fermented liquor — R. S., s. 3353.
Withdrawing fermented liquor from un- ] R. S., s. 3354.

stamped package for bottling, or un- [ 18 June, 1896 ; 26 Stat., 161.

lawfully bottling on brewery premises J

Chapter Six. — Tobacco, snuff, and opium.

fR. S., s 3355.
Tobacco manufacturer failing to procure { 1 Mar. 1879, s. 14; 20 Stat,
or post certificate [ 344.

936

Appendix.

Chapter Six. — Tobacco, snuff, and opium — Continued.

f R. S., s.
Tobacco or snuff manufacturer failing \ 1 Mar.,

to give bond [ 344.

Manufacturer failing to put up sign R. S., s.

Manufacturer failing to give annual in-
ventory — R. S., s.

f R. S., s.

Books of dealers in leaf tobacco; rules

concerning, and penalties for violation

Selling or offering for sale tobacco not

put up in packages and stamped

R. S., s. 3370.

S., s. 3372.

S.,

Oct.,
619

Purchasing tobacco or snuff not branded
or stamped R. S.,

Manufacturing tobacco on shares, or by
one person for another; rules con-
cerning, and penalties for violation __

Tobacco and snuff; rules governing the
removal and sale of, and penalties for
violation R.

Removing tobacco from manufactory or
offering for sale, etc., without stamp ___R.

Affixing false stamp, etc. __R.

Failing to destroy stamps on empty
packages R.

Selling packages of tobacco or snuff
having fraudulent stamp affixed R.

Importers of cigars and tobacco failing f R
to pay same tax as required of do- { 1
mestic manufacturers

Officer of customs permitting packages
of tobacco or snuff to pass from his
hands before the provisions of law
have been complied with

Failure of dealers in, manufacturers and S 5 Aug.,
peddlers of, tobacco to register

Retail dealer in leaf tobacco refusing to
keep books, or to furnish information ;
or making false entry, or false state-
ment, etc.

' R. S., s
1 Oct.,
618.
f R. S., s
\ 1 Mar.,
346.

Relanding tobacco, snuff, etc., shipped for \ R. S., s
exportation ] 8 Aug.,

Rules concerning tax on opium manu- 1 1 Oct.,
factured in United States, and who \ 621.
may engage in manufacture J

Rules governing the manufacture of

opium 1 Oct.,

620.

Rules concerning stamps to be affixed to \ 1 Oct.,
opium imported into United States 1 621.

3355.

1879; s.

20 Stat

3356.

3358.

. 3360.

1879, s.

14;

Stat

. 3363.

1890, s.

31;

Stat

S. 3366.

3374.
3375.

S., S. 3376.

S., s

Mar.,

346.

R. S., s

1 Mar.,

346.

111.

Aug.,
111.

3376.

3377.

1879, s. 14; 20

3377.
1879, s. 14; 20

Peddlers of tobacco failing to obtain and
exhibit certificate

Peddling tobacco unlawfully

Stat..

Stat.

1909, s. 35; 36 Stat.
1909, s. 35; 36 Stat.

. 3383.

1890, s. 29; 26 Stat.

. 3384.
1879, s. 15; 20 Stat.

. 3385.

1882; 22 Stat., 372.

1890, s. 36; 26 Stat.

1890, s. 37; 26 Stat.
1890, s. 38; 26 Stat.

Appendix. 937

Chapter Seven. — Cigars.

f R. S., s. 3387.

Manufacturing cigars without giving \ 1 Oct., 1890, s. 35 ; 26 Stat.,
bond [ 620.

Cigar manufacturer failing to display

sign R. S., s. 3388.

Annual inventory; rules governing, and

penalties for violation R. S., s. 3390.

fR. S., s. 3392.

Cigars ; rules relating to packing, and \ 1 Oct., 1890, s. 32 ; 26 Stat.,

penalties for violation I 619.

| R. S., s. 3393.

Manufacturer of cigars neglecting to -j 1 Mar., 1879, s. 16 ; 20 Stat.,
affix label to box ( 348.

Packages of tobacco, snuff, cigars, and f R. S., s. 3394.
cigarettes not to contain lottery, etc., \ 5 Aug., 1909, s. 33 ; 36 Stat.,

tickets [ 110.

| R. S., s. 3397.

Removing cigars from manufactory \ 1 Mar., 1879, s. 16 ; 20 Stat.,

without properly packing { 348.

| R. S., s. 3397.

Using counterfeit stamp, or making -j 1 Mar., 1879, s. 16 ; 20 Stat.,
fraudulent use of stamp I 348.

Cigars manufactured on shares, etc. ;
rules governing, and penalties for
violation R. S., s. 3399.

Forfeiture for selling cigars contrary to
law, or for false entry, or for affixing
forged stamp R. S., s. 3400.

Officer permitting imported cigars to
pass out of his hands without com-
pliance with law by the owner — R- S., s. 3402.

Selling imported cigars not packed ac-
cording to law R. S., s. 3403.

Purchasing, etc., cigars not branded or

stamped according to law --R- S., s. 3404.

Neglecting to destroy stamps on empty
boxes or disposing of boxes with un-
destroyed stamps R. S., s. 3406.

Chapter Eight. — Oleomargarine, adulterated
butter, and filled cheese.
Rules governing the packing and selling f 2 Aug., 1886, s. 6; 24 Stat,

of oleomargarine, and penalties for i 210.

violation

Manufacturer neglecting to affix label on f 2 Aug., 1886, s. 7 ; 24 Stat.,

package containing oleomargarine } 210.

Officers of customs permitting packages

of oleomargarine to pass out of his

hands before owner's compliance with

stamp regulations, etc.

Removing, defacing, etc., stamps, etc., \ 2 Aug., 1886, s. 15 ; 24 Stat

on packages of oleomargarine } 212.

Manufacturer of oleomargarine attempt-
ing to defraud United States of tax ) 212.

Purchasing, etc., oleomargarine not \ 2 Aug., 1886, s. 11 ; 24 Stat.,

branded, etc., according to law } 211.

Purchasing, etc., oleomargarine from

manufacturer who has not paid special }2 Aug., 1886, s. 12; 24 Stat.,

tax J 211.

2 Aug., 1886, s. 10; 24 Stat,
211.

'2 Aug., 1886, s. 17; 24 Stat,

938

Appendix.

Chapter Eight — Oleomargarine, adulterated
butter, and filled cheese — Continued.

Failing to destroy stamps on empty oleo- S
margarine packages }

Selling empty packages on which stamps S
are not destroyed }

Manufacturer of oleomargarine failing \
to comply with laws 1

Selling adulterated butter in other than \
original packages =

Manufacturer neglecting to affix specified
label on adulterated butter

Failing to label "Renovated" or "Pro-
cess" butter as such

Wholesale dealers in oleomargarine or
in adulterated or renovated butter
failing to keep books

Filled cheese; rules for packing and re-
tailing and penalties for violation

Dealers in filled cheese neglecting to dis-
play sign

Manufacturer of filled cheese neglecting
to affix label

Purchasing filled cheese not branded or
stamped

Purchasing filled cheese from manufac-
turer who has not paid special tax

Failing to destroy stamps on empty pack-
ages of filled cheese

Notices, inventories, books, to be kept by
manufacturers of oleomargarine, adul-
terated butter, and filled cheese ; rules
concerning.and penalties for violation _

2 Aug., 1886, s. 13 ; 24 Stat.,

211.
2 Aug., 1886, s. 13; 24 Stat.,

211.
2 Aug., 1886, s. 12; 24 Stat,

212.
9 May, 1902, s. 4; 32 Stat,

195.
9 May, 1902, s. 4; 32 Stat,

195.
9 May, 1902, s. 5; 32 Stat,

197.

1 Oct, 1890, s. 41; 26 Stat,
621.

9 May, 1902, s. 6; 32 Stat,

197.
6 June, 1896, s. 6; 29 Stat.,

254.
6 June, 1896, s. 7; 29 Stat,
\ 255.
6 June, 1896, s. 8; 29 Stat,

255.
6 June, 1896, s. 12 ; 29 Stat,

256.
. 6 June, 1896, s. 13 ; 29 Stat.,

256.
6 June, 1896, s. 14; 29 Stat,

256.

2 Aug., 1886, s. 5; 24 Stat,
210.

6 June, 1896, s. 5; 29 Stat.,

254.
9 May, 1902, s. 14; 32 Stat,

195.

Chapter Nine. — Mixed flour.

Neglecting to brand, etc., packages of f

mixed flour }

Mixed flour; rules governing the put-]

ting up and retailing of, and penalties

for violation

Manufacturer of mixed flour neglecting \

to affix label and notice }

Mixed flour ; rules for packing in bar- j

rels, etc., and penalties for violation. )
Purchasing, etc., mixed flour that has (

not been branded, etc. )

Purchasing mixed flour from maker, (

etc., who has not paid special tax }

Exporter of mixed flour subject to j

same provisions as maker, etc. }

Penalty for second offense of violation \

of laws concerning mixed flour }

Chapter Ten. — Banks and bankers.

Uanker neglecting to make monthly re-
turn

13 June,

467.
13 June,

468.

13 June,

468.
13 June,

469.
13 June,

470.

1898, s.
1898, s.

1898, s.
1898, s.
1898, s.
1898, s.
1898, s.
1898, s.

37; 30 Stat.,
38; 30 Stat,

39 ; 30 Stat..
40 ; 30 Stat.,
42; 30 Stat.
43; 30 Stat,
44; 30 Stat,
48; 30 Stat,

R. S., s. 3415.

Appendix. 939

Chapter Eleven. — Corporations.

Revenue officer, etc., divulging informa- ] 5 Aug., 1909, s. 38 ; 36 Stat,
tion obtained in discharge of duty in [• 11G.
collection of corporation tax J

Chapter Twelve. — Playing cards.

Tax stamps on playing cards ; rules gov- S 28 Aug. 1894, s. 39 ; 28 Stat,

erning and penalties for violation } 560.

Manufacturer of playing cards failing (28 Aug., 1894, s. 40; 28 Stat.,

to register } 560.

Selling, etc., playing cards without affix- \ 28 Aug., 1894, s. 43 ; 28 Stat.,

ing stamp ) 562.

Removing stamp from playing cards, or ) 28 Aug., 1894, s. 44 ; 28 Stat.,

fraudulently using stamp } 562.

Selling, etc., or concealing, etc., play- f 28 Aug., 1894, s. 45 ; 28 Stat.,

ing cards without stamps ) 562.

Manufacturing of playing cards failing ( 28 Aug., 1894, s. 46 ; 28 Stat.,

to pay tax { 562.

Chapter Thirteen. — Provisions common to
several objects of taxation.
Distillers, etc., and manufacturers of to-
bacco, etc., failing to do things re-
quired, and doing things forbidden by
law __R. S., s. 3456.

f 24 July, 1897, s. 10; 30 Stat.,
Inclosing lottery tickets, etc., in pack- 206.

ages of tobacco, etc. \ 1 Julv, 1902, s. 2 ; 32 Stat.,

Fraudulently claiming drawback __R §. s. 3443.

8 Feb., 1875, s. 25; 18 Stat.,

312
Removing liquor or wines under other

than trade names r g s 3449

Removing, concealing, etc., articles with

intent to evade United States tax __ __R. S., s. 3450.

Fraudulently executing documents re-
quired by internal-revenue law __R. S., s. 3451.

Having property in possession with in-
tent to sell in fraud of law, or to
evade taxes _ R. S., s. 3452.

Selling, purchasing, etc., empty stamped

packages _ R. S., s. 3455.

Manufacturing boxes, barrels, etc., un-
lawfully stamped R. S., s. 3455.

Forging or counterfeiting stamps, dies, f R. S., s. 3429.

or plates ; using forged or counter- j 1 Mar., 1879, s. 17 ; 20 Stat.,

f eited stamps, dies, or plates ; cutting, I 349.

tearing, etc., impression of stamp, die, -{ 28 Aug., 1894, s. 42 ; 28 Stat.,

or plate, or fraudulently using same; I 561.

having stamps, dies, or plates in pos- | 13 June, 1898, s. 8 ; 30 Stat,

session unlawfully [ 452.

TITLE XXVIII.

NATIONAL BANKS.

Chapter One. — Organisation and pozvers.
Using word "National" as part of cor-
porate name without authority R. S., s. 5243.

940 Appendix.

Chapter Tzvo. — Circulating notes.

Issuing circulating notes to unauthorized

association R. S., s. 5187.

Chapter Three. — Regulation of the banking
business.
Holding United States notes as collateral-.R. S., s. 5207.

Falsely certifying checks 12 July, 1882, s. 13; 22 Stat,

1G6.

Embezzlement, etc. R. S., s. 5209.

Failing to make report of dividends R. S., s. 5213.

Failing to make half-yearly return of

circulation R. S., s. 5215.

TITLE XXIX.

THE PUBLIC MONEYS.

Chapter One. — Custody.

Assistant treasurers accepting commis-
sions or other perquisites R. S., s. 3597.

Clerk acting as assistant treasurer sub-
ject to same penalties R. S., s. 3613.

Withholding moneys due the United

States R. S., s. 3619.

TITLE XXX.

THE PUBLIC DEBT.

Counterfeiting, etc., certificates of indebted- \ 13 June, 1898, s. 32 ; 30 Stat.,
ness I 466.

TITLE XXXI.

DEBTS AND CLAIMS.

Chapter One. — Collection and payment.

Making false claim against Government — R. S., s. 3490.

TITLE XXXII.

PUBLIC CONTRACTS.

Officer making contract failing to make re-
turn thereof R. S., s. 3746.

Employees of United States having interest \ 22 June, 1874, s. 10; 18 Stat,
in Indian contracts, etc. 1 177.

TITLE XXXIV.

THE PUBLIC HEALTH AND MARINE-HOSPITAL SERVICE.

Chapter Tzvo. — Sanitation and quarantine.

Vessel from foreign port entering port S 15 Feb., 1893, s. 1 ; 27 Stat.,

in violation of quarantine law ) 449.

Vessel from foreign port to secure bill \ 15 Feb., 1893, s. 2 ; 27 Stat.,
of health before sailing ^ 450.

Appendix. 941

Chapter Tivo. — Sanitation and quarantine — Continued.

19 June, 1906, s. 4 ; 34 Stat,
300.

19 June, 1906, s. i ; 34 Stat,
300.

Vessel or person entering within limits of
quarantine grounds or stations or de-
parting therefrom without permission _

Owner or master of vessel violating rule
regulating inspection of vessels or
making false statement as to sanitary
conditions of vessel

Person trespassing on quarantine reser-
vation or vessel entering in violation
of quarantine 1 Aug., 1888; 25 Stat, 355.

Violating regulation for suppressing con- f 27 Mar.. 1890, s. 1 ; 26 Stat,
tagious diseases \ 31.

Quarantine officer or person employed in 1 27 Mar., 1890, s. 2 ; 26 Stat,
service violating regulation for pre- \ 31.
venting spread of contagious disease _ I

Common carrier or officer or agent there- ] 27 Mar., 1890, s. 3 ; 26 Stat.,
of violating quarantine law or regu- \ 32.
lation J

TITLE XXXVII.

FOREIGN RELATIONS.

Violating safe-conduct or assaulting public

minister R. S., s. 4062.

Suing out writ or process, etc., against

public minister R. S., s. 4064.

Failing to appear or refusing to testify in

suit pending in foreign country R. S., s. 4073.

f R. S., s. 4078.

Issuing false passport, etc. \ 14 June, 1902, s. 3; 32 Stat.,

[ 386.
Murder, and insurrection against certain

countries R. S., s. 4102.

TITLE XXXVIII.

INDIANS.

Chapter One. — Officers and agencies.

Indian agent making false entry in books,

or failing to keep books' etc. 3 Mar., 1909; 35 Stat., 784.

Employees in Indian affairs trading with

Indians R. S., s. 2078.

Chapter Two. — Performance of treaty ob-
ligations.
Receiving money from Indians under
prohibited contracts R. S., s. 2105.

Chapter Three. — Government and protection.

Sending seditious message to Indians R. S., s. 2111.

Carrying seditious message to Indians R. S., s. 2112.

Corresponding with foreign nations to

incite Indians to war R. S., s. 2113.

Attempting to negotiate treat., with In-
dians without authority R. S., s. 5394.

Driving stock to feed on Indian lands R. S., s. 2117.

Settling on or surveying Indian lands R. S., s. 2118.

942 Appendix.

Chapter Four. — Government of Indian coun-
tries.
Purchasing cattle of Indian? without

consent of agent 4 July. 1884; 23 Stat., 94.

Residing in Indian Country as trader \ R. S., s. 2133.

without a license {31 July, 1882; 22 Stat, 179.

Foreigner going into Indian country

without passport R. S., s. 2134.

Purchasing certain prohibited articles

from Indians R- S., s. 2135.

Hunting on Indian lands R. S., s. 2137.

Removing cattle, etc., from Indian

country — R- S., s. 2138.

Selling intoxicating liquors to Indians __ __R. S.: s. 2139.

30 Jan., 1897; 29 Stat, 506
Operating a distillery in Indian country ___R. S., s. 2141.
Assaulting an Indian or other person __ __R. S., s. 2142.

Arson in Indian country -— __R. S., s. 2143.

Forgery and mail depredations in Indian

country R. S., s. 2144.

Returning to Indian country after re-
moval R- S., s. 2148.

TITLE XXXIX.

PATENTS.
Falsely marking, etc., articles as patented R. S., s. 4901.

TITLE XLI.

COPYRIGHTS.

Failure of proprietor of copyright to deposit] 4 Mar., 1909, s. 13; 35 Stat.

with Register of Copyrights copies of \ 1078.

copyrighted words J

Making false affidavit, etc., for purpose of J 4 Mar., 1909, s. 17 ; 35 Stat.,

obtaining registration of copyright { 1079.

Willfully infringing copyright for profit _4 Mar., 1909, s. 28; 35 Stat,

1082.
Fraudulently giving notice of copyright upon ] 4 Mar., 1909, s. 29 ; 35 Stat.

uncopyrighted article, or knowingly issuing \ 1082.

or selling article bearing such false notice. J

TITLE X L I I .

PENSIONS.

Chapter One. — Wars prior to eighteen hun-
dred and sixtv-one.
Making false oath concerning Indian { 27 July, 1892. s. 3 ; 27 Stat..

war pensions I 282.

Chapter Fire. — Applications and attorneys.

Making false affidavits, certificates, J R- S., s. 4746.

vouchers, etc. -_. I 7 July, 1898 > 30 Stat, 718.

f 27 June, 1890, s. 4; 26 Stat.,

Attorney or agent charging unlawful fee | 183.

or withholding pension from pen- j 19 Apr., 1908, s. 3 ; 35 Stat.,
sioner I 64.

Appendix. 943

Chapter Five. — Applications and attorneys — ■Continued.
Agent or attorney charging unlawful fee

for securing increase of pension 3 Mar., 1891 ; 2G Stat., 1082.

Charging excessive fees in pension or -
bounty land cases

Receiving compensation for securing
legislation

R. S., s. 5485.

4 July, 1884, s. 4; 23 Stat.,

101.
10 Mar., 1902; 32 Stat., 62.
24 Apr., 1906; 34 Stat., 133.
28 May, 1908, s. 1 ; 35 Stat..
419.
Claiming fee, etc., for securing pension

for army nurse 5 Aug., 1892; 27 Stat, 349.

Chapter Eight. — General provisions.

Guardian, etc., embezzling pension of

ward R. S., ss. 4783, 5486.

10 Feb., 1891; 26 Stat, 746.
Claim agents withholding discharge pa-
pers without consent 21 May, 1872; 17 Stat, 137.

TITLE XLIV.

TERRITORIES AND INSULAR POSSESSIONS.

Chapter One. — Provisions common to all the
Territories.
Owners of coal mines failing to comply 1 3 Mar., 1891, s. 7 ; 26 Stat,
with regulations concerning machinery, \ 1105.

ventilation, etc. J

Employing children in mines 3 Mar., 1891, s. 12; 26 Stat,

1105.
Chapter Tzvo. — New Mexico, Arizona and
Oklahoma.
Railroads failing to have stations at town \ 8 Aug., 1894, ss. 1, 2 ; 28 Stat,
sites I 263.

Chapter Three. — Alaska.

Clerk of court failing to account for J 6 June, 1900, s. 16 ; 31 Stat,

fees received ( 328.

Person appointed road overseer refusing

to serve 27 Apr., 1904; 33 Stat, 392.

Road overseer failing to deliver records,

etc., to successor 27 Apr., 1904; 33 Stat, 392.

Persons failing to work on roads, etc. 27 Apr., 1904; 33 Stat, 392

Persons refusing to do reasonable day's

work, etc. 27 Apr., 1904; 33 Stat, 393.

Road overseer failing to perform duties 27 Apr., 1904 ; 33 Stat, 393.

Chapter Six. — The Philippine Islands.

Employing slave labor _• 1 July, 1902. s. 74; 32 Stat,

709.

TITLE XLV.

RIVERS AND HARBORS.

Chapter One. — Improvements.

Failing to furnish shipping statistics to
persons in charge of harbor works 8 Feb., 1891; 26 Stat., 766

944

Appendix.

Chapter Two. — Obstructions to navigation.
Regulations concerning the construction
of bridges, wharves, etc., and penalties
for violation

Violating rules of Secretary of War
concerning dumping of refuse in navi-
gable waters

Depositing refuse in navigable waters ;
obstructing channels, etc.

Rules concerning drawbridges, and pen-
alties for violation

Rules concerning the use of canals, and
penalties for violation

Rules concerning floating timber and
logs, and penalties for violation

Chapter Three. — Provisions applicable to
particular rivers, harbors, and
canals.

Violating rules for protecting South
Pass, Mississippi River

Violating rules for protecting reservoirs
at headwaters of Mississippi River __-

3 Mar., 1899, s. 12; 30 Stat,
1151.

20 Feb., 1900; 31 Stat., 32.
( 19 Sept., 1890, s. 6 ; 26 Stat,
j 453.

18 Aug., 1894, ss. 6, 7, 8; 28

Stat, 363.
3 Mar., 1899, s. 13; 30 Stat,
1152.
S 3" Mar., 1899, s. 16 ; 30 Stat,
( 1153.
18 Aug., 1S94, s. 5; 28 Stat,

362.
13 June, 1902, s. 6 ; 32 Stat,

374.
18 Aug., 1894, s. 4; 28 Stat.

362.
13 June, 1902, s. 11; 32 Stat,
374.
[9 May, 1900, s. 2 ; 31 Stat,
( 172.

Violating regulations for protecting cer-
tain anchorage grounds

Violating regulations for anchorage of
vessels in St. Marys River

Refusing to obey instructions of harbor-
master at Washington, D. C.

Depositing refuse, etc., in Potomac River-

Willful violation of regulations for navi-
gation of South and Southwest passes
of Mississippi River

Chapter Four. — New York Harbor

Depositing refuse in New York Harbor.

Master, etc., of vessel, towing scow, etc.,
loaded with refuse

Moving scow, etc., loaded with refuse
without permit

' 11 Aug., 1888, s. 5 ; 25 Stat,
424.
19 Sept, 1890, s. 3; 26 Stat,
452.

11 Aug., 1888; 25 Stat, 419.
'16 May, 1888, s. 2; 25 Stat,

151.
6 Feb., 1893, s. 2; 27 Stat,
•I 431.
6 June, 1900, s. 2; 31 Stat,

682.
' 6 Mar., 1896, s. 3 ; 29 Stat, 54.
-j 26 Apr., 1906, s. 1 ; 34 Stat,
[ 136.

S 2 Mar., 1895, s. 2; 28 Stat,
( 741.
-19 May, 1896, s. 3 ; 29 Stat.

127.
1 3 Mar., 1909, s. 5 ; 35 Stat,
]■ 818.

29 June, ±888, s. 1 ; 25 Stat,

209.
29 June, 1888, s. 2 ; 25 Stat.,

209.
'29 June, 1888, s. 3 ; 25 Stat.

209.
18 Aug., 1894, s. 3; 28 Stat,

.'.60.

Appendix.

945

Chapter Four — New York Harbor — Continued.

'29 June, 1888, s. 3; 25 Stat,
209.
18 Aug., 1894, s. 3; 28 Stat,
361.

28 May, 1908, s. 3 ; 35 Stat.
426.

29 June, 1888, s. 3 ; 25 Stat.
209.

18 Aug., 1894, s. 3; 28 Stat,

362.
28 June, 1888, s. 3; 25 Stat,

209.
18 Aug., 1894, s. 3; 28 Stat,
362.
Violating rules concerning disposition f 28 June, 1883, s. 4; 25 Stat,

of dredged matter \ 209.

Fishing for shellfish, or interfering ) 18 Aug., 1894, s. 2 ; 28 Stat.,
with navigation in New York Harbor ( 360.

Chapter Six. — California Debris Commission.

Injuring, etc., any dam or work erected] 1 Mar., 1893, s. 22; 27 Stat.,

under the provisions of this title and > 510.

chapter J

Mining by hydraulic process so as to in- j 1 Mar., 1893, s. 22; 27 Stat.,

jure navigable waters \ 510.

Dumping refuse, etc., in other place than
specified in permit

Bribing inspector

Failing to indorse and return permit

TITLE XLVI.

THE POSTAL SERVICE.

Chapter Tzvo. — City, rural, and immediate
delivery.
Special-delivery messenger deemed post- 1 4 Aug., 1886, s. 4 ;
al employee and to be subject to same > 221.

penalties J 3 Mar., 1903, s. 4;

1176.

24 Stat.,
32 Stat.,

Chapter Eight. — Carrying the mail.

Surety on bond of bidder for carrying 1 R. S., s. 3964.
the mail willfully swearing falsely __ \ 11 Aug., 1876, s. 246; 19 Stat.,

J 129.
Combining to prevent bids for carrying

the mail R. S., s. 3950.

TITLE X L V I I .

COMMERCE AND NAVIGATION.

Chapter One. — Registry and recording.

Master making false oath to secure regis-
tration of vessel R. S., s. 4144.

Failing to deliver up certificate when re- f R. S., s. 4146.

quired -j 16 Jan., 1895, s. 2;

I 624.
Failing to have tonnage number marked f R. S., s. 4153.

on vessel, etc. \ 19 June, 1886, s. 5:

I 81.
60

28 Stat

24 Stat,

946 Appendix.

Chapter One — Registry and recording — Continued.
Failing to provide space for crew in

vessel _ 3 May, 1897, s. 2; 29 Stat.,

Failing to surrender certificate granted 743.

purchaser _ __R. S., s. 4160.

Failing to surrender certificate granted

agent _ __R. S., s. 4162.

Failing to surrender certificate obtained

upon loss of original __R. S., s. 4168.

Failing to register anew when required__R. S., s. 4169.
Failing to report change of master __R. S., s. 4171.

iR. S.' s. 4177.
19 June, 1886, s. 6; 24 Stat..
81.
R. S., s. 4178.
20 Jan., 1897, s. 1 ; 29 Stat.,
491.
Making lalse register, certihcate of reg-
istry, or giving false information as

to description of vessel, etc. __R. S., s. 4187.

Officers neglecting duties R. S., s. 4188.

Making or using forged sea letters, pass-
ports, certificates of registry, etc. R. S., s. 4191.

Chapter Two. — Clearance and entry.

Vessel departing from foreign port
without delivering manifest and ob-
taining clearance R. S., s. 4197.

Master of foreign vessel failing to de-
posit papers with consul, etc., on ar-
rival ____ __R. S., s. 4209.

Foreign consul delivering papers to mas-
ter before clearance R. S., s. 4211.

f R. S., s. 4213.

Master failing to furnish statement to \ 26 June, 1884, s. 13 ; 23 Stat.,
collector of services rendered by consul [ 56.

] R. S., s. 4146.

Pleasure yachts, etc., engaging in trade, \ 16 Jan., 1893, ss. 4-6 ; 28 Stats ,
and otherwise violating laws J 625.

Chapter Four. — Emigrant vessels.

Rules concerning compartments for emi- £ 2 Aug., 1882, s. 1 ; 22 Stat,

grants, and penalties for violation S 186.

Rules and regulations concerning berths

for emigrants, and penalties for viola- S 2 Aug., 1882, s. 2 ; 22 Stat.,

tion I 186.

Rules concerning ventilation, hygiene, ] 2 Aug., 1882, s. 3; 22 Stat.

etc., of passenger decks, and penalties [ 187.

for violation J

Rules governing food, meals, etc., and S 2 Aug., 1882, s. 4 ; 22 Stat..

penalties for violation ( 188.

Rules concerning hospital compartment, | 2 Aug., 1882, s. 5 ; 22 Stat,

surgeon, medicines, etc., and penalties [ 188.

for violation j

Rules concerning discipline and cleanli- ( 2 Aug., 1882, s. 6; 22 Stat.,

liness, and penalties for violation ( 188.

Officers, seamen, etc., visiting passengers | 2 Aug., 1882, s. 7; 22 Stat.

apartments / 189.

Rules for carrying explosives, horses and ) 2 Aug., 1882, s. 8 ; 22 Stat,

cattle, etc., and penalties for violation _ \ 189.

Appendix. 947

Chapter Four. — Emigrant vessels — Continued.

f2 Aug., 1882, s. 19; 22 Stat,
Master permitting the board of vessel
by other than specified persons

189.
31 Mar., 1900, ss. 1, 2; 31

Stat., 58.
2 Aug., 1882, s. 9; 22 Stat,
Rules of Secretary of Commerce and 189.

Labor concerning boarding of vessels, \ 31 Mar., 1900, ss. 1, 2; 31

and penalties for violation ( Stat., 58.

Master refusing to pay ten dollars in J 2 Aug., 1882, s. 10; 22 Stat.,

each case of death at sea \ 190.

Vessel leaving port before being duly | 2 Aug., 1882, s. 12 ; 22 Stat.,
cleared by collector | 190.

Chapter Five. — Liability of vessels.

Shipping inflammable material in vessel R. S., s. 4288.

Inserting in bill of lading, etc., clause { 13 Feb., 1893, ss. 1, 7 ; 27
relieving from liability { Stat, 445.

Inserting covenants in bill of lading, etc., } 13 Feb., 1893, s. 2 ; 27 Stat,
avoiding exercise of due diligence } 445.

Rules concerning bills of lading, and j 13 Feb., 1893, ss. 4, 7 ; 27
penalties for violation \ Stats., 445.

Refusing to issue bill of lading on de-
mand 13 Feb., 1893, s. 5; 27 Stat,

446.

Chapter Six. — Log books.

Neglecting to keep up log book in man-
ner required, or making entry more
than 24 hours after arrivals, etc. R. S., s. 4292.

Chapter Nine. — Vessels engaged in foreign
commerce.

Vessel departing without passport R. S., s. 4307.

Master failing to deposit ship's papers with

consul R. S., s. 4310.

Chapter Ten. — Vessel engaged in domestic
commerce.

Rules for exchange of enrollment and
register when vessel in another dis-
trict, and penalty for violation R. S., s. 4323.

f R. S., s. 4325.

Master failing to deliver license at ex- { 24 Apr., 1906, s. 2 ; 34 Stat,

piration [ 136.

f R. S., s. 4334.

Owner failing to have name of vessel \ 26 June, 1884, s. 21 ; 23 Stat.,
painted on stern [ 58.

New master failing to report change of

master __ _-__R. S., s. 4335.

Master not exhibiting enrollment or li-
cense when required

Foreign vessels transporting passengers ._R. S., s. 4336.
between United States ports S 1~ Feb., 1898, s. 2; 30 Stat.,

Foreign vessels carrying passengers be- \ 248.
tween United States and Philippines _ ] 30 Apr., 1906, s. 2 ; 34 Stat.,

Vessel departing without having left du- | 154.
plicate manifest of lading; master
liable R. S., s. 4350.

948 Appendix.

Chapter Ten — Vessel engaged in domestic
commerce — Continued.

Master of vessel containing certain goods
failing to deliver up manifest before
unlading, etc. ___ __R. S., s. 4352.

Vessel proceeding without manifest and

permit; master liable __R. S., s. 4354.

Master of vessel under twenty tons fail-
ing to deliver up manifest R. S., s. 4356.

Master of vessel failing to exhibit mani-
fest on arrival ; additional penalty if
distilled spirits on board ; refusing to
answer interrogatories truly __R. S., s. 4360.

Refusing to deliver up permit for mer-
chandise to be transported inland, etc R. S., s. 4363.

Fishing vessels, permitted to land at for-
eign ports, failing to deliver mani-
fests and entries R. S., s. 4364.

Master neglecting to report when vessel
puts into port other than destination R. S., s. 4366.

Master of foreign vessel bound coast-
wise failing to deliver duplicate mani-
fests, etc. ; refusing to swear to ver-
ity of manifest, etc. __R. S., s. 4367.

Master of foreign vessel bound coast-
wise failing to deliver manifest to col-
lector on arrival ; failing to swear to
verity of manifest; failing to deliver
permit __R. S., s. 4368.

Vessel entitled to do documented trading ( 19 June, 1886, s. 7 ; 24 Stat.,
without a license ( 81.

Making illegal enrollment or license;
giving false information as to vessel
to be enrolled or licensed R. S., s. 4373.

Failing or refusing to perform duties
prescribed by this chapter R. S., s. 4374.

Forging or altering enrollment, license,
etc. R. S., s. 4375.

Obstructing officers R. S., s. 4376.

Chapter Eleven. — Vessels engaged in fisheries.
Fisherman deserting or absconding him-
self from vessel R. S., s. 4392.

Chapter Tzuelve. — Inspection of steam vessels.

Inspection of sea-going barges ; require- 1 28 May, 1908, ss. 10-13 ; 35
ments before registry ; penalty for r Stat., 428.

violation, etc. J

f R. S., s. 4413.
Pilot, mate, or master, etc., violating j 7 June, 1897, s. 5 ; 30 Stat,
regulations relating to passing of vessels I 103.

[ R. S., s. 4416.
Inspector serving without specified quali- \ 3 Mar., 1905, s. 2 ; 33 Stat.,

fications [ 1029.

Carry passengers and gunpowder con-
trary to law R. S., s. 4424.

Inspector certifying falsely touching

steam vessels R. S., s. 4425.

Iimproperly constructing boilers S R- S., s. 4429.

( 7 Aug., 1882; 22 Stat., 310.

Appendix. 949

Chapter Twelve. — Inspection of steam vessels — Continued.
Affixing fraudulent, etc., stamp to boiler S R- S., s. 4430.

plate {22 Jan., 1894; 28 Stat., 28.

Counterfeiting stamps prescribed for
boiler iron or steel plates ; falsely

marking iron or steel plates R. S., s. 4432.

Obstructing safety valve, etc. R. S., s. 4437.

R. S., s. 4438.
Employing certain persons who are not 25 Jan., 1907 ; 34 Stat., 864.

licensed by inspectors \ 28 May, 1908, s. 2; 35 Stat.,

425.
Making false oath ; changing certificate _ ( R. S., s. 4445.

23 Mar., 1900; 31 Stat., 50.
Neglecting to place license where it can \ R. S., s. 4446.

be seen {19 Feb., 1907; 34 Stat, 897.

Navigating vessel after notice to make

repairs R. S., s. 4454.

Chapter Thirteen. — Transportation of passengers and merchandise.

fR. S., s. 4463.
Navigating vessel with less than requir- \ 2 Apr., 1908, s. 1; 35 Stat,
ed number of licensed officers and men [ 55.

Violating rules governing regattas or C 28 Apr., 1908, s. 4 ; 35 Stat,

marine parades { 69.

fR. S.. s. 4468.

Failing to keep passenger list \ 28 May, 1908, s. 4; 35 Stat.,

[ 425.

Unlawfully carrying cotton or hemp _-__R. S., s. 4473.

Rules concerning use of petroleum as ( R. S., s. 4474. 18 Oct., 1888 ;
fuel and penalties for violation } 25 Stat, 564.

Shipping or attempting to ship danger-
ous articles not duly marked or packed__R. S., s. 4476.

Failing to provide proper stairways — __R. S., s. 4484.

Failure to keep sufficient watchmen on
vessel to guard against fire and other
dangers __R. S., s. 4478.

Overcrowding or occupying passenger

space with freight, etc. _ __R. S., s. 4485.

Manufacturing or selling, etc., life-pre-"|

servers unlawfully _ constructed ; manu- \ R. S., s. 4488. 3 Mar., 1905,
facturing or selling, etc., inefficient | s. 3; 33 Stat, 1024.

life-preservers, etc. J

fR. S., s. 4489. 2 Mar., 1889,

Owner neglecting or refusing to carry \ s. 2 ; 25 Stat., 1012. 11
life-boats, rafts, life-preservers, etc. _ [ Apr., 1892; 27 Stat., 16.

Barges carrying passengers failing to

have fire buckets, axes, etc. _ — __R. S., s. 4492.

Failing to keep on board and to deliver
to passengers requesting same, copies
of chapters twelve and thirteen of
this title -R. S., s. 4494.

Failing to keep name of steam vessel

painted in designated places __R. S., s. 4495.

Customs officer negligently or intention-
ally failing to require name of vessel
to be placed on pilot house or wheel-
house R- S., s. 4497.

950 Appendix.

Chapter Thirteen — Transportation of pas-
sengers and merchandise. — Continued.
Persons, etc., owning, etc., steam ves- f R. S., s. 4499.

sels failing to comply with terms of \ 3 Mar., 1905, s. 4 ; 33 Stat.,

chapter of this title [ 1025.

Penalty for violating any of the pro-
visions of chapters twelve and thir-
teen of this title, not otherwise spe-
cifically provided for R. S., s. 4500.

Chapter Fourteen. — Rules of navigation.
Rules for the prevention of collisions on

inland waters, and penalty for viola- \ 7 June, 1897, s. 3 ; 30 Stat,

tion _ I 102.

Rules to be established by supervising ( 7 June, 1897, s. 2 ; 30 Stat.,

inspectors, and penalty for violation \ 102.
Rules for the prevention of collisions ] 7 June, 1897, s. 4 ; 30 Stat,

on inland waters, and penalty against I* 103.

vessel for violation J

Rules to prevent collisions on the Great { 8 Feb., 1895, s. 2; 28 Stat.,

Lakes, and penalties for violation ) 649.

Owners, agents, etc., failing to report S 20 June, 1874, s. 10 ; 18 Stat.,

accidents to collectors of customs 1 128.

Owner, etc., failing to report probable S 20 June, 1874, s. 11 ; 18 Stat.,

loss of vessel, etc. } 128.

f 19 Feb., 1895, s. 3 ; 28 Stat.,
Navigating vessel without proper signal \ 672 ; 7 June, 1897, s. 5 ; 30,

lights _ [ Stat. 103.

Failing to render assistance to vessel in S 4 Sept., 1890, s. 2 ; 26 Stat.,

distress _ { 425.

Chapter Fifteen. — Reciprocal privileges.

Opposing an officer of the United States
in enforcing certain rules concerning
foreign vessels that have violated proc- i
lamation [

Persons of British North America vi-
olating rules and proclamations of
President concerning fishing rights in
American waters 3 Mar., 1887; 24 Stat, 475

TITLE XL VIII.

MERCHANT SEAMAN.

Chapter One. — Shipping commissioners.

Unauthorized person acting as shipping

commissioner _ R. S., s. 4504.

Rules concerning indenture of appren-
tices and penalties for violation R. S., s. 4510.

Vessel carrying person to sea as one of

crew without agreement -_R. S., s. 4514.

Master engaging seamen contrary to

law _ __R. S., s. 4515.

Master engaging seamen in foreign port
without complying with provisions of
law R. S., s. 4518.

Master failing to post copy of shipping

agreement R. S., s. 4519.

Master shipping seamen without articles— R. S., s. 4521.

Shipping commissioner, etc., taking un-
lawful fees R. S., s. 4595.

19 June, 1886, s. 17; 24 Stat,

82.

Appendix. 951

Chapter Tivo. — Wages and effects.

[21 Dec, 1898, s. 24; 30 Stat,

Paying seamen advance wages < 763.

I 26 Apr., 1904; 33 Stat, 308.
[ 21 Dec., 1898, s. 24; 30 Stat,
Demanding, etc., remuneration for pro- < 763.

viding seaman without employment _ [ 26 Apr., 1904 ; 33 Stat, 308.
Falsely claiming to be relative of sea-
man _ 21 Dec, 1898, s. 24; 30 Stat,

763.
Master failing to take charge and ac-
count for deceased seaman's effects — R. S., s. 4050.

Shipping commissioner failing to deliver
deceased seaman's effects to district
court _ R- S., s. 4543.

Chapter Three. — Discharge.

Master discharging seaman in manner

other than that provided by law R. S., s. 4549.

Master failing to deliver account of

wages to discharged seaman or ship-
ping commissioner R. S., s. 4550.

Master failing to give discharged sea-
man certificate of discharge R. S., s. 4551.

Chapter Four. — Protection and relief.

Owner, master, etc., failing to appear or

to produce books, etc., before shipping

commissioner _ R. S., s. 4555.

Master failing to apply for surveyors f R. S., s. 4550.

upon complaint that ship is unsea- \ 21 Dec, 1898, s. 7 ; 30 Stat.,

worthy _ [ 757.

f R. S., s. 4561.
Sending, etc., an American ship to sea i 21 Dec, 1898, s. 11 ; 30 Stat.,

in an unseaworthy condition [ 758.

Master failing to pay charges of in-
spection and wages R. S., s. 4563.

f R. S., s. 4564.
Master or owner failing to provide suf- j 21 Dec, 1898, s. 12 ; 30 Stat.,
ficicnt quantity of stores [ 759.

Master failing to provide suitable pro-
visions and water, after complaint R. S., s. 4565.

Master refusing seaman permission to

go ashore to make complaint R. S., s. 4567.

'26 June, 1884, s. 11; 23 Stat,

Owner failing to provide vessel with
slop chest

56.
19 June, 1886, s. 13; 24 Stat,
82.

Owner or master failing to provide ves-
sel with medicines, etc. R. S., s. 4570.

Master neglecting to serve out lime
juice, etc R S., s. 4570.

Master failing to keep on board and

use proper weights and measures R. S., s. 4571.

Owner or master failing to provide f R. S., s. 4572.

warm clothing and room for use of j 21 Dec, 1898, s. 15 ; 30 Stat,
seamen in cold weather [ 759.

952

Appendix.

Chapter Four — Protection and relief — Con-
tinued.
Rules concerning list of ship's crew,
and penalties for violation R. S., s. 4575.

Master of foreign-bound vessel failing
to produce person on ship's list of
crew _

Master of United States vessel refusing
to receive or transport indigent sea-
man from foreign country to United
States _

Rules concerning extra payment to sea-
man on discharge in foreign port in
case of sale of vessel and penalties ■
for violation

R. S., s. 4576.

3 Mar., 1897, s. 3; 29 Stat,

688.
R. S., s. 4578.
26 June, 1884, s. 9 ; 23 Stat.,

55.
19 June, 1886, s. 18 ; 24 Stat.,

83.

R. S., s. 4582.

26 June, 1884, s. 5 ; 23 Stat.,

54.
21 Dec, 1898, s. 17; 30 Stat,

759.

Chapter Five. — Offenses and punishments.
Offenses of seamen or apprentices :

\ R. S., s. 4596.

Deserting ship \ 21 Dec, 1898, s. 19 ; 30 Stat,

[ 760.

f R. S., s. 4596.
Refusing to join vessel or proceed to] 21 Dec, 1898, s. 19; 30 Stat,

sea, etc. I 760.

f R. S., s. 4596.
Wilfully disobeying any lawful com- -j 21 Dec, 1898, s. 19 ; 30 Stat.,

mand, etc. [ 760.

[ R. S., s. 4596.
Continuing to disobey any lawful com- \ 21 Dec, 1898, s. 19 ; 30 Stat.,

mand _ [ 760.

f R. S., s. 4596.

Assaulting master or mate \ 21 Dec, 1898, s. 19 ; 30 Stat.,

[ 760.

f R. S., s. 4596.
Damaging vessel or embezzling stores J 21 Dec, 1898, s. 19 ; 30 Stat.,

[ 760.

fR. S., s. 4596.
Smuggling, etc. \ 2i Dec, 1898, s. 19 ; 30 Stat,

I "60.
Refusing to do or doing certain acts in

willful breach of duty or by reason of

drunkenness _ __R. S., s. 4602.

S R. S., s. 4606.

Boarding vessel before arrival } 31 Mar., 1900 ; 31 Stat, 58.

| R. S., s. 4607.

Soliciting seaman as lodger | 13 Apr., 1904; 33 Stat, 174.

Master to enforce provision against

carrying sheath knives on vessels R. S., s. 4608.

\ R. S., s. 4611.

Master, etc., inflicting corporal punish- \ 21 Dec, 1898, s. 22 ; 30 Stat,

ment that is forbidden by law [ 761.

Detaining clothing of seaman unlawfully { 18 Feb., 1895 ; 28 Stat, 667.

Ill Apr., 1904; 33 Stat., 168.

Appendix. 953

TITLE L .

THE CENSUS.

Receiving fee, etc., for securing appointment, \ 3 Mar., 1899, s. 20 ; 30 Stat.,

etc., of another \ 1020.

Supervisor or other employee refusing or 1 2 July, 1909, s. 22 ; 36 Stat.,

neglecting to perform duties, false swear- J- 8.

ing, or making false returns, etc. J

Refusing information to enumerator, etc. 2 July, 1909, s. 23 ; 36 Stat., 8.

Officer or agent of manufacturing establish-
ment refusing to give information, or
giving false information to officer < ■ agent
of census _

2 July, 1909, s. 24; 26 Stat,
9.

TITLE LI.

COMMON CARRIERS OF INTERSTATE AND FOREIGN

COMMERCE.

Chapter One. — Regulations of transporta-
tions.
Making unreasonable or unjust charge] 29 June, 1906, s. 1 ; 34 Stat.,
for transportation of passengers or J- 584.

property _ J

Free transportation of passengers for- S 29 Jur>e, 1906, s. 1 ; 34 Stat.,

bidden \ 584.

Railroads not to carry products in which S 29 June, 1906, s. 1 ; 34 Stat.,

interested _ } 585.

Railroads to construct switches and to | 29 June, 1906, s. 1 ; 34 Stat.,

furnish cars to shippers ( 585.

[4 Feb., 1887, s. 2 ; 24 Stat.,
Making of special rate or giving of re- | 379.

bate unlawful \2 Mar., 1889, s. 2; 25 Stat.,

[ 857.

I 4 Feb., 1887, s. 3; 24 Stat.,
Undue preferences to persons, localities, I 380.

and traffic prohibited \ 2 Mar., 1889, s. 2; 25 Stat,

[ 857.

f 4 Feb., 1887, s. 4; 24 Stat,
Charge for short haul not to be more I 380.

than for long haul -j 2 Mar., 1889, s. 2; 25 Stat,

[ 857.

f4 Feb., 1887, s. 5; 24 Stat,
Pooling of freight or earnings with | 380.
others prohibited -{ 2 Mar., 1889, s. 2; 25 Stat.

[ 857.
Charge for joint interchangeable mile- [8 Feb., 1895; 28 Stat, 643..

age or tickets to be uniform \ 2 Mar., 1889, s. 2; 25 Stat,

[ 857.
Willful failure to file and publish sched- I 29 June, 1906, s. 2; 34 Stat,

ules of rates and fares 1 587.

Willful failure to observe schedules of] 29 June, 1906, s. 2; 34 Stat,
rates and fares published until changed }■ 587.
according to law J

954 Appendix.

Chapter One. — Regulations of transportations. — Continued.

Carrier not to engage in interstate com-
merce until schedule of rates and
fares are filed; nor to charge differ-
ent rates than those in schedule ; nor
refund any portion of rates and fares

2 Mar., 1889, s. 2; 25 Stat.,

857.
29 June, 1906, s. 2 ; 34 Stat.,
587.
\i Feb., 1887, s. 7; 24 Stat,
Combinations to prevent continuous car- I 382.

riage of freights \ 2 Mar., 1889, s. 2; 25 Stat,

[ 857.
Punishment for violation of interstate f 2 Mar., 1889, s. 2 ; 25 Stat.,
commerce law, to which no specific j 857.

penalty is attached [

Unlawful to offer or give, or to solicit ] 29 June, 1906, s. 2 ; 34 Stat.,
or receive rebate, for property trans- ^ 587.

ported J

Carrier receiving or accepting compen- ] 29 June, 1906, s. 2 ; 34 Stat.,
sation as rebate for property trans- j- 588.

ported _ J

[2 Mar., 1889, s. 2 ; 25 Stat,
False billing, false classification, or false I 858.

weighing of property transported \ 19 Feb., 1903, s. 1 ; 32 Stat.,

847.
Obtaining transportation at less than f 2 Mar., 1889, s. 2 ; 25 Stat,
regular rates by means of false bill- 858.
ing, false classification, or false rep-- 19 Feb., 1903, s. 1; 32 Stat.,

resentations _ [ 847.

2 Mar., 1889, s. 2 ; 25 Stat,
858.
Shipper inducing discrimination in rates \ 19 Feb., 1903, s. 1 ; 32 Stat.,

[ 847.
Act of officer or agent to be also deemed { 29 June, 1906, s. 2; 34 Stat.,
act of corporation \ 587.

Chapter Two. — Interstate Commerce Com-
mission.
Punishment for refusal to testify before \ 11 Feb., 1893, s. 1 ; 27 Stat,

Commission _ \ 443.

Failure of carrier to obey order of the \ 29 June, 1906, ss. 4, 5 ; 34

Commission _ \ Stat, 589, 591.

Failure of carrier to file annual reports \ 29 June, 1906, s. 7 ; 34 Stat.,

required by Commission { 593.

Failure of carrier to keep accounts and ] 29 June, 1906, s. 7 ; 34 Stat.,

records required by Commission ; j- 594.

agent divulging information j

Willfully making false entries in ac-
counts, or keeping unauthorized ac- ( 29 June, 1906, s. 7 ; 34 Stat,

counts _ { 594.

Chapter Three. — Safety appliances on rail-
road cars.
Common carrier using locomotive en- f 2 Mar., 1893, s. 1 ; 27 Stat,
gine not equipped with a power driv- \ 531.

ing-wheel brake, etc. [l Apr., 1896; 29 Stat, 85.

Common carrier hauling, etc., cars used f 2 Mar., 1893, s. 2 ; 72 Stat ,
in moving interstate traffic not equip- \ 531.
ped with automatic couplers [

Appendix. 955

Chapter Three — Safety appliances on rail-
road cars — Continued.
Common carrier using car in interstate 2 Mar. 1893, ss. 4, 6 ; 27.

commerce not equipped with proper j- Stat, 531.

grab irons J

Common carrier using cars in interstate ] 2 Mar., 1893, ss. 5, 6; 27 Stat,

traffic not equipped with draw-bars } 531.

of standard height J

Common carrier failing to make month- ) 3 Mar., 1901, ss. 1, 2; 31

ly report to Interstate Commerce \ Stat, 1446.

Commission of all accidents J

Using locomotive not equipped with J 30 May, 1908, s. 3 ; 35 Stat.,

proper ash pan { 476.

Chapter Four. — Care of animals in transit.

Confining live stock longer than twen- f R. S., s. 4386.

ty-eight hours without unlcading f or -j 29 June, 1906, ss. 1, 2; 34
rest, water, and food [ Stat, 607.

Chapter Six. — Arbitration between carriers
and employees.
Employer demanding agreement of em- ] 1 June, 1898, s. 10 ; 30 Stat.,
ployee not to join union, threatening j- 428.
him with loss of employment, etc. J

Chapter Seven. Hours of sendee of em-
ployees.
Common carriers requiring employees ] 4 Mar., 1907, ss. 2, 3 ; 34
to remain on duty longer than 16 \ Stat., 1416.
hours ; train dispatchers and telegraph |
operators longer than 9 and 13 hours- J

TITLE LII.

COMBINATIONS IN RESTRAINT OF TRADE.

Making contract or engaging in combination, \ 2 July, 1890, s. 1 ; 26 Stat.,

etc., in restriini: of trade \ 209.

Monopolizing, etc., trade among the several f 2 July, 1890, s. 2 ; 26 Stat.,

States, etc. \ 209.

Making contract in restraint of trade, etc., in f 2 July, 1890, s. 3 ; 26 Stat.,

Territories or District of Columbia \ 209.

Persons entering into combination, trust, etc., ]

with another for purpose of importing \ 24 July, 1897, s. 34 ; 30 Stat ,

goods, intended to operate in restraint of j 213.

trade, increase prices, etc. J

TITLE LIV.

REGULATIONS OF EXPORTATION, IMPORTATION, AND

TRANSPORTATION OF ANIMALS, FOODS AND

INSECT PESTS.

Chapter One. — Inspection of animals, meats,
and dairy products for exporta-
tion.
Rules concerning inspection, etc., of ani- 1 30 June, 1906, 34 Stat., 674.
mals intended for exportation, and \ 4 Mar., 1907, 34 Stat, 1260.

penalties for violation J

Bribery of inspectors of meats and of j 30 June, 1906, 34 Stat, 678.
animals intended for slaughter \ 4 Mar., 1907, 34 Stat, 1264.

956 Appendix.

Chapter Tzvo. — Protection against importa-
tion and transportation of in-
fected animals, meats and adul-
terated foods.
Violation of regulations to prevent in- f 30 Aug., 1890, s. 10; 26 Stat.,
traduction of contagious diseases of J 417.

animals _ ]2 Feb., 1903, ss. 2, 3; 32

Stat, 792.

Importation of diseased animals __30 Aug., 1890, s. 6 ; 26 Stat.;

416.
Transportation of live stock from quar- S 3 Mar., 1905, ss. 2, 6 ; 33

antined districts 1 Stat, 1264.

Moving live stock from quarantined dis- S 3 Mar., 1905, ss. 4, 6 ; 33

trict contrary to regulations 1 Stat, 1265.

Violating regulation respecting exporta- [ 29 May, 1884, ss. 4, 5 ; 23
tion and transportation of live stock ' Stat, 32.

from infected district

2 Feb., 1903, ss. 1, 3; 32
Stat, 791.

Chapter Three. — Regulation of importation
and transportation of foods,
drugs, grain, and seeds.
Importation and transportation of adul-1 30 June, 190C, s. 2; 34 Stat,
terated or misbranded foods or drugs r 768.

J
Manufacture of adulterated foods and ] 30 June, 1906, s. 1 ; 34 Stat.,
drugs in Territories and District of !- 768.
Columbia J

Chapter Four. — Regulation of transportation
of insect pests.

Transporting certain insect pests --3 Mar., 1903, ss. 1, 4 ; 33

Stat, 1269.

Sending insect pests by mail 3 Mar., 1905, s. 2; 33 Stat,

1270.

Chapter Five. — Regulation of 'preparation,
sale, and interstate traffic in
viruses, serums, etc.
Violation of rules concerning produc- ] 1 July, 1902, ss. 1-7 ; 32
tion, inspection, and sale of viruses, \ Stat, 728.

serums, etc. J

Interfering with officer or employee of f 1 July, 1902, ss. 6, 7 ; 32
Treasury Department \ Stat, 728.

TITLE L V .

IMPORTATION OF ADULTERATED TEAS AND IMPORTA-
TION OF OPIUM BY CHINESE PROHIBITED.

Chapter Tzvo. — Importati ■% of opium by
Chinese, and exportation to
China by citizens of the United
States, prohibited.

Importing of opium by Chinese --23 Feb., 1887, s. 1 ; 24 Stat.,

409.
Citizens of United States importing S 23 Feb., 1887, s. 3 ; 24 Stat.,

opium into open ports of China \ 409.

Unlawfully bringing into United States, 1 9 Feb., 1909, s. 2; 35 Stat,
or buying, selling, or concealing \ 614.
opium so brought J

Appendix. 957

Chapter Three. — Regulation of importation,
transportation, and exportation
of falsely stamped merchandise,
and the landing and sale of
sponges.

21 Feb., 1905, ss. 1, 2; 33
Stat., 732.

13 June, 1906, ss. 4, 5; 34

Stamping the words "United States As-
say" on goods manufactured from
gold or silver which enter into Inter-
state Commerce

Falsely stamping as to fineness or qual-
ity of metal articles manufactured \ 34 Stat, 260.
from gold or silver J

Stamping the words "sterling" or ] 13 June, 1906, ss. 4 , 5 : 34
"coin" on gold or silver-plated mer- [ Stat., 261.
chandise J

Unlawful landing, delivery, or sale of

sponges _ 20 June, 1906; 34 Stat, 313.

TITLE L V II .

LIGHTS AND BUOYS.

Maintaining light, or other aid to navigation 1 20 June, 1906, s. 3 ; 34 Stat.,

without permission of Light-House Board j- 324.
Failure to maintain lights on bridges over j 14 May, 1908, s. 5 ; 35 Stat ,

navigable waters ( 162.

TITLE LVIII.

PROTECTION OF FUR SEALS.

' T\ S., S. 1956.
Killing of fur seals within the limits of 2 Mar., 1889, s. 3 ; 25 Stat.,

Alaska, including Bering Sea \ 1009.

I 3 Mar., 1899, s. 173 ; 30 Stat,
{ 1279.

fR. S., ss. 1960, 1961.
Killing of fur seals on St. Paul and St { 3 Mar., 1899, ss. 177, 178 ; 30

George islands [ Stat., 1280.

Killing female seals, or seals less than one f R. S., s. 1961.
year old -j 3 Mar., 1899, s. 178; 30 Stat,

I 1280.

Killing seals on St. Paul and St. George is-
lands, without authority of lessees __R. S.. ss. 1861, 1967.

Citizens of United States equipping vessel ) 29 Dec, 1897, ss. 1,2,3; 30
for killing, or killing fur seals in cer- [ Stat, 226.
tain parts of Pacific Ocean J

TITLE L X .

LABOR.

Chapter Two. — Hours of labor. •

Requiring employees on Government] 1 Aug., 1892, s. 2; 27 Stat,
work to labor more than eight hours [ 340.
per day, etc. J

958

Appendix.

TITLE L X I

IMMIGRATION.

20 Feb., 1907, s. 3 ; 34 Stat.,
899.

Chapter One — Regulation of immigration.
Importation of women for purpose of
prostitution, or for other immoral pur-
pose ; harboring for immoral pur-
pose alien woman or girl within three
years after entry into United States .
Aiding anarchist to enter the United

States -20 Feb., 1907, s. 38 ; 34 Stat,

908.

Soliciting the importation of contract \ 20 Feb., 1907, ss. 4, 5 ; 34

laborers { Stat., 900.

Advertising to encourage immigration. — 20 Feb., 1907, ss. 4, 5, 6; 34

Stat., 900.
Soliciting of immigration by vessel

owners _ 20 Feb., 1907, ss. 4, 5, 7; 34

Stat, 900.
Illegal bringing in or landing of aliens___20 Feb., 1907, s. 8 ; 34 Stat.,

900.
Bringing in persons afflicted with loath- \ 20 Feb., 1907, s. 9 ; 34 Stat.,

some or contagious disease ) 901.

Copies of immigration laws to be posted \ 3 Mar., 1893, s. 8; 27 Stat.,

up in foreign countries ] 570.

List of alien

immigration

sel _~_ J

Officers of vessels permitting the illegal (20 Feb., 1907, s. 18; 34 Stat.,

landing of aliens \ 904.

Return by steamship company of aliens (20 Feb., 1907, s. 19; 34 Stat.,

illegally landed 1 904.

Chapter Two. — Exclusion of Chinese per-
sons.
Master of vessel refusing or neglecting ] 5 July, 1884, s. 8 ; 23 Stat.,

to deliver list of Chinese persons on (. 117.

board .

passengers to be furnished] 20 Feb., 1907, ss. 12, 15; 34
n officers by master of ves- \ Stat., 901.

Master of vessel unlawfully bringing

13 Sept., 1888, ss. 9, 10; 25
Stat, 478.

into the United States Chinese per- \ 29 Apr. 1902, s. 1 ; 32 Stat.,

sons

Bringing into United States by land f 5 July, 1884, s. 11; 23 Stat,
Chinese person

Forgery of certificate issiu I to Chinese
person ; false personation

170.

! 117.
13 Sept., 1888, ss. 9, 10; 25

479.
5 May, 1892, s. 8; 27 Stat.

26.
29 Apr., 1902; 32 Stat, 176.
Violation of other provisions of Chinese

exclusion laws 5 July, 1884, s. 16; 23 Stat.,

118.

Chapter Three. — The cooley trade.

Building, equipping, etc., vessel for the

cooley trade R. S., s. 2160.

Receiving or transporting coolies R. S., s. 2161.

Transporting, etc., subject of China, \ 3 Mar., 1875, s. 2; 18 Stat.,

Japan etc., without consent } 477.

Contracting or attempting to contract \ 3 Mar., 1875, s. 4 ; 18 Stat,

to supply cooley labor | 477.

Appendix. 959

TITLE LXII.

NATURALIZATION AND EXPATRIATION.

Chapter One. — Naturalisation.

Clerk of court of other person illegally } 29 June, 1906, s. 18 ; 34 Stat,

issuing certificate of naturalization ( 602.

Clerk or other officer of court neglect- ] 29 June, 1906, s. 20 ; 34 Stat.,

ing to render accounts of money re- \ 602.

ceived in naturalization proceedings- J
Clerk of court or other officer issuing S 29 June, 1906, s. 22 ; 34 Stat.,

false certificate or acknowledgments- | 603.

Fraudulently obtaining naturalization 29 June, 1906, s. 23 ; 34 Stat.,

603.

TITLE LXIV.

CIVIL RIGHTS.

Persons not to be discriminated against in
inns, public conveyances, theatres, etc., on
account of race or color ; penalty

District attorneys, marshals, etc., failing to
enforce provisions of civil rights act

Persons not to be excluded as jurors on ac-
count of race or color

Marshal or deputy refusing to execute pro-
cess issued under provisions of this Title

1 Mar., 1875, ss. 1, 2; 18
Stat, 336.

1 Mar., 1875, s. 3 ; 18 Stat,

336.
1 Mar., 1875, s. 4 ; 18 Stat,

336.

R. S., S. 5517.

TITLE LXVI.

THE SEAT OF GOVERNMENT.

Chapter One. — Public buildings, parks, and
wharves.
Tapping, without authority, pipes laid

by United States R. S., s. 1803.

Willfully breaking, etc., water pipes in

District of Columbia __R. S., s. 1804.

Maliciously making water supply of

District of Columbia impure __R. S., s. 1806.

Chapter Two. — Capitol building and grounds.

Regulations concerning use of Capitol ] 1 July, 1882, ss. 1-7 ; 22
grounds, and penalties for violation- \ Stat., 126.

TITLE LX VII.

RAILWAYS AND TELEGRAPH COMPANIES.

Chapter Two. — Submarine cables.

Breaking, injuring, or aiding or abetting \ 29 Feb., 1888, s. 1; 25 Stat,

the injuring of submarine cable 1 41.

Breaking submarine cable by culpable j 29 Feb., 1888, s. 2 ; 25 Stat.,

negligence ] 41.

Rules to be observed by master of ves- j 29 Feb., 1888, s. 4 ; 25 Stat.,

sel laying cable, and other vessels in > 41.

proximity, and penalties for violation J

960 Appendix.

Chapter Two — Submarine cables — Continued.

Master of fishing vessel failing to keep ] 29 7eb., 1888, s. 5 ; 25 Stat.,
nets, etc., more than a nautical mile \ 41.
from vessel laying cable J

Refusing to produce certain papers nee- j 29 Feb., 1888, s. 7 ; 25 Stat.,
essary for the preparation of speci \ 42.
fied statements J

Master liable in case of certain viola-
tions —29 Feb., 1888, s. 9; 25 Stat,

42.

TITLE LXVIII.

BANKRUPTCY.

Chapter Four. — Courts and procedure there-
in.
Offenses against bankruptcy laws, and J 1 July, 1898, s. 29; 30 Stat.,
penalties for violation { 554.

TITLE LXIX.

INSURRECTION.

Trading in insurrectionary States, or certain

other places, without a license, etc. R. S., s. 5306.

Trading in captured or abandoned prop-
erty R. S., s. 5313.

TITLE LXXII.

PUBLIC PRINTING.

Chapter One. — Public Printer, duties, etc.

Public Printer colluding, etc., to de- ] R. S., s. 3784.

fraud United States \12 Jan., 1895, s. 33; 28 Stat,

J 605.
Public Printer or other employee having | R. S., s. 3765.

interest in contracts for paper or \ 12 Jan., 1895, s. 34 ; 28 Stat,
other material for public printing J 605.

TITLE L XXIII.

HOMES FOR VETERANS.

Chapter Two. — The National Home for Dis-
abled Volunteer Soldiers.
Trespassing upon, or violating rule for 1 22 Mar., 1906, ss. 2, 4 ; 34
the Government of Battle Mountain \ Stat., 83.
Reserve, South Dakota J

TITLE LXXIV.

PENAL AND REFORMATORY INSTITUTIONS.

Chapter One. — Custody and transportation
of prisoners.

Hiring out United States convicts 22 Feb., 1887, ss. 1, 2; 24

Stat, 411.

Appendix. 961

Chapter Three. — Reform School for Boys.

Enticing away or harboring escaped in- j 3 May, 1876, s. 11 ; 19 Stat.,
mates of Reform School for Boys — ( 51.

TITLE LXXV.

HOSPITALS, ASYLUMS, AND CEMETERIES.

Chapter One. — The Government Hospital
for the Insane.
Making false affidavit as to insanity of

person, or physician making false cer- 27 Apr. 1904, s. 6 ; 33 Stat..
tificate i 318.

Chapter Three. — National cemeteries.

Defacing national cemetery by destroy-
ing, mutilating, etc., any monument,
grave-stone, etc., or breaking or in-
juring any tree, shrub, etc. R. S., s. 4881.

TITLE LXXV I.

NATIONAL MILITARY PARKS.

19 Aug., 1S90. s. 10; 26 Stat..

335.

27 Dec. 1S94, s. 7; 2* Stat.,

598
Defacing National Military Park-Injuring ^ s ,. g

monument — Injuring trees and shrubs, or ! „_9

fence or inclosure | ? £r ^ s_ 1; 29 gtat>

J 21 Feb., 1899, s. 7; 30 Stat..

Hunting or trapping on National Military

Park ___3 Mar.. 1897, s. 2; 29 Stat..

621.
Unlawfully refusing to give up possession \ 3 Alar.. 1897, s. 4; 29 Stat.,

of land in park leased for other purposes \ 621.

TITLE L X X V I I .

NATIONAL PARKS.

Rules concerning hunting and fishing, and] 7 May. 1894, s. 4; 28 Stat..

preservation of natural objects in Yellow- \ 73.

stone Park, and penalties for violation J

Laws of Wyoming made applicable to Yel- ] 7 May. 1894, s. 5 ; 28 Stat.,

lowstone Park in certain cases not pro- \ 73.

vided for in the United States laws j

Unlawful settlement or residence, etc., in S 22 May. 1902, s. 3 : 32 Stat..

Crater Lake Park / 203.

Trespassing on Wind Cave National Park 9 Jan., 1903. s. 6; 32 Stat.,

766.
Molesting or destroying buildings, relics, or { 29 June. 1906, ss. 3, 4; 34

ruins in Mesa Verde National Park \ Stat., 617.

Trespassing upon or injuring buildings or \ 21 Apr.. 1904, s. 18; 33 Stat..

springs in Piatt National Park { 220.

INDEX

ABATEMENT, plea, illegally secured evidence, 8; 41; 44; 45.

ABORTION, see postal offenses; also 561.

ACKNOWLEDGMENT, forged, 349; 770.

ACCESSORIES, 653.

ACCOMPLICE, 118; white slave, 635; accessories, 653.

ADMIRALTY RULES, 233.

ADVERTISEMENT— on U. S. Security and in resemblance of, 265; 270.

ADULTERY, 563.

AGRICULTURE— secretary — future trades, 673; powers of, 674; stock-
yard regulations, 675.

AID AND ABET, postmaster, 215; generally, 652; see National Banks.

ALIBI, 233.

ALIENS, 115-118; deported for certain practices, 634.

ALIEN PROPERTY ACT, 233.

ALASKA COURTS, 119.

AMENDMENT TO CONSTITUTION, 1-4; adopted how, 4.

ANIMAL INDUSTRY— BUREAU, employees, interfering with, 390;
783; transportation of, 454.

ANTI-PASS-LAW, 453.

APPEAL AND WRIT OF ERROR, 119; 120; 125; 143; 233.

APPENDIX, 755-911, Penal Code.

APPROPRIATION— Contract in excess of, 320; 797.

ARRAIGNMENT, 49.

ARREST OF JUDMENT, 234.

ARSON, murder, etc., see Postal Crimes, 179; 181; what is, etc., 540.

ARGUMENT, improper, 69; 72; 75; 242.

ARMY & NAVY, 120; 234; to serve against U. S., 411; officers, quali-
fications to vote, 441; enticing to desert, 776; see United States.

ASSISTANT DISTRICT ATTORNEY, 111.

ASSIGNMENT OF ERRORS, 119; 120; 122; 125; 143.

ASSAULT TO COMMIT MURDER, rape, robbery, etc., 536.

ATTEMPT TO COMMIT MURDER, or manslaughter, 537.

964 Index.

AUDITOR — Postoffice Department, transcript from, evidence, 227.
AUTOMOBILE, theft, interstate, 462.

BAIL, no excessive, 4; bail bond, penalty remitted, 6; 49; during trial,
50; 51; forfeiture and relief, 51; 100; after affirmance, 101; matter
of discretion, when, 101; 102; voluntary giving no defense, 102;
see supersedeas,

BANKS, see National Banks.

BANKER, receiving deposit from disbursing officer, 318; 796.

BANKRUPT — offenses — act, 610; decisions, 612; corporation, 614; part-
nership, 617; failure to pay over money, 618.

BAWDY HOUSE, 235.

BID, forgery, 340; to prevent bid on government land, 782.

RILL OF ATTAINDER, 3.

BILL OF LADING, fraudulent, 213.

PILL OF PARTICULARS, 122.

BIRDS — importation of, migratory, etc., 454; 456; Hunting and eggs,

677; 791; pigeons, 678.

BODY— of offender, 652.

BOND, see bail; forgery of, 340.

BRIBERY, 306; judge or judicial officer, 306, 809; 810; member of
Congress, 309; 324; 800; officer, 331; U. S. officer, 374; 775; 804;
see officer; see Congress, juror, referee, etc., 810; witness, 810.

BUTTER, adulterated, 235; see Int. Rev.

CARRIER — see Common Carrier.

CKNSUS— offenses, 685.

CHECKS, falsely certifying, 591; see National Banks.

CHALLENGES, 52.

CHARGE OF COURT, 89.

CHARGE ON GOOD CHARACTER, 86.

' MFLD LABOR LAW, 235.

CHINAMEN, 115; 118.

CITIZENSHIP— certificate of— forgery, 397; falsely claiming, 402; 789;
false oath in naturalization, 403; civil rights, conspiracy to injure,
128.

CIVIL RIGHTS- conspiracy to injure, 428; right to labor, 433; voting,
137; right to inform of violation of law, 438; right of one in

Index. 965

custody to protection, 438; other crimes against, 440; depriving
under color state law, 440; conspiracy to prevent holding office.
441; troops at election, 441; intimidation of voters, etc., 441; con-
spiracy against, 763; 764; 766.

CIVIL SERVICE — forgery of examination, 344; cohabitation — unlaw-
ful, 562.

CLAIMS — taking papers relating to, 377; 775; persons interested in.
not to act as U. S. agent, 377; 776; 800.

CLAYTON ACT, 136-141; 235.

CLERK, of court — loan from, 320; see court officers.

COINS, 267-270; 271; 272; 273.

CODE, judicial, 25.

CODE, penal, 755.

COMMENTS, District Attorney, 69; court, 80; by court, 91; by court,
93.

COMMON CARRIER, not to collect purchase price, 452; see also
explosives; interstate commerce; falsifying accounts of, 693.

COMMON LAW, no jurisdiction, 22; offenses, 236.

COMMISSION— accepting foreign, 758.

COMMISSIONER OF INTERNAL REVENUE, certain regulations by,

247.

COMMISSIONER, U. S., 27.

COMPENSATION, illegal, postmaster, 214; civil remedy, 215.

COMPROMISE, 569.

COMMUNIST PARTY, 117.

CONFEDERATE MONEY, 259.

CONFESSION, 58; 239.

CONGRESS— members of, accepting bribe, 309; 324; 800; 801; 802;
see political elections, 676; contracts, interest in, 802-803.

CONSPIRACY— to intimidate witness, party, officer, juror, 301.
757; to injure citizens civil rights, 428.

CONSPIRACY— against U. S„ 362; 773; venue, 367; seditions, 411;

CONSOLIDATION OF INDICTMENTS, 53; 56.

CONSTITUTION, U. S. 1; Art. V. 1; Art. VI 1-2; Art. Ill 2; Art. 1.
sec. 8; 2; power granted and result, 2; guarantees, 3-22; violation
of, presumes injury, 4.

CONTEMPT, 4; 29; 35.

CONTINUANCE, 126.

CONTRACT LABORERS IMPORTED, 117.

CORRESPONDENCE— criminal, 680; 756.

966 Index.

CORPORATION, indictment of, 123; must not contribute money to
politics, 404; 791; contributions by, 678.

CORRUPTION — conviction not to work, 643.

CORPUS DELICTI, 236.

COTTON, future contracts, 463.

COSTS, court, in criminal cases, 237.

COUNSEL, advice of, 236.

COUNSEL, right to, 4.

COUNTS, 56.

COUNTERFEITING; M. O. 220; postage stamps, domestic or foreign,
223; plates for, 251; having possession of, 251; U. S. securities,
255; Nat. Bank notes, 258; confederate money, 259; other securities
and State Bank notes, 259; knowledge, 261; bills expired corpora-
tion, 263; mutilating, etc., 264; advertisements, 264; gold or silver
bars, 267; similitude, 268; minor coins, 270; coins resemblance, 271;
devices for minor coins, 272; dies, etc., 273; to be forfeited, 274;
search warrant, 275; see forgery; weather reports, 337; weather,
390; 783; all sorts of monies, 816.

COURTS, birth and jurisdiction, 25; what is, 27; comments by, 80; 91;
instructions of, 89; postal crimes in, 149; meaning of, 245; state,
248; state, 644; see, also, state laws; embezzlement by officers of,
675.

COURT OFFICERS— see officers.

CRIMES, infamous, misdemeanors, 9; 10; controlled by Federal stat-
utes and courts, only, 21; 22; postal, 147; statutes, 753.

CRIMINAL INTENT, 242.

CROP — reports information as to, 336.

CROP REPORTS, 806; see officer.

CROSS EXAMINATION, 237.

CUSTOMS — forging certificate of entry etc., 390; concealment of in-
voices, 391; admitting merchandise at less than legal duty, 394;
false samples, 395; false certifications, 396; collector of, to detain
vessels, when, 425; see smuggling.

DATE, in indictments, 238.

DECOYS, 159-160; 163; 237; 240.

DEFENDANT, indigent, process for, 19; trial of, while serving term,
248.

I >K PENDANT, failure to testify, 71; 76.

DEED, power of atty, etc., forging, 344.
DK.MAND ON DEF'T FOR EVIDENCE, 238.
INSERTER, see Army & Navy.

Index. 967

DISBURSING OFFICER— offenses by, 793; see officers; see public

money; deposit from, 796.

DISBURSING OFFICER— embezzlement by, 315.

DISCHARGE, see Army & Navy.

DISQUALIFICATION OF JUDGE, 129.

DISTRICT ATTORNEY— improper argument, 69; 72; in grand jury
room, 77; 242.

DOCUMENTARY, evidence secured illegally, practice, 65.

DOUBT, reasonable, 154.

DYNAMITE, etc., not to be carried, 443.

DUPLICITY, 57; 154.

DUE PROCESS OF LAW, 4.

DUNS ON POSTAL CARDS, etc., 187.

DURESS, 239; see confessions.

DWELLING, private, entry and search, 5-22.

DYING DECLARATIONS, 19.

EDITORIALS, paid, 180.

EIGHT HOUR LAW, 239.

EIGHTEENTH AMENDMENT, 476.

ELECTIONS— primary, 442.

EMBEZZLEMENT, postal funds, 225; different species, 315; disbursing
officer, 315; prima facie evidence of, 317; 795; Internal Revenue
officer, 319; arms, stores, etc., 360; 773; bank, 596; 598; 796; by
court officers, 675; public money, 685; 778.

EMPLOYEES, federal, injured and compensated, 240.

ENLISTING IN FOREIGN SERVICE, or against U. S., 757; 758.

ENTICING — desertions, 378; 776; away workmen, 378; 777.

ENTRAPMENT, 159-160; 163; 237; 240.

ERRORS, assignment, etc., 119; 120; technical, 122; 125; 143.

ESPIONAGE ACT, 181.

EXAMINATION, cross, 237.

EXCEPTIONS, in statutes, 241.

EXECUTION — see prisoner — recruiting prisoner, 813.

EXPATRIATION, 117.

EXPERT, testimony, 240.

968 Index.

EXPLOSIVES, in mails, 231; in interstate commerce, 443; 444; I. C.
Commission to make regulations about, 445; nitro-glycerine, etc.,
445; marking pkgs, 446; death by, 446.

EX POSTO FACTO LAW, 3.

EXTORTION— Internal Revenue informers, 305; by any officer, 311;
793.

EXTRADITION, 3; 127; 547.

EVIDENCE, secured illegally and return of, 5-22; illegallly secured
is inadmissible, 5-22; against self, 13; illegal before grand jury,
44; destruction of, may be proven, 44; confessions, 58; secured
illegally, 63; 65; method for recovering illegally secured, 67; no
right to compel deft, to produce, 68; of good character, 85; of
other offenses, 86; 113; handwriting, 145; postmark, 177; of postal
funds, transcript, of auditor admissible, 227; demand on defendant
for, 238; demurrer to, 238; refreshing memory, 246; of embezzle-
ment, 317.

FALSE BILLING, 243.

FALSE CERTIFICATE BY OFFICER, 322; 799.

FALSE CLAIMS, 354; 772.

FALSE CLAIM FOR DAMAGES TO SHIPMENT, 243.

FALSE DEMAND— or power of attorney, 354; 771.

FALSE IMPRISONMENT, void warrant, 5.

FALSE PERSONATION, holder public stocks, 353; 771.

FALSELY PRETENDING TO BE U. S. OFFICER, 350; 771; 784.

FALSE RETURNS, to increase postoffice revenue, 213.

FARM LOANS STATUTES, 676.

FEDERAL EMPLOYEES, injured and compensated, 240.

FEDERAL STATUTES ALONE CONTROL, 21; 22.

FEDERAL TRADE COMMISSION, 138.

FEDERAL TERRITORY— offenses, 525; defined, 526; ceded to U. S.,
526.

FELONY, misprision of, 305; what is, 653.

FICTITIOUS NAME, postal crime, 202.

FILTHY, see Postal crimes.

FINE — abated by death, recovery, creditor's bill, 101.

FOOD AND FUEL— hoarding of, 676.

FOOD AND DRUGS— Act, 619; criminal sections, 619; decisions, 620;
misbranded, 626.

FORGERY — see counterfeiting, signature of judge, etc., 297; letters
patent, 339; 768; bond, bid, public record, 340; 768; civil service.

Index. 90!)

344; false claims, 344; deeds power of attorney, etc., 344; 769;
papers, in possession, 349; 770; acknowledgments, 345; 770; cus-
toms certificate, 390; certificate of citizenship, 397; 398; 787;
weather forecast, 783; land warrant, 7S6; ship's papers, 786.

FOREIGN GOVERNMENT— criminal correspondence with, 410; ac-
cepting foreign commission, 415; see neutrality; foreign vessels to
deport, 424; criminal correspondence with, 680.

FORNICATION, 565.

FORTIFICATION, etc., injuries to, 379; military reservation entering,
379.

FORMER CONVICTION OF WITNESS, 112.

FORMS — for indictment; embezzlement, 694; 710; misconduct officers
ship, 695; conspiracy to violate lottery statute, 696; conspiracy to
deny civil rights, 698; peonage, 699; 700; 721; polygamy, 701; I.
R. C. D., 701; olemargarine, 702; conspiracy to plunder vessel, 703;
government timber, 703; bribery, 705; larceny, 705; 708; natural-
ization, 706; 708; subornation of perjury, 706; murder, 708; falsely
certifying checks, 709; pretending officer, 711; conspiracy v. U. S.,
712; obscene matter, 713; breaking into P. O., 713; fraudulent use
of mail, 714; 735; false returns by P. M. to increase compensation,
715; perjury, 716; 717; forgery National Bank notes, 719; counter-
feiting, 719; coins, 720; receipting for larger sums, 721; meat
inspection law destroying or altering tags, 727; Department
Agriculture tags, 728; harboring prostitutes, 729; violating qiiar
antine Act, 731; conspiracy to violate White Slave Act, 739;
Jack Johnson indictment white slave, 740; for writ of error, 747.

FRAUD ORDER, 247.

FRAUDULENT USE OF MAILS, 188; 247; fraud order, 247.

FREE WHITE PERSON, 116.

FREE SPEECH, 241.

FUTURE TRADING ACT, 666; tax on options, etc., G67.

GOLD OR SILVER BARS— counterfeiting, 267.

GOOD CHARACTER, 85; 88.

GOVERNMENT— our systems, 427.

GRAIN— future trades, 666.

GRAND JURY, 20; 27; 36; evidence before, 40; political complexion.
43; returned in what district, 43; illegal evidence before, 44;
District Attorney in room, 77; misconduct, 77; improper person in
room, 109; hearsay testimony before, 111.

GUILTY, court cannot instruct, 233.

HABEAS CORPUS, not suspended, 3; 104; military and state courts,
105; not used is writ of error; to state court, 241.

970 Index.

HANDWRITING, comparison, etc., rule, 145.

HARD LABOR, 654.

HARRISON LAW, see opium.

HEARSAY TESTIMONY BEFORE GRAND JURY, 111.

HEPBURN ACT, 242.

HIGH SEAS, decisions and crimes, 558.

HOARDING OF FOOD AND FUEL, 676.

HOMICIDE, 530.

HUSBAND CANNOT BE WITNESS FOR WIFE, 248.

HUNTING BIRDS AND TAKING EGGS, 677; 791.

ILLEGAL SEARCH, 5-22.

IMMIGRATION ACTS, 116.

IMMUNITY OF WITNESS, 13-22; 5; 13; 107; promises of, 247.

IMPEACHMENT OF VERDICT, 53; 54.

IMPROPER ARGUMENT, 69; 72.

IMPROPER PERSON IN GRAND JURY ROOM, 109.

IMPRISONMENT, FALSE, void warrant, 5; for debt, not allowed, 233;
where, 654.

INCEST, 564.

INCOME TAX, 242.

INDECENT, see postal crimes.

INDIGENT DEFENDANT, process for, 19; 121; 144.

INDIAN, 242.

INDIAN COUNTRY— intoxicating liquors in, 682.

INDICTMENT, 4; copy of, furnished, when, 21; 36; 40; return of,
etc., 38; 54; motion to quash, 41; 43; 44; defect in, after verdict,
44; motion to quash, additional, 45; consolidation of, 53; endorse-
ment of, 55; 56; courts in reference to each other, 56; place of
finding, 56; presence of judge, 56; duplicity, 57; of corporation,
123; date in, 238; negativing exceptions, 241; unknown, 248.

INFORMATION, 10; 36; 42; 45.

INJUNCTION, 242; 248.

INSANITY, from drugs or liquors, 244.
INSURANCE— war risk, 679.
INSTRUCTIONS OF COURT, 89.

Index. 971

intent, criminal, 242.

INTEREST, on criminal judgment, 242.

INTERNAL REVENUE, see butter; officer; embezzlement by, 319;
796; extortion by, see extortion; resisting officer of, destroying,
etc., property, 391; 784; presents to officer, 393; 784; offer of
compromise, 569; tax paid first, 570; partnerships, 57; must ex-
hibit stamps, 571; rectifiers, dealers, etc., 572; "business," 572;
C. O. D., 573; cases, 575; proof of license, 577; distiller, 577;
breaking locks, signs, etc., 578; concealment, books, etc., 579;
stamps off emptys, 580; reuse packages, etc., 581; removing, etc.,
582; olemargine, 583; see intoxicating liquors; see Volstead Act;
see officer; pretending to be Revenue officer, 784.

INTERSTATE COMMERCE— witness as before, immunity, 17; false
billing and false claim for damages to, 243; 443; explosive, reg-
ulations, 445; liquors, 449; wild animals, birds, reptiles, etc., 454;
transportation of animals, etc., 456; 457; 458; obscene matter, 458;
theft of goods in, 460; auto, 462; cotton futures, 463; regulations
of, 471; commission, 471; carrier falsifying accounts, 693.

INTIMIDATION OR CORRUPTION OF WITNESS, or juror or officer,
297.

INTOXICATING LIQUORS, to Indians, 243; interstate shipment of.
marks, etc., 449; common carrier not to collect, etc., 452; marking
packages, 453; history of acts, 475; see internal revenue, also
Volstead Act; in Indian Country, 682.

JUDGE, absence of, 56; improper emphasis, 75; comments and atti-
tude of, 80; 83; disqualification of, 129; intimidation or corrup-
tion, 297; bribery of, 306.

JUDGMENT, arrest of, 234; interest on criminal, 242.

JUDICIAL CODE, 25.

JEOPARDY, 11; 19.

JURISDICTION— see state laws — state courts— U. S. courts; constitu-
tional provisions.

JURORS, grand and petit, 20; 27; 36; 44; challenges, 52; jury trial,
priceless, 77; waiving of, etc., 79; drawing of, 80; care of, 83;
setting aside verdict, 85; corruption or intimidation of, 297; at-
tempt to influence, 302; 812; bribery, 306; 810.

KIDNAPPED — person, bringing into U. S., 523.
KNOWLEDGE, postal violations, 168-177; counterfeiting, 261.

LABOR, Eight Hour Law, 239; enticing away workmen, 378; injuries
to fortifications, 379; right to, 433; importing contract labor, 636;
see Hard Labor.

LANDS, public, 245; to prevent hids on, 782.

972 Index.

LAND SCHEMES, fraudulent, 210; 212.

LARCENY, 541; see theft; see embezzlement.

LETTER CARRIERS, 246.

LETTERS PATENT— forgery of, 768; 339.

LEVER ACT, 5; 245.

LIBEL — not federal offense, 543.

LIBELOUS, indecent wrappers, postal crimes, 182.

J. IMITATIONS, 134; 689.

LIQUORS, soliciting ads, 231.

LOAN COMPANY, fraudulent, 210; 212.

LOTTERY, etc., postal crimes, 204.

MAIL, postal violations, see postal crimes; carrying illegally, 231.

MANDAMUS, to compel U. S. court, 246.

MANSLAUGHTER, 534; 536; attempt to, 537.

MARRIAGE CERTIFICATE— failure to record, 564.

MARSHAL, U. S. and deputies, appointment, etc., 246.

MATERIALITY— wilfulness— in perjury, 282.

MEMORY, refreshing, 246.

MILITARY — see Army & Navy; injuring fortification — entering reser-
vation, etc., 379; 777; see reservation; land warrant, forgery, 786.

MINOR, see Army & Navy.

MISAPPLICATION, see National Banks.

MISAPPROPRIATION, of postal funds, 225.

MISDEMEANORS, what are, 653.

MISPRISION— of felony, 305.

MONEY ORDER, issuing without money, 219; counterfeiting, etc., 220.

MONEYS— public— offenses as to, 315; 316; failure to keep, to ac-
count, to deposit, etc., 316; embezzlement of deposit, 685.

MONOPOLY, 136-141; 235.

MONUMENTS— government— destroying, etc., 781; see military; see
reservation; fences; gates, etc., 781.

MORAL TURPITUDE, 115.

MOTION TO QUASH, 246.

MURDER, 530; 536; assault to commit, 536; attempt to, 537.
MURDER, arson, etc., postal crimes, 179; 181.

Index. 973

MUTILATING, etc., IT. S. Security, 264.
MUTINY, 548.

N.
NARCOTIC— see opium.

NATIONAL BANKS, 589; Federal Reserve, 590; 608; aiding and
abetting, 591; falsely certifying checks; wilfully, 595; acting by
others, 595; embezzlement, etc., 596; 598; false enteries, 599;
abstraction, 600; misapplication, 601; books admission, 606; sec.
5200, 609.

NATURALIZATION— false personation, etc., 398; using false cer-
tificate or denying citizenship, etc., 400 as evidence of right to
vote, 401; false oath in, 403; 790; provisions for all courts, 404;
to cancel certificate, 404.

NEW TRIAL, 133.

NEWSPAPER, paid "ads" etc., 180; false affidavit as to circulation,

246.

NEUTRALITY — offenses against, 413; President's power to enforce,
414; accepting foreign commission, 415; enlisting in foreign serv-
ice, 415; arming vessels against people at peace with U. S., 416;
augmenting" force of foreign vessel of war, 419; military ex-
peditions against people at peace with U. S., 420; enforcement of!
neutrality acts, 423; compelling foreign vessels to deport, 424;
armed vessels to give bond on clearance, 424; detention by col-
lector of customs, 425; construction of these acts, 426.

NITRO-GLYCERINE, etc., not to be carried, etc., 445.

NOLO CONTENDERE, 131.

NOTARY PUBLIC NOT KNOWN TO U. S., 47.

NOTES, of less than dollar, 266.

OATH OF OFFICE, postal, 213.

OBSCENE, etc., matter, 168; see postal crimes, 177; in interstate com-
merce, carrier, 458; 561; 798; aiding in trading in.

OBLIGATION— or security of U. S., 249; 815.

OBSTRUCTING — process, etc., 289; advice may be, 294.

OFFICER— intimidation or corruption of, 297; bribery of, 306; 804;
who is, 307; extortion by, 312; 793; receipting for larger sums
than paid, 3; 4; 793; disbursing officer embezzling, 315; 318; 793;
embezzlement by, 319; contract by excess appropriation, 320;
failing to deposit funds of U. S., 320; receiving loan from clerk,
etc., of court, 320; 797; failure to make report or return, 321;
trading in obscene literature, 321; forbidding to trade public
funds, 321; 798; making false certificate, 322; 799; illegal fees,
322; pension agent taking fees, 322; 799; not interested in claims
v. U. S., 323; bribery of, 331; 775; decisions bribery, 333; po-
litical contributions, 334; giving out advance information of re-

974 Index.

port on crop, 336; 806; false statistics, 337; 806; counterfeiting
weather forecasts, etc., 337; pretending to be, 350; bribery of,
374; 809; who is, 376; resisting, 391; pretending to be, 391; 784;
offering presents to, 393; taking property from revenue officer,
397; disqualification from holding, 442; embezzlement by court
officers, 675; 797; render account of money, 794; failing to make
returns, 798; obscene matter, 798; witness fees, 799; false cer-
tificate, 799; steamboat inspector, 799; must not claim v. U. S., 800.

OLEOMARGARINE, 583.

OPINION OF COURT, 80-91; 93.

OPIUM, 464; decisions, 509; 627; constitutional, 629.

ORDERING GOODS, no intention to pay, postal crime, 192.

ORDINANCE — purchase, sale or disposal of, 412.

OTHER OFFENSES, 86; 113.

OUTSIDE COVER, or wrapper, postal, what is, 185.

PACIFIC ISLANDS, sale of arms or intoxicants, 557.

PANDERING, see white slave.

PARDON, cannot compel acceptance of, 17; power to, 651; acceptancer
of and power, continued, 651; see parole.

PAROLE, see pardon; see punishment; see sentence; acts relating to,
655; 688.

PARTICULARS, bill of, 122.

PASSPORTS, 246.

PASSENGERS— customs duties, 658.

PASS ANTI LAW, 459.

PATENT, 'etters, forgery of, 339; 768.

I'AUPER, defendant, process, 19; 120; 144; witness for, 655; right
of appeal, 655.

PERJURY, 277-807; form of oath, 277; competent tribunal, etc., 278;
must be authorized, 280; U. S. Com., 281; materiality and wil-
fulness, 282; indictment, 284; proof, 285; cases, 286; subornation
of, 287; 808; elements, 288.

PENAL CODE, 755— appendix— 755-911.

PEONAGE, 520; see slaves; obstructing peonage law, 526.

PIGEONS, homing, 678.

PILLORY— abolished, 644.

PIRACY, 544; 545; 555; 556; 557.

PLATES, counterfeiting, 251.

Index. 975

poison in mails, 231.

political complexion of grand jury, 43.

POLITICAL CONTRIBUTIONS, 334; 678; 686; 804; 805; soliciting in
public buildings, 687; 805.

POLITICAL ELECTIONS, corporations not to contribute to, 404;
political contributions, publicity, 655; contributions to influence
election of Congressmen, 676; 678.

POLYGAMY, 562.

POOR, see pauper.

POSTAL CRIMES, 147; 149; breaking and entering P. O., 149; postal
car, postal clerk, 152; robbing, assaulting carrier, letter boxes,
etc., 153; obstructing mail, 155; mail on train, 156; ferryman, 157;
detaining or destroying newspapers, 157; detaining or destroying
mail, 158; opening another's mail, 158; 164; decoys, 159-163;
stealing, etc., mail, 164; injury to letter boxes, 153 and 164; mail
protected, 168; obscene matter, 168; prevention, abortion and con-
ception, 168-177; scurrilousness, 177; knowledge, 177; indecent,
filthy, 168-188; arson, murder, assassination, 179; 181; prize figlu
films, 179; paid editorial to be marked "ad," 180; libelous, in-
decent wrappers, etc., 182; outside cover or wrapper, 185; duns,
postal cards, etc., 187; fraudulent use of mail, 188; threatening
letter, 191; fictitious names, 202; lottery, 204; postmaster not to be
lottery agent, 213; oath of office, failure to take, no defense, 213;
false return to increase compensation, 213; civil remedy, com-
pensation, 215; unlawful postage, 216; stamps, unlawful sale or
pledge of, 216; stolen property, possession of, 218; failure to
account for postage and to cancel stamps, 218; money order, is-
sue without money, 219; conviction under one no bar to under an-
other, when, 220; counterfeiting M. O., counterfeiting postage
stamps, domestic or foreign, 223; misappropriation of funds, 225;
rural carriers responsible for funds, 228; stealing postoffice prop-
erty, 229; other offenses, 229; carrying mail illegally, 231; poisons
and explosives, 231; liquor, ads, 231; fraud order, 247; false
evidence as to second class mail, 680; cancelled stamps, etc., 681;
pension agent taking fees, 322.

PRACTICE, 23; 114.

PRELIMINARY PROCEEDINGS, 45.

PRESIDENTIAL WARRANT, 247; power to enforce neutrality, 414.

PREVENTION OF CONCEPTION, 168; see postal crimes.

PRIMARY ELECTIONS, 442.

PRINCIPALS, who are, 652; 653.

PRISONERS, 247; see sentence; allowing to escape, 303; 812; rescuing
or concealing, 304; 813; of executed, 305; 813; 814.

PRIVATE DWELLING, entry and search, 5; 22.

PRIVATE PROSECUTOR, 3.

PRIZE FIGHT FILMS, 179; 566.

PRIZE PROPERTY, delaying or defrauding captor or claimant, etc.,

774.

976 Index,

probable cause, 3.

PROCESS, stealing or altering, 288; obstructing, 289; 813; assaulting
officer, 289; 813; advice may be, 294.

PRODUCTION, documentary evidence, forced, 68.

PROHIBITION, statutes and searches and seizures, 8; see Volstead
Act.

PROPERTY, destroying or rescuing, 391; 778.

FROSTITUTES, harboring, 642; see white slave act.

PUBLIC LAND, 245; timber, 385; 386; 387; fires on, 388; breaking
fences, 388; monuments, 388; bids for, 389.

PUBLICITY, of contributions, 655.

PUBLIC MONEYS, embezzlement, etc., of 315; 316; 321; 777; 778
treasurer failing to keep, 794; custodians, 794; render accounts,
794; 797; failure to deposit, 795; 797; see embezzlement; see
officers.

PUBLIC MONEY, embezzlement, deposit of, 685; 778; disbursing
officer, converting, etc., 793.

PUBLIC RECORDS, stealing or destroying, 294; 809; by officer in
charge, 296; 809; forgery of, 340; 809.

PUBLIC STOCKS, false personation of holder, 350.

PUNISHMENT — forms, 643; no corruption of blood or forfeiture, 643;
whipping and pillory abolished, 644; state courts, 644; see sen-
tence; see verdict; body of offender, 652; hard labor, 654; imprison-
ment, 654; parole, 655; 688.

RAILROADS, Interestate Commerce Commission, 471.

RAPE, 537; of female passenger on ship, 538.

REASONABLE DOUBT, 154.

REBELLION, 756; 757.

ROBBERY— or larceny, U. S. property, 379; 380; 540; 777.

RECEIPTING FOR LARGER SUMS THAN PAID, 314; 793.

RECEIVERS OP STOLEN PROPERTY, 382; 541; 778.

RECRUITING— soldiers or sailors to serve against U. S., 411.

REED AMENDMENT, 450; 475.

REGULATIONS, by Com. Int. Rev., 247.

REMOVAL, 48.

REPEAL OF LAW, right to prosecute, 247.

KKPTILES, importation, etc., 454.

RESERVATION— U. S. see military; also, 781; monuments, fences,
gates etc., 781; surveys, 781.

Index. 977

REVENUE LAW, what is, 247; resisting officer, 391; presents to officer,
393; taking seized property, 397.

RURAL ROUTE, carriers, responsible for funds, 228.

SAILORS— Shanghaiing, 679, 790.

SALE, what is, 247.

SEAMEN, the act, 247.

SEARCH WARRANT, 5-22; 275; see searches and seizures, 688; ship-
ment, false claim for damages to, 243; stamps, unlawful sale or
pledge of, 216; failure to cancel, 219; state court jurisdiction, 248.

SEARCHES AND SEIZURES, 3; 5-22; see search warrant; seizures,
venue, 692.

SECOND CLASS MAIL, evidence as to, 680.

SECURITY— of U. S., 249; 255; 258; mutilating or putting advertise-
ments, 264; 265; notes of less than one dollar not to be issued, 266;
to be forfeited, 274.

SEDUCTION, of female passenger, 538.

SENTENCE — correction — place, etc., 94; 97 resentencing, 99; 247; see
prisoners; see punishment; good behavior, 688.

SERUMS, 245.

SEVERANCE, 102.

SHERMAN LAW, 136-141.

SIMILITUDE— in counterfeiting, 251; 268.

SLAVES, 511; seizing, bringing into U. S. equipping vessel for, 513;
transporting, 514; hovering on coast with slaves aboard, 514; serv-
ing on vessel engaged in slave trade, 514; receiving or carrying
away person to be, 515; equipping vessel for, 515; continued,
516-520; peonage, 520; see white slave.

SMUGGLING, 657; passengers, 658; officers, 659; false samples, 664;
concealing or destruction of invoices, 664; 783; decisions, 664:
various offenses under these acts, 785.

SPEEDY TRIAL, 4.

SPEECH, free, 241.

STATE LAWS, punishment under, 542; 560; state courts, 644; conflict
with federal, 645; 649.

STEALING, postoffice property, 229; court process, 288; public records,
294; U. S. property, 379; 380; receivers of, 382; 541; 778.

STEAMBOAT— inspector— illegal fees, 322; 799.

STENOGRAPHER'S NOTES, 13; 44.

STOLEN PROPERTY, possession of, 218; receiving, 778; see other
"Property" Head.
62

978 Index,

stockyard regulations, 675.

STRIKES, 248.

SUBORNATION OF PERJURY, 287; attorney suborning, 288; elements
of, 288.

SUBPOENA DUCES TECUM, 247.

SUPERSEDEAS, 119; 143; see bail.

SUSPENSION OF SENTENCE, 96.

SUPREME COURT, direct to, 119; 120.

SUPREME LAW, 1.

TECHNICAL ERRORS, 122,

TELEGRAPH, telephone U. S. injuries, etc., 389; 678; 782.

TERRITORY CODE, 559.

TESTIMONY, expert, 241.

THEFT — see embezzlement, U. S. property; larceny; of goods in inter-
state shipment, 460; auto, 462.

THREATENING LETTERS — threats; see postal crimes, also, 191.

TIMBER— depredations, 383; 778; 779; 780.

TRADE COMMISSION, Federal, 138.

TRADING WITH THE ENEMY ACT, 248.

TRAIN ROBBERIES, 566.

TRANSPORTATION, government control, 248.

TREASON, 3; 5; 755; misprision of treason, 409; 755; seditious con-
spiracy, 411.

TREASURER— failing to keep public moneys, 794.

TRIAL, 3; 19: public, 26: constitutional, 26; 27; of defendant while
he is serving term, 248.

TRUST STATUTES, 136-141.

UNITED STATES COMMISSIONER, 27.

UNITED STATES CONSTITUTION, 1.

UNITED STATES, recruiting soldiers or dailors to serve against—
enlistment against, 757; enlisting in foreign service, 758.

UNITED STATES, suits against, 248; vessels of, defined, 558; exclusive
jurisdiction, 649.

"UNKNOWN," in indictment, 248.

Index. 979

cnlawful postage, 216.
'•unreasonable charge," 4; 643.

UNREASONABLE SEARCHES AND SEIZURES, 3; 5-22; 665; see
Volstead.

VENUE, indictment returned where, 43; 56; change of, 248; 691;
civil and criminal, 691; seizures, 692.

VERDICT, impeachment of, 53; 54; setting aside, 85; 94; coercing of:
motion to direct, etc., 141; qualified, 652; see punishment.

VESSEL, punishment for bringing in improper immigrants, 117; se-
duction of passenger, 538; loss of life by misconduct of officer on,
etc., 538; what is, 539; mistreatment of crew, 546; mutiny, 548
abandonment of mariners, 551; to cast away, 552; plundering, 552
destroying, 554; running away with, 567; of U. S. defined, 558
penal provisions as to, see, 759; papers, 786.

VIRUSES, 245.

VOID WARRANT NO PROTECTION, 5; 68.

VOLSTEAD ACT, 476; penalties, 493; witnesses, incriminating, 494;
venue, 494; affidavit or indictment, bill of particulars, 495; posses-
sion of liquor, 495; private dwelling, 495; records, 496; liquor taxes,
compromising, etc., 496; employees to enforce, 498; industrial al-
chol, 499; property of non-violator, 499; tax free alcohol, denatur-
ing, etc., 502; decisions under act, 505; repeals some revenue laws,
506; conflict of state and federal under act, 645.

VOTE — false certificate of citizenship used, 401; 789; right to, 437;
intimidation of voters, soldiers at polls, 441; officers of army and
navy, 44.

W.
WAIVING OF JURY, 79.

WARRANT, issue only upon probable cause, etc., 3; search warrant,
5-22; void warrant no protection, 5; 268; to issue when, 46; by
President, 247; 688.

WAR— INSURANCE, 679.

WEATHER FORECASTS, counterfeiting, etc., 337; 390.

WHITE SLAVE, act, 631; decisions, 632; pandering, 636; act, 638;
decisions under both acts, 639; wife witness, when, 640; harboring
prostitutes, etc., 642.

WHIPPING— abolished, 644.

WIFE, cannot be witness for husband, 248; see White Slave, 640.

WILFULNESS— in perjury, 282; Bank violations, 595.

WITNESS— confronted by, 4; 19; 20; process for, 4; treason, 5; against
self, 13; competency of governed by U. S. law only. 21; 22; former
conviction. 112; wife, 248; husband, 248; corruption or intimida-

980 Index.

tion of, 297; 811; bribery of, 308; 811; fees of, must not trade in,
321; 799; for pauper, see pauper.

WORKMAN— enticing away, 378.

WRITING, handwriting, 145.

WRIT OF ERROR, 119; 120; 125; see errors and assignment of error,
143; right of paupers to, 655; forms for, 747.

III1II^1VV,H1

000 594 075 4

University of California Library
Los Angeles

This book is DUE on the last date stamped below.

SEP 2 3 1999"

11111
ill

III

HlP

Internet Archive Audio

Featured

Top

Images

Featured

Top

Software

Featured

Top

Books

Featured

Top

Video

Featured

Top

Mobile Apps

Browser Extensions

Archive-It Subscription

Save Page Now

Full text of "A treatise on federal criminal law and procedure, with forms of indictment and writs of error and the federal penal code"

See other formats